Former Newfoundland premier Brian Peckford and People’s Party of Canada Leader Maxime Bernier are taking their battle against the air travel vaccine mandate to the Supreme Court.

The Justice Centre for Constitutional Freedoms, which is representing Peckford and Bernier on the appeal, announced the development in the case Thursday.

The challenge to the federal government’s Nov. 2021 vaccine mandate addresses the government’s requirement for proof of COVID vaccination for all travellers using federally regulated transportation services. 

“These restrictions on the Charter freedom of mobility prevented approximately 5.2 million unvaccinated Canadians from travelling by air and rail,” said the JCCF in a statement.

Peckford, Bernier, and several other applicants took the federal government to court in Feb. 2022, arguing the mandate was unconstitutional. They said the mandate infringed on Charter rights to freedom of religion, conscience and assembly, as well as mobility, security, privacy, equality, and democratic rights.

The federal government suspended the mandate in June 2022, with the caveat that it could be reintroduced if cabinet deemed it necessary.

In October of that year, the Federal Court struck down Peckford’s and Bernier’s case as moot, meaning there was no longer a live issue to be tried.

The mootness finding followed weeks of evidence submissions, cross-examinations, and trial preparations.

“The Federal Court was fully and properly equipped to render a thoughtful decision as to whether the travel restrictions had been a justified violation of Charter freedoms,” said the JCCF.

Bernier and Peckford appealed the decision to the Federal Court of Appeal but were unsuccessful.

In the initial court action, affidavits highlighted the significant negative impacts of these prohibitions on Canadians, especially given the country’s size.

Key revelations emerged during the legal proceedings, including admissions from government officials that the Public Health Agency of Canada had never recommended a vaccine mandate for air and rail travellers.

The government of Canada announced it would suspend all travel vaccine restrictions in June 2022.

According to the JCCF, the courts determined through the mootness decision that a constitutional challenge to unprecedented emergency powers was neither sufficiently interesting to the Canadian public nor an appropriate use of court resources.

Peckford, Bernier, and the other applicants are now asking the Supreme Court of Canada to hear their case. If the Supreme Court grants leave to appeal, there will be a hearing.

The issues raised in their case are of national importance, and Canadians deserve access to court rulings about policies that violate the Charter freedoms of millions of Canadians, the JCCF argues. 

“If courts are going to affirm and uphold emergency orders that violate our Charter of Rights and Freedoms whenever the emergency order is no longer in force, how can the Charter protect Canadians from government abuse?” asked John Carpay, president of the JCCF. 

Because emergency orders are discussed confidentially in Cabinet, it is only through court rulings that Canadians can learn whether a mandate or emergency order is constitutional. 

Allison Pejovic, the lawyer representing Peckford and Bernier, said that the Supreme Court of Canada has an opportunity to set an important precedent. 

“The court’s dismissal of constitutional challenges to Covid orders for ‘mootness’ has deprived thousands of Canadians from knowing whether their governments’ emergency orders were lawful or not,” she said. “It is time for the Supreme Court of Canada to expand the legal test for mootness to account for governments’ use of emergency orders, which are devoid of transparency and accountability. Canadians have a right to know whether unprecedented mandatory vaccination policies, which turned millions of Canadians into second-class citizens, were valid under our Constitution.”