A court challenge against the B.C. government over vaccine passports mandated during the COVID-19 pandemic is underway.
The challenge was brought forward by the Canadian Constitution Federation (CCF), focusing on two women and a teenage girl who say they were negatively impacted by the B.C. government’s passport protocol. The CCF lost the case in September 2022 but is appealing the court decision.
In a written decision handed down last fall, Chief Justice Christopher Hinkson said he found the petitioners “have not exhausted the remedies available to them under the legislative scheme.”
“Had they pursued those remedies, the alternative procedures would not have been duplicative or ineffective,” he said.
The CCF says they believe the decision was incorrect.
“We believe that there were errors in the lower court decision,” CCF Litigation Director Christine Van Geyn said in an Oct. 6 release.
“Most significantly, there was an error in the finding that the three women who brought this case could have applied for a reconsideration for an exemption from the vaccine passport system, making their court challenge premature.”
Ms. Van Geyn said the government cannot save a “bad and unconstitutional law order” by secretly not applying it in practice, as the government argued it had done.
“By accepting the government’s argument and declining to even consider the constitutional issues, the lower court decision sets a dangerous precedent which undermines the rule of law and the principle that the Charter is the supreme law of Canada,” she said in the release.
Justice Hinkson said in the ruling that he could not determine a breach of the Canadian Charter.
“Given my findings with respect to prematurity, it is unnecessary for me to resolve the petitioners’ other arguments with respect to alleged Charter breaches or the potential justification of any breaches through the application of s. 1 of the Charter.”
The case is expected to run from Oct. 3 to Oct. 5.
Impact of BC Vaccine Passport
B.C.’s Public Health Office began a vaccine passport system on Aug. 23, 2021. Residents were required to provide proof of COVID-19 vaccination to attend public spaces such as recreation centres.The CCF is arguing that the three individuals were denied access to public spaces because they were unable to get vaccinated against COVID-19.
It says the teenage girl developed heart inflammation after her first dose of a COVID-19 vaccine, which prevented her from getting a second dose and made her ineligible for the vaccine passport.
One of the adult women developed nerve damage after her first dose of the vaccine, and her arm was partially paralyzed as a result, CCF said. She was advised by her neurologist not to get a second dose as she was pregnant and it could have affected her baby.
The third plaintiff in the case is a woman with some disabilities who has undergone about 15 surgeries. Her complex medical situation made her feel unsafe in taking the COVID-19 vaccine, the CCF said.
“I reject the petitioners’ assertions that the impugned Orders affect their rights and those of disabled persons whose conditions are not specifically included in Deferral Form,” the court decision said.
“Those for whom it was dangerous to receive a vaccination had a remedy and were not prevented from obtaining and relying upon a doctor’s evidence of their medical contradiction before the PHO, including after the Variance Order was made,” Justice Hinkson said.
“I am not persuaded that the Guidelines created a closed-list system where those with unlisted disabilities were not eligible to apply for an exemption.”
The judge noted in his decision that none of the petitions applied for an exemption.
The CCF said the three individuals were ineligible for a medical exemption because their situations were not on the government list.
“We want to thank the three individuals who are participating in the case and the appeal, for their courage and commitment to the principles of freedom, equality, and the rule of law,” Ms. Van Geyn said.
“They are an integral part of this case, and they are doing a service for all Canadians who were negatively affected by vaccine passports.”
The court document notes that the petitioners were not against vaccinations.
“The personal petitioners are supporters of public vaccinations, both generally and with respect to the Virus,” the document said.
“They do not challenge the Vaccine Passport Regime in general; their challenge is only to the Vaccine Passport Regime’s alleged unconstitutional failure to provide an effective, comprehensive, and accessible regime for medical exemptions for persons such as themselves, whose medical issues do not fall within those set out in the Guidelines or on the Deferral Form.”
The CCF’s court case was asking for a declaration that the public health orders are of no force and effect with respect to the charter. It is also asking that B.C. medical professionals be provided a letter from the B.C. College of Physicians and Surgeons and the B. C. College of Nurses and Midwives saying they have the organizations’ support to write medical exemptions for their patients, setting aside the vaccine passport program.
