“Justice must not only be done, but demonstrably seen to be done.”
–Lord Chief Justice Gordan Hewart

 ALEXANDER BRIGHTON: Yesterday, associate Chief Justice of the federal court Jocelyn Gagne dismissed the Peckford Charter challenge (along with the three other related lawsuits) concerning the federal Liberal government’s travel ban against unvaccinated Canadians. The Honourable Brian Peckford is the last surviving signatory to the Charter of Rights and Freedoms (and also Chairman of TBOF).

To be clear, the Judge did not find against Peckford et al. Rather, the federal government requested that the court to refuse to hear the case on the basis of “mootness”. That is, because the federal government had already removed (in truth, only “suspended”) the travel ban, there was no “live issue” before the court and therefore should be dismissed. Justice Gagne agreed.

Peckford’s challenge concerned the Ministerial orders that prohibited unvaccinated Canadians from travelling by plane within or out of Canada. Peckford raised the challenge in January 2022 and despite the order severely impacting the Charter rights of over 6 million Canadians, the court decided to not hear the matter until Fall 2022.

In August, parties began to present evidence. As journalists then noted, it was brought to light that the government could not provide any scientific justification for its vaccine mandates, and moreover that not a single Department or public servant recommended them to government: they were always a purely political decision. Despite the government having suspended the travel mandates in June, they only motioned in September to have the entire lawsuit thrown out as moot.

Both parties and the court agreed that the case should be heard expeditiously. In agreeing to consider the mootness application, Justice Gagne committed to render a decision in 10 days. She took 30, then ruled for the government, and refused to provide reasons at this time (“reasons will follow later”).

The entire handling of these challenges is a grave miscarriage of justice, and part of a deeply concerning trend occurring in Canada, both generally, and in particular concerning any attempt to hold the provincial or federal governments accountable for their pandemic policies.

The legal doctrine of mootness enables the courts to efficiently manage their limited resources by agreeing to not continue hearing a dispute that has, for whatever reason, become “academic or hypothetical” which could include that the controversy between the parties no longer exists or that a decision would not impact it.

We do not know Justice Gagne’s reasons yet, but we do know that the government argued that because the travel mandate was rescinded, there was no restriction on Peckford’s rights and therefore no “controversy” or issue to decide on, and that even a decision in Peckford’s favour would be moot as the policy was gone.

However, the doctrine of mootness also considers whether the underlying issue, even if legitimately moot in their specific circumstances, is of a particularly adversarial context or concerning the public interest in such a manner to justify expending the courts resources to fully consider and rule on the matter.

It appears that Justice Gagne has decided that determining whether the current or future governments can severely restrict Canadians’ travel rights on the basis of medical status is an issue that is not worth examining.

This case impacted all Canadians, not just the unvaccinated. The government has stated many times now that just being “vaccinated” (i.e., two doses) does not count. You must be “up-to-date”, which as of October 21, 2022, means 4-5 doses of a failed pharmaceutical that provides no protection at best and carries significant risks at worst. If the federal government reactivated the travel ban (which they plainly stated they might, and continue to regularly threaten could come back), anywhere from 6 to 20+ million Canadians could find themselves impacted.

The case was also raising critical questions over how much governments can restrict our Charter freedoms on the basis of “the science”, without every showing Canadians the science they are relying on.

In short, to Justice Gagne, the most unprecedented government restrictions of civil liberties since the FLQ crisis in the 1970s are moot now, covid is over. Harms from government policies are hypothetical or abstract.

Imagine the Court ruling on the government’s use of residential schools as “moot”. Stop living in the past! The schools are closed! It was a different government!

Lord Chief Justice Gordan Hewart once wrote that, “justice must not only be done, but must be demonstrably seen to be done”. That is, the rule of law must be upheld in both letter and in spirit.

Perhaps Justice Gagne found technical correctness in the government’s mootness request. But given the public interest at play, that Canadians are rapidly losing faith in our institutions, and that a sizeable segment of society feels increasingly alienated and unrepresented, it warranted letting this play out, if only to let all Canadians see that both sides got their day in court.

Perhaps Justice Gagne should have recused themselves entirely, given they were appointed to their current role by the current government, which is the target of such animosity now. Reasonably perceived conflicts of interest are always a consideration. The greater the potential controversy, the lower the threshold for triggering a perceived conflict. Justice Gagne may very well be free of bias herself, but that is not what many Canadians are seeing – including allegations from competent journalists that she donated to the liberal party in the past.

And Canadians have every right to be concerned about the partiality of our justice system. A liberal appointee (and also potential donor) presided over the Peckford case. A liberal appointee (and lawyer from Trudeau Sr’s old law firm) is presiding over the Public Order Emergency Commission. A liberal donor and failed candidate (endorsed by the Prime Minister himself) presided over and denied Tamara Lich’s bail.

Our nation is frayed, for a myriad of reasons. The coming economic recession will push Canadians against one another even further. Our civic leaders and magistrates should be seeking for any and all opportunities to bring us together and restore trust in our laws, institutions, and Parliament.

Justice Gagne has instead chosen to cowardly pass this political “hot potatoe” to whichever judge gets assigned the appeal.

 

Alexander Brighton is a Canadian lawyer.