The British Columbia Court of Appeal has agreed that a case examining the validity of the vaccine passport program should be heard again.
“There is something to be gained by having this court consider the issue and provide some guidance,” justices in the appeals hearing said on Oct. 6, 2023.
“The issue of whether the Section 7 right to liberty includes a right to roam as some of the parties have put it is an important one.”
The court had been asked to determine whether the case was moot, meaning the issue is no longer relevant and thus the case could be set aside.
The court’s decision came on day three of a hearing on whether the B.C. vaccine passport program violated the rights of two women and a teen girl who were not able to be vaccinated.
At the appeal hearing, the court was asked to consider whether the issue of harm caused by the vaccine passport was still relevant given the rules have been dropped for over a year.
“The orders expired over 17 months ago now and have not been replaced,” representatives for the Attorney General’s office told the court on Oct. 4. “There are not any current provincial health officer orders requiring proof of vaccination or exemption to attend gatherings and events where food and liquor serving premises in BC currently,”
However, the lawyer for the petitioners, Geoffrey Trotter, said the case was in the interest of the public who were divided over the passport vaccine requirements.
“It’s in the public interest to have an authoritative determination about whether they were legitimate or not,” he said during the court hearing.
The case was brought forward by the Canadian Constitution Federation (CCF) on behalf of the three individuals who say they suffered harm as a result of the vaccine passport program.
The CCF lost the case in September 2022 but has appealed the court decision.
In the written decision from 2022, Chief Justice Christopher Hinkson ruled against the CCF, saying 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.”
However, the CCF said they believed the court decision was incorrect.
“We believe that there were errors in the lower court decision,” CCF Litigation Director Christine Van Geyn said in a press 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.”
A spokesperson from the Ministry of the Attorney General told The Epoch Times they won’t be commenting on the hearing at this time.
“The hearing of the appeal is open to members of the public and to the media. We cannot comment as the matters are currently before the Court.”
Vaccine Passport Program Caused Harm: Petitioners
B.C.’s Public Health Office began a vaccine passport system on Aug. 23, 2021. As a part of the COVID-19 health measures, residents were required to provide proof of COVID-19 vaccination to attend public spaces such as recreation centres.The three petitioners say they were not able to be fully vaccinated for medical reasons but were not deemed eligible for the provincial exemption from the program.
Petitioner Sharon Kassian said she was diagnosed with a neurological condition causing extreme pain and partial paralysis of primarily her right, dominant arm following her first dose of the Pfizer COVID-19 vaccine, according to the court record.
“Ms. Kassian deposed that in May and early June of 2021, Dr. Fan and her neurologist, Dr. Stables, advised her against getting a second dose of COVID-19 vaccine because the risk of doing so would cause further nerve damage,” the written court decision said.
The court documents note that Ms. Kassian received a signed form from a doctor to support her application to the vaccine injury support program.
The second petitioner represented by CCF, Veronica Shier, said her chronic medical challenges prevented her from getting vaccinated.
Ms. Shier said she relies on swim therapy at public pools for some relief from her ongoing pain, but she was denied that opportunity after she decided not to get the COVID-19 vaccine
“Ms. Shier has also deposed that her inability to apply for a medical exemption from the vaccine passport orders has meant that she has been unable to attend social events and see family, exacerbating the social exclusion that she already experiences due to her medical challenges,” the court document said.
The third woman in the case, Erica Rooke, was diagnosed with pericarditis a few days after her first Pfizer COVID-19 vaccine.
While Ms. Rooke was able to get a doctor’s note for her condition to apply for an exemption to the vaccine passport program, “by the time she obtained it, the exemption regime was only available on an “activity-by-activity” basis, as blanket exemptions were precluded. Ms. Rooke deposed that she could no longer obtain a general exemption and instead had to submit a form to the PHO every time she wanted to do anything that requires a Vaccine Passport,” the court record said.
Mr. Trotter asked the appeals court to consider how difficult that situation was for Ms. Rooke.
“How many times do I, do you, have many things that come up on short notice? How realistic would it be for us to apply to the PHO with everything that the PHO was dealing with permission to do a new class of thing? How many things have you done in the last 10 days that you didn’t know about the week before they happen? That’s not trivial,” he said.
However, Justice Hinkson said in his 2022 decision that he did not believe the vaccine passport program violated the individual rights of the petitioners.
“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.”
Justice Hinkson noted in his decision that none of the petitions applied for an exemption.
The CCF said the three petitioners were not eligible for a medical exemption because their conditions were not on the government list.
