BC vaccine challenge case will go ahead

Government claimed case was “moot” – court disagrees, CCF case will be heard

A British Columbia has court rejected the government’s claim that the case against its COVID vaccine passport regime is “moot” and should not be heard. The case, brought by the Canadian Constitution Foundation on behalf of three litigants whose life and/or health was damaged by BC’s COVID passport system, will now be heard.

The BC vaccine passport policy restricted entry to certain public spaces to only those people who could prove they have received two doses of a COVID vaccine. While the vaccine passport policy is not currently in force, BC’s Public Health Officer has announced that it may return during the fall and winter respiratory virus season.

“This is huge!” said CCF Litigation Director Christine Van Geyn in a livestream October 4th. “So many of these government measures related to COVID have evaded constitutional scrutiny and Charter scrutiny from the court, because the government has relied on these arguments that ‘it’s all over it’s all done’ or they’ve they’ve relied on procedural arguments with the lower court. The the lower court said that they didn’t need to hear this case. I can’t express how excited I am that we have proceeded to the merits of this case.

“It’s an important case; the government need some type of guidance in the event that there is another crisis and if there is another Health Care crisis or any type of emergency. There’s a high likelihood that if a policy were brought back, it would have some of the same aspects; even if it’s not identical to the vaccine passports we saw before, it will have still have some similarities. It will still probably restrict people from public spaces it still will engage Section 7 rights to life liberty and security of the person.”

The CCF brought the legal challenge along with three individuals who could not be vaccinated because of medical conditions, including adverse reactions to the first dose of a COVID-19 vaccine.

“We believe that there were errors in the lower court decision. 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. On the face of the Provincial Health Officer’s (PHO’s) orders and their mandatory forms, these women were ineligible to apply,” Van Geyn explains.

“The government cannot save a bad and unconstitutional law or 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.”

The three individual petitioners in this case continue to be part of the appeal along side the CCF. They include:

• A teenage girl who developed heart inflammation after her first dose of a COVID vaccine. She is ineligible for a second dose. Her ineligibility for an exemption excluded her from craft fairs, taking a first aid class, and at the peak of Omicron restrictions prevented her from seeing friends either in restaurants, or even in private homes.
• A woman who developed nerve damage following her first dose of a COVID vaccine, leaving her arm partially paralyzed. She became pregnant, and her neurologist advised her not to get a second dose, due to the risk of further nerve damage, including damage that could impact her unborn baby. Her ineligibility for an exemption excluded her from work socials and weddings, forced her to spend Christmas home alone, and excluded her from Mom and baby swim classes with her newborn.
• A woman who has complex and overlapping disabilities, has undergone approximately 15 surgeries, and who is contraindicated for numerous medications. Due to her complex medical situation and the lack of information about how the COVID vaccine may interact in the body of a person with her unique set of disabilities, and her past drug reactions, she is at heightened risk of a serious reaction to the vaccine. Her ineligibility for an exemption caused her to lose access not only to all manner of social contact, but also to essential physical therapy at her local public pool.

The CCF is represented in this case by BC lawyer Geoffrey Trotter. Members of the public interested in supporting the legal fees in this appeal can make a tax deductible charitable donation on the CCF’s website here: theccf.ca/donate/