Home » Justice Delayed & Justice Denied: Peckford Charter Challenge Thrown Out
“Justice must not only be done, but demonstrably seen to be done.”
–Lord Chief Justice Gordan Heart
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.
4 thoughts on “The Organization Taking Back Our Freedoms( www.tbof.ca)Of Which I am Chair , Has A Great Article On The Lawsuit From A Canadian Lawyer”
Well said and easily understood. Thank you.
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Once Apon a time a prime minister by the name of Jean Chretien stated that Canada is not a Gulag. The French are reputed to say that nothing is true until it is officially denied. So, if Canada is a Gulag because our former prime minister denied that it was one then my fellow citizens your government and its allies and servants are your prison guards, and you are their inmates and slaves. A nasty statement to be sure but perhaps it is truer than you think. If they would ally with the USSR during WW2 it stands to reason that they really had no fundamental disagreement with communism or the people behind it. You have merely noticed recently that their mask has slipped revealing the nature of those in charge.
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Brian, consider the following.
Somebody rams my car with his. Damage was done. I claim to my insurance seller. The claim is rejected. Reason given: Damage is no longer being done. I check my insurance contract, the terms and conditions, and indeed that is precisely a valid reason to reject such claim. The insurance I purchased insures against on-going damage and no other kind of damages.
Somebody steals my car. It’s my property. I claim to the police. The claim is rejected. Reason given: The thief isn’t currently stealing your car. I check the criminal code, the pertinent sections, and indeed that is precisely a valid reason to reject the claim. The criminal code makes theft an offense on the condition that it is being done currently at the time of the claim, and on no other condition.
Somebody travels, breathes, goes shopping, walks on the sidewalk, goes to work, enjoys a day at the park, meets with and talks to people, generally goes on about his life. The government prosecutes on the grounds that these offenses are on-going. I check the orders, the decrees, and indeed that is a valid reason to prosecute.
The last living writer of the Canadian Charter of Rights and Freedoms claims for damages resulting from government prosecution of on-going offenses, specifically the offense of travel. The claim is brought before a high court. The claim is rejected. Reason given: Travel is no longer an offense. I check the orders, the decrees, and indeed that is a valid reason to reject the claim. The orders, the decrees, have been suspended in that regard.
In conclusion. The high court, indeed any court, now has the authority to reject a claim on the grounds that it is related to an act which is no longer an offense, as a fruit of the claimant currently enjoying the privilege of committing this act while also enjoying the immunity from prosecution by government, and this as a fruit of government having suspended the orders and decrees which make such an act an offense. Meaning that only a claim which is made while the claimant enjoys both the privilege to commit the act, and while the claimant enjoys immunity from prosecution by government, and while government is currently prosecuting the claimant anyways, will be accepted and heard in due course.
All of the above is completely and utterly insane, right? That is, If we’re wearing the Canadian Charter of Rights and Freedoms eyeglasses. If instead we’re wearing the privilege and condition eyeglasses, it all makes sense. Satisfy a condition, obtain a privilege.
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Brian Peckford, I am sending you a link to an interview with a physician and a lawyer in India who are talking to attorney Mary Holland of Children’s Health Defense. They are answering her questions about a lawsuit against the COVID shot mandates in India that had a really good outcome. A higher court that ruled that all COVID shot mandates in India are illegal. Mary Holland thinks that their win can be cited as a precedent in courts in those democracies that have a similar system of law, such as the United States and Australia. She didn’t mention Canada, but perhaps that is true here also. I wish you good luck in your appeal. Virginia