The Supreme Court of Canada on Thursday put an end to former minister Maxime Bernier’s last-ditch attempt to challenge the legality of certain health measures put in place during the COVID-19 pandemic.
The Beauceron politician challenged in Federal Court the emergency orders and ministerial orders that required passengers to be vaccinated against COVID-19 in order to be allowed to board a plane. This obligation was imposed by Ottawa between October 29, 2021 and June 20, 2022.
Since this requirement ended before the case was heard, the Federal Court struck out Mr. Bernier’s application on the grounds that it had become “moot.” This is the case when a case does not present any current litigation that could have had consequences on citizens’ rights.
On Thursday, the country’s highest court put a definitive end to Mr. Bernier’s legal adventure, deciding not to hear his case. That ends his hopes of seeing a judge rule on the merits.
Two other similar lawsuits also met the same fate Thursday. Citizens’ groups, including one led by former Newfoundland premier Brian Peckford, had also brought challenges to pandemic measures before the court, including the vaccination requirement for train travel.
Maxime Bernier is currently the leader of the People’s Party of Canada, a federal third party that has never managed to elect an MP in an election and has made opposition to health measures a trademark during the pandemic. The former minister in Stephen Harper’s government, who came within a hair’s breadth of becoming leader of the Conservative Party of Canada (CPC), was notably handcuffed during a tour of Manitoba in 2021 because he had violated restrictions related to the size of gatherings allowed during the pandemic.
In this series of first instance judgments that decided not to rule on the merits of the issue of the legality of the vaccination requirement for train and air travel, the Federal Court noted that it is not its place to dictate the government’s future actions. These decisions were upheld on appeal by a joint judgment, “despite the fervour displayed by the parties.”
The Federal Court of Appeal has reiterated that courts should refrain from expressing opinions on questions of law in the abstract or when it is not necessary to decide a case, particularly to avoid adding to the workload of courts that are already overburdened.
She added that, in any case, the case law is well established on the subject: the challenges to the vaccination obligation were brought in the very specific and exceptional context of a global pandemic. To decide these new requests would amount to repeating what has already been said about the rights of citizens conferred by the Charter — and their limits. Provincial and federal measures enacted to protect public health have been validated by the courts when challenged.
Despite this setback for citizens who feel they have been wronged by the exceptional measures put in place during the COVID-19 pandemic, other challenges are still making their way through the justice system. The Supreme Court of Canada, for example, is deciding the legality of a travel ban that prevented a Newfoundland woman from visiting her dying mother. A lower court ruled that her right to leave Canada was violated, but that it was justified in the circumstances.