Air Canada
© Graham Hughes/The Canadian Press
An Air Canada jet takes off from Trudeau Airport in Montreal on June 30, 2022.
The issue of whether it is ethical to impose a vaccine requirement to travel is not something that was given consideration by the Canadian official who wrote the policy, court documents show.

Jennifer Little, director general of the COVID Recovery Team at Transport Canada, was responsible for drafting the vaccine mandate policy that precluded millions of Canadians from taking a plane, train, and some marine vessels.

Little testified as a witness for the government in its defence of the travel mandate that is currently being challenged in federal court.

During her June 9 cross-examination, Little was asked if she had a conversation with anyone in government that would have considered whether a mandate is ethical.

"I'm not aware of any particular study or specific conversation to that effect," Little said, noting that the Public Health Agency of Canada (PHAC) "may have literature on the ethics of vaccination mandates."

Little was pointed to a PHAC policy called "Public health ethics framework: A guide for use in response to the COVID-19 pandemic in Canada."

When questioned if she had consulted it, Little said she had not.

The PHAC policy makes no mention of vaccine mandates but states that "trust and justice" are its guiding values and principles. It adds other principles such as respect for human rights and minimizing harm.

While she did not give ethical considerations to the mandate, Little said she had sought legal advice as to whether the policy would impact charter rights.

Little was cross-examined along with over a dozen other witnesses and experts presented by the attorney general to defend the federal policy of mandatory vaccination in transportation.

Four lawsuits are challenging the mandate the federal government suspended on June 20. Despite only suspending and not abolishing the mandate, the government is trying to have the legal actions declared moot.

The Liberal government imposed mandates in transportation and the public service and federally regulated sectors in October last year.

WHO on Vaccine Mandates

In her affidavit submitted for the case, Little said Transport Canada has "duly considered and, as necessary, acted" on the guidance of different organizations to implement measures to protect the transportation sector and the Canadian public.

The domestic organizations listed include the Public Health Agency of Canada (PHAC) and Health Canada (HC), and the international organizations listed are the World Health Organization (WHO) and the International Civil Aviation Organization (ICAO).

Little testified on June 9 that she had not seen a recommendation from PHAC or HC for a vaccine mandate in travel.

During her cross-examination on June 10, lawyer and applicant Nabil Belkacem also remarked that the vaccine mandate in travel is neither supported by the WHO nor the ICAO.

"Do we agree that at the current time your position is in direct opposition with the WHO?" asked Belkacem.

Little acknowledged that excerpts from a WHO brief presented by Belkacem "certainly indicates that [WHO is] not supportive of vaccination mandates."

"But to my knowledge, we are not under a legal obligation to follow guidelines of the World Health Organization," she said.

The WHO policy brief "COVID-19 and mandatory vaccination: Ethical considerations" published on May 30 says the "WHO has issued a position statement that national authorities and conveyance operators should not require COVID-19 vaccination as a condition of international travel."

The ICAO also does not support mandatory vaccination in travel.

"In view of the global unequal access to vaccines and the unsuitability or intolerance of use of vaccines by some individuals, vaccination should not be a prerequisite for international travel," says the organization in a list of recommendations.

No Ethicist

Another government witness was also cross-examined on the issue of ethical considerations for the vaccine mandate.

Dr. Eleni Galanis, director general of the Centre for Integrated Risk Assessment (CIRA) within PHAC, is part of an advisory group that meets weekly with Chief Public Health Officer Dr. Theresa Tam.

Galanis said on June 23 that the ethics of proposed public health measures are discussed within the group but there is no particular individual with a special background such as a lawyer or medical ethicist.

"The balance between individual rights and the need to protect the health of the population, the greater good, is regularly touched on in the discussions around ... the implementation of public health measures," she said.

Galanis said the issue of mandatory vaccination in travel was "mentioned but not really discussed" during meetings with Dr. Tam.

"Has she ever directed you or anyone else on the group to find supportive evidence to justify the ... vaccination mandate?" asked lawyer Sam Presvelos, who represents applicants Karl Harrison and Shaun Rickard.

"No, not since I've been there," said Galanis. "And I don't attend every week, but since December when I attend ... I don't recall this being discussed."