Hearing on federal government travel vaccine ban postponed

CALGARY: The Federal Court has postponed the trial date for the Justice Centre’s legal challenge to strike down the federal government’s mandatory Covid vaccine requirements for air travellers (the “travel ban”), after the Government of Canada requested the hearing be adjourned. The September 19, 2022 hearing has been rescheduled to Monday, October 31, 2022.

In October of 2021, the federal government announced that anyone travelling by air, train, or ship, must receive the required number of Covid vaccines in order to travel. The travel ban prevented approximately 6 million vaccine-free Canadians (15% of Canada’s population) from travel within Canada and prevented them from flying out of Canada. Canada’s new definition for vaccination as including required boosters could double or triple the number of affected Canadians should the travel mandate be renewed in the future.

The Justice Centre filed evidence in March 2022 on behalf of 11 witnesses, including five expert witnesses. The evidence filed shows how the Canadians involved in the lawsuit cannot travel to help sick loved ones, get to work, visit family and friends, access health care outside of Canada, take international vacations, and live ordinary lives. Expert medical evidence now filed with the court ranges from scientific evidence about Covid spread among both vaccinated and unvaccinated, risks associated with taking the new Covid vaccines, vaccine harms such as myocarditis and possible effects on fertility, and the superiority of natural immunity.

The Federal Government filed evidence in April on behalf of 16 witnesses, including five experts in defence of the Travel Ban. Justice Centre lawyers spent all of June 2022 in cross examination of these government witnesses in preparation for the full trial in fall.

Despite that the court ordered this action, involving four separate cases, to be consolidated, and that it be heard on an expedited basis, given the serious infringement on Canadians’ mobility rights and other rights protected under the Canadian Charter of Rights and Freedoms, in a letter dated Sunday, June 19, 2022, Canada stated the adjournment was required due to:

  • the fact that the urgency to have these applications heard and determined has, at a minimum, been significantly reduced;
  • the information just received from the Translation Bureau that they will require a minimum of 18 business days to prepare an official translation of Canada’s Memorandum of Fact and Law; and
  • the recent unexpected need to reassign a new senior lead counsel for these applications.

Responding for the Justice Centre on June 22, 2022, legal counsel strongly opposed Canada’s request to adjourn the matter.

“The application remains a live controversy, is of continued constitutional significance, and has not been deemed otherwise by the Court. It is submitted that a matter of such importance should be heard as expeditiously as reasonably possible, and that Canada has not established any compelling or exceptional circumstances to warrant the delay of this application. It is submitted that the request for adjournment should be denied,” states the letter.

The Court decided to grant the government the adjournment, ruling that any prejudice against the Applicants represented by the Justice Centre could be addressed by awarding costs (a monetary amount for legal expenses). The Court added that while none of Canada’s requests individually justified a delay, “taken together, they constitute the kind of extraordinary circumstances that justify adjourning a hearing.”

In a June 14, 2022, Federal Government news release, the government announced that as of June 20, vaccine requirements would be suspended “for domestic and outbound travel, federally regulated transportation sectors and federal government employees.”

Below is an updated schedule of the Travel Ban lawsuit:

August 5: Service and filing of Applicants’ Records and Response to the Respondent’s Mootness Application (Mootness means the government will argue that with the suspension of travel ban, the legal action is now pointless.)
September 21: One day in-person Mootness Hearing
September 30: Service and filing of Respondent’s Record
October 31 – November 4: Hearing

“We are eager to have this matter heard in court. Similar Covid 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, and the fundamental right of mobility, to enter and leave a free and democratic country,” notes Justice Centre lawyer Eva Chipiuk.

“Canadians cannot live in a country which will not permit them to freely leave for business, for necessary medical care, to see loved ones abroad, to vacation, or simply to move away. Any country that makes receipt of a drug or medical treatment a condition to departing the country has lost all semblance of freedom and respect for human dignity,” states Ms. Chipiuk.

“Canada was one of the few countries in the world that had a travel ban on unvaccinated citizens flying within the country and to different provinces. This travel ban has not been cancelled, only suspended, and so court action must continue,” notes Ms. Chipiuk.