It’s a bit surreal to think back to the not so distant past and recall that we were once forced to show government-issued QR codes to de facto bouncers at restaurants, libraries and movie theatres, disclosing whether or not we’d received a particular medication.
During the pandemic era, Covid-19 vaccine passports, required by governments, changed how society functioned. These vaccine passports were constitutionally suspect.
In particular, the policy in British Columbia was troubling for its failure to provide open categories for medical exemptions. It’s almost more comfortable to forget this period of our lives. But for the sake of those who had their rights violated, we cannot.
Citizens who could not obtain good faith medical exemptions in B.C. will now have their day in court. The Court of Appeal of British Columbia will be hearing the Canadian Constitution Foundation’s appeal of a decision dismissing a challenge to the B.C. vaccine passports that the charity brought along with three directly impacted women.
The three women were ineligible for a medical exemption on the face of the law. The B.C. government used a “closed list” system for exemptions. Only people with specific medical conditions were permitted to even apply for an exemption. These conditions included individuals who developed heart inflammation following a first dose, those undergoing certain cancer treatments, and people with anaphylactic allergies to components of the vaccine.
But two of the patients working with the CCF had rare medical conditions and complex medical histories not listed on the mandatory exemption form. They were ineligible to even apply. And even if a patient had one of those conditions, like the third petitioner in the CCF’s case, those patients would only be potentially eligible for an “activity by activity” exemption. This meant the patient in this case needed to apply to the government every single time he she wanted to do some basic socializing in a public place.
However, at the lower court level, the cases of these women were dismissed as premature. Apparently, the court agreed that these patients should have known that the government was secretly issuing medical exemptions for conditions beyond that closed list and should have known that the government was not enforcing the “activity by activity” requirement.
Essentially, the government successfully defended unconstitutional orders by saying it secretly didn’t actually follow them, and then faulted the petitioners for not having known this.
That decision is now being appealed. But the government has thrown up yet another procedural roadblock: its lawyers are claiming that the case is moot. The government had already unsuccessfully argued that the case was moot at the lower level, and it is now attempting to relitigate that position. If the government now succeeds in claiming mootness, it will once again evade scrutiny for its illegal law and deny justice for victims of government overreach.
But beyond this, the simple fact is the case is not moot.
The B.C. government has refused to commit to not bringing back some form of vaccine passport, and as we enter the season for fall respiratory viruses, this is a very real prospect. The B.C. government has also maintained vaccine mandates in certain contexts, namely for healthcare workers. This is a government mandate, as opposed to an employer mandate, which has a longer and different history.
There is no reason for the Court of Appeal to reach a different conclusion on mootness than the lower court did.
The case also has broader ramifications in addition to the Charter impacts on the three individual women. The government claims to have used a secret and unknowable process to remedy a constitutionally deficient law. This cannot be permitted to stand.
Just imagine how this solution may be used to evade constitutional review in other cases. The case has precedential weight from an administrative law perspective in addition to its weight addressing the discrimination and security of person arguments of the directly impacted three women.
The hearing will take place over three days in downtown Vancouver, and the outcome will be watched closely by civil libertarians. The COVID-19 pandemic was a novel and unprecedented crisis. We cannot avoid learning crucial lessons from that crisis by closing our eyes to rights violations on procedural grounds.
Christine Van Geyn is the litigation director for the Canadian Constitution Foundation and host of “Canadian Justice” on the News Forum.
