Vaccine passports may be gone for now, but the legal battle over the constitutionality of these exceptional measures continues, with the hearing in a group of appeals in British Columbia now set for October 2023..One of those appeals is in a constitutional challenge brought by the national civil liberties organization, the Canadian Constitution Foundation.. Christine Van GeynChristine Van Geyn .The appeal has broader implications than just the validity of BC’s vaccine passport regime, which failed to provide a workable system for medical exemptions and resulted in the social isolation of medically complex and disabled people in that province. The case also has implications for broader concepts of administrative law and government action..The claim was brought by the CCF and by three individuals who were unable to get vaccinated for good faith medical reasons. One of the applicants is a teenage girl who developed heart inflammation (pericarditis) as an adverse reaction following her first dose of a COVID-19 vaccine..The second was a woman who developed a rare neurological disorder following her first dose of a COVID-19 vaccine, and subsequently got pregnant..The third is a medically complex woman with multiple overlapping disabilities, who's undergone more than a dozen surgeries and had many unexpected adverse drug reactions. She was unwilling to get vaccinated because of her complex medical history, but as a result of her status as an unvaccinated person was no longer able to use her community swimming pool. As a mobility impaired person, she relied on the pool daily for swim therapy. Without access to the pool, she lost mobility and needed to increase her nerve blocking medication. The government’s vaccine passport regime and failure to exempt her had real negative consequences for her health..The three individuals were unable to obtain medical exemptions from the BC system. The teenage girl could have applied for an exemption on an activity-by-activity basis by, for example, applying to the government each time she wanted to go to dinner or go to the movies..But the other two women had rare conditions unlisted on the government medical forms and were precluded from even applying for medical exemptions. In any event, the CCF position is requiring individuals to seek permission from the government each time they want to go about their daily lives is paternalistic and unreasonable. Indeed, the CCF’s position is the entire vaccine passport regime presents a constitutional problem, but the cases of individuals for whom vaccination is not safe medically was an urgent concern..However, the lower court dismissed the challenge, saying the claim was premature. The court essentially accepted the government's argument the three individuals could have applied for medical exemptions through the government system, even though on the face of the regulations those individuals were ineligible..The government argued the public health office was in fact granting blanket exemptions for unlisted medical conditions. Even though the government forms were a closed list of eligible medical conditions and required activity by activity applications, the court found the government was essentially ignoring its own rules..Accordingly, the court found that the CCF’s judicial review was premature because the individuals had an alternative remedy available to them..A judicial review cannot be premature when the “alternative remedy” is a secret one, never communicated to the public and unknown and unknowable by the individuals at the time they filed for judicial review..The government cannot fix a constitutionally flawed regulation by secret administrative action. If this were the case, it would have ramifications for many other types of government acts and would grant far too much secretive discretion to the administrative state. It's important to set limits on this authority and on these principles..That's because while vaccine passports are gone for now, civil libertarians need to resist their return in some form in the future..Christine Van Geyn is the litigation director with the Canadian Constitution Foundation
