VANCOUVER: On September 12, Chief Justice Hinkson of the BC Supreme Court issued his decision in the Canadian Constitution Foundation’s legal challenge to the BC government’s vaccine passport regime. The court dismissed the case as premature, finding that the three individuals who brought the case around medical exemptions had not exhausted their opportunity to apply to the PHO for a medical exemption. As a result of that finding, Justice Hinkson did not resolve the three petitioners’ arguments regarding Charter breaches.
“This result is very frustrating for the Canadian Constitution Foundation and for the three individuals in this case,” said CCF Litigation Director Christine Van Geyn. “My heart goes out to these three women who suffered social isolation and high handed treatment by the BC government because of their disabilities. The government evaded constitutional review in this case by filing evidence that the government was accepting medical exemption applications for conditions beyond those in the limited list in its mandatory application forms, and granting general exemptions despite the PHO orders which stated that only activity-by-activity exemptions would be granted. But this only became known four months later, when CCF’s lawsuit forced the government to file evidence in the case. Essentially, the government defended unconstitutional orders by saying they secretly didn’t actually follow them, and then faulted the petitioners for not having known this.”
“The three women in our case were in an impossible situation. In our view, it is obvious that the BC vaccine passport regime as set out in the PHO orders and the mandatory forms did not have an open category for medical exemptions, and BC healthcare professionals were dissuaded by their regulator from writing letters in support of exemptions, on the basis of the PHO’s own statements that only listed conditions would qualify for an exemption. The result was that these patients could not find physicians who would support writing a letter for their medical exemptions, even when these same physicians would write supportive letters for other purposes. All of this is wrong, frustrating, and extremely disappointing,” concluded Van Geyn.
The CCF is considering an appeal, which would need to be filed within 30 days.
