Rupa Subramanya: Despite being on the way out, travel mandates warrant judicial oversight

The government is arguing that, since most of the onerous parts of the mandates have been lifted, the lawsuit challenging them is now moot and should be dismissed. This would set a dangerous precedent

Rupa Subramanya

Publishing date:

Sep 27, 2022  

Travelers walk past a "Mandatory COVID-19 Testing" sign at Pearson International Airport in Toronto, in 2021.
Travelers walk past a “Mandatory COVID-19 Testing” sign at Pearson International Airport in Toronto, in 2021. PHOTO BY CARLO ALLEGRI/REUTERS

At long last, all of the federal government’s remaining pandemic travel restrictions will expire on Oct. 1. The feds will ditch the problem-plagued ArriveCan app, testing and quarantine requirements for those entering Canada, as well as mask mandates on trains and planes. Canada is, finally, getting closer to other major western countries, rather than being an extreme outlier in terms of how long stringent restrictions have been maintained in the face of a retreating pandemic.

The expiration of federal travel mandates may not be purely accidental. For one, new Conservative Leader Pierre Poilievre has for months been hammering away at the clunky and error-prone ArriveCan app. And, perhaps equally significantly, an important legal challenge to the travel mandate has been working its way through the court system.

The challenge brought by Shaun Rickard and Karl Harrison, two British-born Canadian entrepreneurs, and is being litigated in the Federal Court by Toronto-based attorney Sam Presvelos. Since the federal government removed the vaccine mandates for foreign and domestic airline travel over the summer, the attorney general filed a “mootness motion” against the civil lawsuit brought by Rickard and Harrison.

In layman’s language, the government is arguing that, since most of the onerous parts of the mandates have been lifted, the lawsuit challenging them is now moot and should be dismissed. On Sept. 21, the Federal Court of Canada, under Judge Jocelyne Gagné, began hearing submissions from Presvelos and lawyers representing the attorney general, which I attended via Zoom.

In making the case that the suit should be dismissed, Robert Drummond, counsel for the attorney general, argued: “I think it’s fair to say that (there is) no evidence that such travel measures are returning. The statements made by ministers are political statements and press releases, not legal statements.”

In other words, the government’s lawyers made the extraordinary argument that what politicians say should be ignored, since such statements have no legal force. Pushing back, Presvelos argued: “My friend (the attorney general) would like this court to believe that media statements don’t matter. They are not legal statements. (I’m) not sure what type of democracy we exist in if we cannot trust the truthfulness of statements being made by government ministers.”

What’s at stake here are not just legal niceties in a civil proceeding brought by two individuals against the government, but serious issues that concern the status of charter-protected rights in Canada, and how we should understand statements on policy made by the politicians who govern us.

As for the COVID mandates, the issue is not merely theoretical or academic, as none less than Prime Minister Justin Trudeau has broadly hinted, as recently as Tuesday, in his announcement that the remaining travel mandates were to be lifted, that fresh measures may be in the works in the event that we see a resurgence of COVID. The notion that such pronouncements, by the country’s prime minister and key members of his cabinet, may just be ignored, because they don’t in and of themselves carry legal force, is preposterous and bizarre, to say the least.

The Rickard and Harrison case against the government has wider significance when it comes to public scrutiny and accountability. If the Federal Court agrees with the government that the case is moot, because the most onerous part of the mandates have been suspended, it would effectively legitimize the practice of restricting constitutionally protected rights, so long as the restrictions are removed before the courts have a chance to hold the government accountable.

If, for example, a future government measure that arguably impinges on charter-protected rights and freedoms is withdrawn just before it comes before the courts, this would surely undermine trust both in government and in our judicial system. It would allow the government to get away with anything, so long as it does so fast enough to avoid legal scrutiny.

This cannot be the basis for a healthy society that’s governed by the rule of law. As Presvelos noted to the court, such skirting around judicial oversight “incentivizes the government to take risky and constitutionally dubious measures knowing that as long as the revoke them before a hearing they can effectively act with impunity.” Indeed, let’s not forget that the Trudeau government used a version of this tactic already, when it withdraw the use of the Emergencies Act just before it came up for debate in the Senate.

More specifically, on the federal vaccine mandates for travel, the government’s heavy-handed approach created a conflict between two fundamental individual rights — the mobility rights of Canadians and their right to bodily autonomy. On the one hand, if you wanted to travel, you had to cede your bodily autonomy over whether to take the COVID-19 vaccine. If you asserted your bodily autonomy by not taking the vaccine, you gave up your right to mobility.

Such a stark choice being forced on Canadians, between two different fundamental rights, is unprecedented. A dismissal of the Rickard-Harrison case on grounds of mootness will mean that there will be no judicial scrutiny or accountability on this fundamental dilemma, which, on the face of it, appears to breach Canadians’ charter rights.

For example, the Federal Court could rule that it’s a breach of charter rights for the federal government to force Canadians to choose between bodily autonomy and mobility, making any future mandates exceptionally difficult to enact. Likewise, if it ruled that the federal government acted legally, it would hopefully provide some clarity on how far the government is able to go with such measures. In either case, an appeal to the Supreme Court would be likely, and the matter would get resolved, one way or another.

None of this is possible if the government gets its way and the case is declared moot. Shaun Rickard and Karl Harrison deserve their day in court — not just for them, but for all Canadians who cherish our constitutionally guaranteed individual liberties.

National Post

%d bloggers like this: