CALGARY, ALBERTA: The Justice Centre for Constitutional Freedoms is pleased to announce that on Thursday, April 13, 2023, lawyers for the Honourable Brian Peckford, the Honourable Maxime Bernier, and others, filed their written arguments in support of their appeal of the October 20, 2022 decision of the Federal Court that found their case was “moot”.
The Federal Court notified the parties that the constitutional challenges against the federal government’s travel mandate during the Covid-19 pandemic were struck for being “moot,” just eleven days prior to the start of the constitutional hearing, which had been scheduled for October 31, 2022.
The Federal Court issued full reasons on October 27, 2022. In her reasons, Associate Chief Justice Jocelyne Gagne found that the use of judicial resources for a five-day hearing, when the travel mandate had already been lifted, outweighed the public interest in having the case heard on the merits.
The written arguments focus on the Federal Court Judge’s failure to give proper weight and consideration to the Minister of Transport’s threat made in a public statement “to make adjustments based on the latest public health advice and science to keep Canadians and the transportation system safe and secure.”
They further highlight the Judge’s error in properly engaging in the three-part legal test she was supposed to perform as part of her analysis of whether to exercise her discretion to hear the case. The legal test, from a Supreme Court of Canada case, identifies that the court, when deciding whether to exercise its discretion to hear a “moot” case, ought to consider the following factors:
- The existence of a truly adversarial context;
- The presence of particular circumstances which justify the expenditure of limited judicial resources to resolve moot cases;
- Respect shown by the courts to limit themselves to their proper adjudicative role as opposed to making free-standing, legislative type pronouncements.
The Federal Court Judge failed to consider the third factor in her decision.
The federal government will file its written submissions in response and then a date will be set to have the appeal heard.
“The federal government’s threat to reinstate the travel mandate should have been the deciding factor for the Federal Court to hear this case,” states Allison Pejovic, legal counsel for the Honourable Brian Peckford and other Appellants. “The public interest in this case is staggering. Canadians need to know whether it is lawful for their own federal government to prevent them from travelling across Canada or leaving the country based upon whether they have taken a novel medication,” continued Pejovic.
“We hope the Federal Court of Appeal grants this appeal so that this very important case can be heard.”