Federal Court to hear challenge to Canada's COVID-19 vaccine requirement for travel

Constitutional lawyers are set to argue against the federal government’s mandatory COVID-19 vaccine requirements for air travellers.

The action brought against the federal government will be heard Sept. 19 – 23 at the Federal Court of Canada, which resolves problems arising from applications of federal laws.

“We are eager to have this matter heard in court,” said constitutional lawyer Eva Chipiuk in a statement to media Thursday.

“Similar COVID-19 mandate cases have been adjudicated in the United States, India, and New Zealand. Courts around the world have found that governments must respect fundamental human rights, including the right to bodily autonomy, which means individuals have the right to decide freely on what medical treatment they wish to receive.”

In October 2021, the federal government mandated that anyone travelling by air, train, or ship, must have had the required number of COVID-19 vaccines in order to travel. This travel ban has prevented approximately six million vaccine-free Canadians (15 per cent of Canada’s population) from travelling within Canada and also prevents them from flying out of Canada, said constitutional lawyers Allison Pejovic, Eva Chipiuk, and Keith Wilson, who represent the plaintiffs.

Only living drafter of Canada’s Constitution leads court action

The court filing shows that the action was brought against the Attorney General of Canada by former Newfoundland Premier Brian Peckford - who is the only surviving drafter and signatory to the 1982 Constitution and Canadian Charter of Rights and Freedoms.

“What I find perhaps the most disturbing is that the federal government has mandated a two-tiered society where one group of people has benefits while another group is disadvantaged,” said Peckford in his sworn affidavit. “As a person who has chosen not to receive the new medical treatment, I am all of a sudden treated as an outcast, labelled a ‘racist’ and ‘misogynist,’ and as an undesirable person not fit to be seated with vaccinated people on an airplane.

“The COVID-19 vaccinated are allowed to travel by airplane and to see their families and the unvaccinated are not," wrote Peckford. "This is not the Canada I know and love, and this type of segregation causes me utmost sadness."

Also listed on Peckford’s court filing are Leesa Nikkanen, Ken Baigent, Drew Belobaba, Natalie Grcic, and Aedan MacDonald.

Cross-examination ongoing

In March, lawyers from the Justice Centre for Constitutional Freedoms - who represent Peckford – filed evidence on behalf of 11 witnesses, which included five expert witnesses. Cross-examination of the applicants affidavits are expected to be finished by the end of May.

In April, the federal government filed evidence on behalf of 16 witnesses including five experts in defence of their travel ban. Currently, lawyers from the Justice Centre for Constitutional Freedoms based out of Calgary, Alta., are cross-examining government witnesses in preparation for the full trial in September. The cross-examinations are expected to wrap-up by the end of June.

Three other cases heard same time

The Federal Court has consolidated four separate cases against the federal government. This means that they will all be heard at the same time.

The other three cases to be heard with Peckford’s case include cases filed by Maxime Bernier, Nabil Ben Maoum, and jointly by Shaun Rickard, and Karl Harrison.