Juno News - October 14, 2023
Could vaccine mandates return for air travel? (ft. Eva Chipiuk)
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Summary
Canadians were required to be vaccinated against tetanus shots in order to travel on planes and trains, but not to cross the border between Canada and the United States unless they were vaccinated against influenza. The federal government has since rescinded the mandate, but the federal court of appeal has yet to rule on whether they should actually have a hearing on the merits of this mandate in the first place.
Transcript
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now this may seem like a bit of a distant memory right now because it has been a couple of years
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since this was first floated it was something that justin trudeau promised in the 2021 election
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remember this you deserve a government that's going to continue to say get vaccinated and you
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know what if you don't want to get vaccinated that's your choice but don't think you can get
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on a plane or a train besides vaccinated people and put them at risk
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yeah he didn't just advocate for this policy or implement it justin trudeau campaigned on this he
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actually went to voters and said i would like to bar the unvaccinated from planes and trains and
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federally regulated workplaces you couldn't work as a bureaucrat in the federal department of
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widgets unless you were vaccinated against covid that was obviously a winning proposition justin
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trudeau emerged victorious in that election and proceeded with the policy and later the even more
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punitive policy of requiring vaccination from truckers to cross the border back and forth
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between canada and the united states but one of the things that i will point out about this is that the
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federal government had these mandates they escalated them they did them in spite of scientific evidence
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and data arguing against them science and data saying that these things were not actually necessary
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we're not keeping people out of the hospital we're not saving lives but the federal government persisted
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anyway so there was a challenge put forward by a number of different people one of them was former
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newfoundland premier brian peckford one of them was the leader of the people's party of canada maxime
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bernier now bernier in particular had a very interesting approach to this his case was not
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just i'm a canadian that wants to go and see grandma he was saying listen i'm a federal politician
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part of my job is to crisscross the country and speak to canadians this law is preventing me from
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doing something that is fundamental to democracy into the democratic process so that was the argument
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that was put forward now the legal process is very slow at times it took some time for this case to go
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before the federal court by the time it did the federal government had already rescinded the mandate
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now the language they used was that it was suspended it wasn't over it wasn't done they didn't say
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we're sorry we shouldn't have done this we're never going to do it again they said we're suspending it
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and we might bring it back and there was also another press conference where the government
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started talking about reworking its definition of fully vaccinated so it might have actually been
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the case where you had to be boosted within a certain period of time to travel so all of that is
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important context to the federal government's argument that we shouldn't even have a court case on
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this we shouldn't even hear this argument it is moot which is to say that it's not a live issue
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this is what's at stake the federal court said it's moot there's no point in hearing this the
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mandate's over that was the discussion that went towards the federal court of appeal yesterday which
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now has the decision to make about whether they should actually have a hearing on the merits of
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this mandate in the first place eva chipiuk knows this file well she joins me now a lawyer with
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chipiuk law eva good to talk to you again thanks for coming on today my pleasure thanks for having
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me now i mean obviously when we put the word moot in our stories we put it in quotation marks because
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it's a term that has a meaning in law and i think has a reason in law but it's one that i i think has
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been very convenient for the government here because anytime they've had an issue that they don't want
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to really have it answered in court they do this and oftentimes with alarming success even the
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emergencies act the federal government has said oh well i mean the emergencies act is over now
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nothing to see here it's all moot so it's not surprising they've tried that here but it's
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concerning that the courts have so far gone along with it very much agree with you on that and those
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were the arguments that of course the lawyers were making in court and um at the first instance uh i
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recall one of i thought the most powerful arguments that at least keith wilson brought forward is
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what are the other option for canadians that do you want to see them back in odawa with in a protest
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this is the forum to resolve these issues and these disputes especially issues that are this
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contentious and this polarized and and political in fact um so we're seeing these battles on twitter
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wouldn't it be a more sophisticated place to have this evidence heard and open to the public
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in an established forum like the court system so public interest is a huge point on it and so i can't
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see how they suggest that it's not in the public interest so you know i i think you probably saw in
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some of the tweets that 20 000 people were registered to watch that hearing yesterday that appeal i don't
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i doubt that that's ever happened in canadian history before so just on that fact alone it shows what
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an intense amount of public interest there is yes and i mean the one thing that the lawyers have mentioned
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both at the federal court level and in the appeal hearing yesterday also was that the government's own
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language suggests this was just a suspension they've not taken it off the table they've not said
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we'll never do it again and that's where i think the mootness argument kind of falls flat here because
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if you follow this through to its natural conclusion anytime the federal government does something on a
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temporary basis they can dodge accountability because they say well the fact scenario is different
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there's no point in having this discussion again there's no point in litigating the old one because
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when we bring the new one in it's going to be different than a live issue and it basically means that
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there will never be a ruling on what is really a core constitutional question did this violate your
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mobility rights as a canadian who was not able to travel yeah i was just trying to take some notes
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because of so many things always come up but uh a hundred percent um so one of the the government
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was definitely painting the picture that the suspension the word suspension doesn't really mean
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anything it was rescinded in the end because it expired so what many canadians actually don't know
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it was an interim order um that continuously expired every two weeks so if it didn't expire they would
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renew it um and so they're kind of like well it expired so it's gone and there's that's it whether
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it's suspended or rescinded would be a more appropriate word it's not effective in law anymore
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so that means it's not law but one of the points that was made yesterday which i also think is very
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important is because they were these were interim orders they weren't debated in the house of commons
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and in the open public forum so a decision like that maybe that's where the court should say okay
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let's let's dissect this a little bit more because when there's like a year or two of public debate and
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everyone can have their say on it and that that seems more democratic a better use of everyone's time
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if that's the kind of law we were challenging then maybe i see the point but in this case it was like
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all these uh very reactionary um responses on a short-term basis maybe that doesn't make sense let's
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just talk about these let's debate this as adults and as people that have questions on this so for many
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reasons that didn't really make sense uh and so those were some of the points that were made yesterday
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and uh one thing that's very important to note is on the first instance the federal court judge said
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well you know it's not live it's not an active law now but if it is you're welcome to come back to court
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this is after all the parties have put in a lot of time and effort and canadians have either donated
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um through uh charitable organizations that were involved in this or directly so you're just asking
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citizens and canadians to continuously front a challenge to the government i like i don't think
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that's the appropriate use of anyone's time or funds or canadians should be asked of that anyway
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well and i would also jump on that point because i think that's an important one eva which is that
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one of the core arguments behind courts using mootness and finding mootness is that uh judicial
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resources are scarce there's a cost and an effort and a time that it takes to litigate a case
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i would argue that hearing the case once and for all actually takes fewer judicial resources than
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hearing it every year or every two years or every three years if something like this is reintroduced
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i mean we are a legal system that is based on precedent and you can't actually have uh common
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law unless you hear the cases that are going to form the precedent for how the law is in the future
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the mental gymnastics andrew have been interesting because what the courts uh at the first instance
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said and then the questions from the court judges yesterday were similar uh or at least one was is
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well the science at that time was what it was so how can we if even if we address it now if this
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comes back in a year or two the science is going to be different so this is going to be a waste of
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everybody's time and that goes against exactly what you were saying the rule of law precedence in
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canada it's always fact specific facts are going to always um massage a case a little bit one way
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or the other but the reasoning behind it that's the reason that everyone's in court was the reasoning
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behind the government's decisions and the mandates even whether the interim orders make sense or
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whatever none of that is being discussed or debated of course the science is going to be different
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probably will be all be more knowledgeable if this ever came forward again but it's not on the
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scientific points only that the court is being asked to hear this case so it was very concerning
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to hear that in the first instance and then again yesterday i i've told this story on the show many
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many times so bear with me if you're one of the members of the audience that have heard it but
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in 2019 when the leaders debates commission barred true north and rebel from covering the debate we
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went to federal court we secured an injunction and we were able to go and cover the debate and then
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after the debate we wanted to proceed with the case because we thought there was a big problem here
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of a government body arbitrarily deciding which journalists can and can't have access to
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government-run events and the court said as it did in the vaccine mandate case well the debate's over
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you got what you wanted there's really no point in hearing this because there's never going to be
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another debate yeah and then you fast forward to 2021 literally the identical thing happens in this
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case not with us we were accredited but rebel uh experienced the same thing and they went before the
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court and the same government said this is mood it's it's kind of an academic point it doesn't really
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matter did the same thing and they started from zero again so i i think that you know there is a very
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real uh debate to be had here again i mean if they have a trial on the facts and on the merits it may
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not go the way that mr peckford and mr bernier and all of them want it to but at the very least they
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should be heard and and the con the government should be forced to defend the constitutionality
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of this which right now it hasn't been forced to do has it yeah no and your example is a perfect
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highlight of judicial economy um how it doesn't make sense to bring this to court again and especially
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when so many resources were spent already um with all the parties um three months like at least it
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was months and months of already since the since the case was started but it was at least two months
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of daily cross-examinations which is a massive endeavor and so the actual court case was scheduled
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for three days that's not a huge amount of time considering the huge issues at stake and like i said
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um the public interest the polarity all of that stuff i think it was three maybe five days um but
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to ask all the parties to just start all over again and then maybe we'll listen to it but then why
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wouldn't we be in the same position again then why wouldn't the court make the same arguments again
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yeah very very well said your coverage of this on twitter has been quite good not just for people in
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who know the law but especially for people that aren't lawyers you've explained the issues very
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well eva chibiuk always a pleasure thanks for coming on today thanks for having me thanks for
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