Canadian Society for the Advancement of Science in Public Policy V. British Columbia, 2022 BCSC 160
The Canadian Society for the Advancement of Science in Public Policy, “ CSASPP” and its executive director, Kipling Warner, a software engineer, filed a constitutional challenge to BC COVID-19 Orders issued by Dr. Bonnie Henry, the Food and Liquor Serving Premises Order, and the Gathering and Events Order which imposed maximum capacity, seating requirements, availability of sanitation stations, at various public gathering venues, and required proof of double vaccination via a vaccine passport or exemption from vaccination in order to access indoor and outdoor food and liquor establishments and other public gathering venues. The petitioners alleged that Dr. Henry’s Orders violated their rights under the Charter to freedom of religion (s. 2(a)), freedom of expression (s. 2(b)), freedom of assembly (2(c)), freedom of association (2(d)), life, liberty, and security of the person (s. 7), and equality (s. 15).
The petition alleged a failure to provide reasonable exemption and accommodation for persons with religious objections to vaccinations. However, the pleading and the evidence failed to show which practice or belief any petitioner or other affiant held, the nexus of that belief with any specific religion, or that the Orders interfered with the practice of belief in a in a substantial manner. In addition, the petitioners provided no evidence that the Orders violated the right to “manifest religious belief by worship and practice or by teaching and dissemination’ of persons whose religious beliefs prohibited them from receiving vaccines, including for COVID-19. Similarly, while the petitioners alleged that the effect of the Orders was to limit attempts to convey meaning through expressive conduct to comply with religious beliefs by choosing not to be vaccinated, there was no evidence in support of a breach of section 2(b) of the Charter.
The Court applied a two-stage analysis. In the first stage the petitioners had to establish that the Orders imposed limits on a life, liberty or security of the person interest such as to engage section 7 of the Charter. In the second stage the applicant had to establish that the deprivation is contrary to the principles of fundamental justice, meaning that the law limiting the life, liberty, or security of the person must not be arbitrary, overbroad, or result in consequences that are grossly disproportionate to their object. The Court stated, “Section 7 of the Charter does not promise that the state cannot interfere with a person’s life, liberty, and security of the person, but rather, that the state will not do so in a way that violates the principles of fundamental justice”.
The petitioners alleged that the Orders mandated vaccination in a way that engaged the liberty and security of the person interests and asserted the Orders and Variance Order limited their freedom of movement by preventing them from having the same access to property as others members of the public. They argued that section 7 of the Charter protected personal autonomy over bodily integrity from state interference with an individual’s physical or psychological integrity, which included the right to fundamentally important and personal medical decision-making. With respect to the violation of a liberty interest, Mr. Warner provided evidence that he could not enjoy Vivaldi’s Four Seasons candlelight performance, nor go to restaurants, movie theatres, yoga classes or cultural events for a period of time.
The Court noted that vaccination was not mandated. Vaccination applied during a period when participation in discretionary activities were limited to those who had been vaccinated against COVID-19. Furthermore, the petitioners provided no evidence of serious state-imposed psychological stress such that there would be an interference with the right to security of the person. The Court held that the jurisprudence did not support a section 7 right to publicly-assessible private establishments. The Orders only limited access to private establishments, to which there is no right to unfettered access.
The Court held that to establish a prima facie violation of s. 15(1) of the Charter, the petitioners must demonstrate that the Orders and the Variance Order, on their face or in their impact, created a distinction based on enumerated or analogous grounds, and imposed burdens or denied a benefit in a manner that had the effect of reinforcing, perpetuating, or exacerbating disadvantage: Fraser v. Canada (Attorney General), 2020 SCC 28, at para. 27. The petitioners argued that the Orders and the Variance Order discriminated on the basis of religion for the same reason they violated freedom of religion. Their impact created a distinction on the basis of religion between persons whose religious beliefs require them to not take vaccines, including the COVID-19 vaccine, and those persons whose religious beliefs or absence of any religious beliefs did not include such an objection. The petitioners asserted that the iOrders and the Variance Order reinforced, exacerbated, or perpetuated an existing disadvantage as religious minorities and those with medical conditions adverse to vaccination. They argued that it is possible to safely exempt persons from the Orders because some exemptions had been granted on specific medical grounds. The Public Health Officer had not explained why similar exemptions are not granted to a minority of British Columbians on religious grounds. The Court dismissed the section 15 breach because there was no evidence of the impact of the Orders on persons with religious beliefs.
The parties agreed that the standard of review for the administrative decision to issue the Orders and the Variance Order is reasonableness. The Court held that in order to find that the administrative decision was unreasonable, the party requesting a judicial review must prove that the decision was internally inconsistent, or was untenable in view of the relevant facts and legal constraints.
The Court found that the Orders required individuals be vaccinated for attendance at non- essential settings or events, where there is a high risk of transmission of SARS-CoV- 2, or where there is potential for contact with, and transmission to, vulnerable populations. Such a determination was carefully made in consideration of the difficulties and risks in accommodating unvaccinated persons, and the associated threat to the health of the broader public.
The preambles to the Orders stated they were issued with the objectives of protecting public health and preventing the spread of COVID-19. The peril that the Orders were trying to address was the risk of accelerated transmission of SARS-CoV-2, protecting the vulnerable, and maintaining the integrity of the health care system. The decision to make theimpugned Orders, and subsequently the Variance Order, was made in circumstances of significant uncertainty and required highly specialized medical and scientific expertise. The Orders provided the PHO’s reasoning and specific justification for the vaccine mandate in the settings covered by those Orders based on the epidemiological data and generally accepted scientific knowledge regarding SARS-CoV-2 and COVID-19.
The Court found that the PHO assessed the available scientific evidence to determine COVID-19 risk for gatherings in British Columbia, including epidemiological data regarding transmission of SARS-CoV-2 globally, nationally, and in British Columbia, factors leading to elevated transmission risk in religious settings, and COVID-19 epidemiology in British Columbia. The PHO’s orders were limited in duration and constantly revised and reassessed to respond to current scientific evidence and epidemiological conditions in British Columbia. The PHO was guided by principles applicable to public health decision making. In particular, the principle that public health interventions be proportionate to the threat faced and should not exceed those necessary to address the actual risk. The Court concluded that the PHO’s decision to issue the Orders and the Variance Order was internally consistent and was based on her expert evaluation of the facts available at the time. The PHO’s decision was not unreasonable and fell within a range of reasonable options.