The mandatory document that came into force last September has not been in use since March.
This poster, which had been installed in the food court of a shopping center, explains that proof of vaccination is required to enter.
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The Legal Center for Constitutional Liberties, which challenged the constitutionality of Ontario's vaccine passport, was unable to present its case. The judge agreed with the government, which claimed that the cause had become obsolete since the abolition of this mandatory measure.
The Legal Center for Constitutional Liberties, which is based in Alberta, was set to represent 8 Ontarians in court on Tuesday who claim their Canadian Charter rights were violated when the vaccine passport came into effect in Ontario in September 2021.
The Crown had presented in extremis before the hearing a motion on the pointlessness of holding a session on this subject, since the vaccine passport is no longer valid in Ontario. The hearings were held by videoconference.
The plaintiffs alleged that they were prevented from entering certain public spaces and that they were deprived of their daily activities. However, the passport they are still contesting was canceled in March 2022 by the Ford government.
An example of the Ontario vaccine passport
At the time, the Ontario passport was the key to anyone who wanted to enter gyms, restaurants or amphitheaters, because this document proved to the owners of these places that they had been vaccinated twice against the virus.
Those who did not have a passport in hand were therefore either resistant to compulsory vaccination or worried about the future of their rights, even if they were vaccinated.
At the time, violators faced fines of up to $10 million and business owners, to penalties of up to prison.
An Ontarian checks the validity of his vaccination passport.
Even though the passport was revoked, the Legal Center wanted to demonstrate, with supporting testimony, that it was arbitrary, illegal and unconstitutional.
If the case lapses, I warn you that there will be no point in hearing your arguments for two days, said Justice Benjamin Glustein, of the Superior Court of Ontario, adding that the courts do not have to interfere with the political world.
The parties therefore debated the Crown's request for three hours before eventually hearing the arguments of the plaintiff on the merits.
Prosecutor Sean Hanley explains at the outset that the case became obsolete when the government in March no longer required proof of vaccination before entering a public place in Ontario.
The restrictive sanitary measures that were in the law are no longer applicable, because they have been abandoned and the law has been amended, he says.
Ontarians no longer need proof of full vaccination to enter certain establishments, such as this restaurant, for more than four months.
There is no longer any controversy in the subject of the health passport in Ontario, he assures us, pointing out that pleadings would be a hypothetical exercise, if they were to take place.
The prosecutor also cites a judgment of the Divisional Court on obsolete cases in the province, which is favorable to his request.
When a legal case lapses, it is generally understood that it must be abandoned in court, he concludes.
Finally asserts that it is in any event up to the plaintiff to prove that the litigation has not become obsolete.
In her rebuttal, Legal Center for Constitutional Liberties lawyer Henna Parmar says the case is not moot even though the passport is effectively no longer used in Ontario.
We are still in a pandemic period and COVID-19 is still circulating in society, she says.
Me Parmar adds that the government could at any time require the passport in certain public places to curb any contagion in the community.
The lawyer stresses that this issue is also of great public interest and that it is important to hear her arguments on the constitutionality of the vaccine passport.
People protest in downtown Toronto on September 2, 2021 overnight the announcement of the implementation of a vaccine passport in Ontario.
This court has a duty to hear the case on its merits because of the damage the passport has done to the Canadian Charter of Rights and Freedoms, she continues.
Me Parmar finally appeals to the discretion of the judge to hear the dispute if he were to rule that the case is indeed obsolete.
His colleague, Sayeh Hassan, adds that his organization could not obtain a court date until Tuesday despite filing its legal documents in court last October.
Mr. Hassan points out that the public will lose confidence in the administration of justice in Ontario if the appeal is not heard.
At this account, any litigation will systematically lapse by the time it ends up in court because of the time lapse between the filing of the documents and the day of the hearing, she concludes.
In his oral decision, Judge Glustein explains that it is useless to hear the case, although it is interesting, since it became obsolete when the province discontinued its use.
He says his hands are tied by the case law of the Divisional Court of the United States. ;Ontario and that the controversial passport was revoked by law last March.
I cannot change the case law because I sympathize with your cause and I fully understand all the work you have put into this dispute, he concludes.
The Ontario court offered the plaintiffs a way to be heard despite the lapsing of their case.
The magistrate nevertheless offered an olive branch to the lawyers of the Center to circumvent this legal difficulty so that the case is heard on the merits.
The judge offers them to convert their constitutional complaint in a lawsuit for the damages their clients allegedly suffered from September 2021 to March 2022, so that the arguments on the constitutionality of the passport can be heard.
The case cannot however, be heard immediately, as the Center must first determine the amount of money it intends to claim from the province on behalf of its 8 clients for the wrongs they say they have suffered because of the vaccination passport.
The hearing has been adjourned until November 21.
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