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B.C. judge sides with Dr. Bonnie Henry in 4 health order challenges

The challenges came from both vaccinated and unvaccinated individuals and largely deal with public gathering restrictions.
Bonnie Henry 2 (Glacier Media, Adrian Lam)
Provincial Health Officer Dr. Bonnie Henry speaks to reporters at one of her media availabilities.

B.C.'s top doctor and the provincial government have fended off four court challenges to public health orders this week.

Honourable Chief Justice Christopher E. Hinkson delivered the rulings Sept. 12 in B.C. Supreme Court.

The challenges came from both vaccinated and unvaccinated individuals and largely deal with public gathering restrictions, including the BC Vaccine Card.

Henry inundated with passport ‘reconsideration’ applications

Victoria resident Jeremy Maddock challenged two public orders: first, the variance order made Nov. 12, 2021 that allowed provincial health officer (PHO) Dr. Bonnie Henry to dismiss certain “reconsideration” applications so as to not require proof of vaccination at gatherings, events and restaurants; and second, the order made Dec. 21, 2021 to shut down pubs and clubs and limited patrons at restaurants. Maddock argued the former was unreasonable and the latter was unconstitutional.

Maddock is a law school graduate who never articled for the bar but nevertheless works as a legal consultant. He never got vaccinated, according to court documents. He claimed public health restrictions infringed on his liberties and ability to work (meet clients) in public spaces.

Since he was, in fact, prevented from accessing some public spaces, Hinkson granted Maddock standing. Henry submitted to have the case tossed out because the orders have since been extinguished; however, the spectre of renewed public health orders this fall led Hinkson to make a ruling.

Henry’s orders were made under the Public Health Act to address “health hazards,” noted Hinkson, and Henry has suggested COVID-19 outbreaks could occur and impact the health-care system.

Henry introduced the BC Vaccine Card Sept. 10, 2021 and subsequently got 800 reconsideration requests, largely based on mere opposition to the card. Those requests “occupied significant time and effort” for Henry, leading her to dismiss them all, save for medical exemptions, in the variance order.

“In my view, the reasoning is clear; the decision bears the hallmarks of rationality in that it is justified, transparent and intelligible,” ruled Hinkson against Maddock’s claim.

As for the constitutional claim against shutting down pubs and limiting patrons, deputy PHO Dr. Brian Emerson testified, as summarized by Hinkson, that “preventing and controlling transmission of communicable diseases is essential to maintaining the provincial health system’s ability to deliver quality care and continue the safe delivery of essential health services, and that when the incidence of infection in a community rises at exponential rates, this can quickly overwhelm the health-care system’s ability to diagnose and treat patients for SARS-CoV-2 infection and the myriad of other health conditions experienced by the population.”

Hinkson ruled: “The jurisprudence does not support a conclusion that the restrictions on the petitioner’s access to these establishments, that are open to the public but privately owned and run, amount to an infringement of his [charter] rights.”

“The suspension order does not compel or prohibit subjection to any form of medical treatment,” noted Hinkson.

Vaccine injuries alone not enough to overturn government orders

Meanwhile, those who sought medical exemptions also sued Henry and the B.C. government, claiming the exemption process failed “to provide an effective, comprehensive, and accessible regime for medical exemptions in the orders provisions.”

A trio of B.C. residents, all of whom were up to date on the Canadian Immunization Guide, made varying arguments.

Leigh Anne Eliason of Maple Ridge said she was advised by her long-time family doctor, Dr. Brian Sclater, not to get vaccinated due to a neuro-vestibular disorder.

Sclater told the court his patient’s risks to vaccine side effects were greater than risks of natural infection.

“Personally, I have had a fear of consequences from the College [of Physicians and Surgeons of British Columbia] for completing deferral forms,” noted Sclater.

Eliason was never approved for an exemption.

But co-respondent William Robertson Prendiville did get an exemption, after taking his first vaccine and experiencing serious cardiovascular side effects that hospitalized him.

A Royal Columbian Hospital cardiologist named Dr. Richard Vandegriend submitted a COVID-19 vaccine medical deferral form request on Prendiville’s behalf.

Prendiville claimed businesses either ignored his exemption, “repeatedly” accused him of forgery or granted him access inconsistently.

Dawn Slykhuis, a youth crisis clinician at Fraser Health in Port Moody, claimed her employment is now in jeopardy because of her unsuccessful attempt to get exemption from the proof of vaccination programs.

As like Prendiville, Slykhuis had a bad reaction to the first shot, including numbness, loss of control of hands and menstrual cycle disruptions.

“My GP has advised me that his reluctance to complete the B.C. deferral form is due to concern about the College of Physicians and Surgeons advising physicians not complete these exemptions,” said Slykhuis.

Eliason, Prendiville and Slykhuis argued they suffered an unconstitutional impact from the orders.

However, Hinkson found Eliason and Slykhuis did not exhaust all remedies available to them, despite complaining that doctors felt pressured not to provide exemptions.

And, “I find that Mr. Prendiville successfully pursued the statutory remedies available to him. While he has encountered less than full acceptance of his temporary deferral by businesses he has attempted to patronize, I am unable to find that this is the fault of the respondents,” ruled Hinkson, ultimately dismissing the claims.

Constitutional challenge falls by wayside

In yet another claim, Sharon Kassian, a school secretary, Veronica Shier, a certified life coach, and Erica Rooke, a swim coach, joined the Canadian Constitution Foundation to challenge the constitutionality of vaccine passports.

One argument put forth was that the order guidelines created a closed-list system where those with unlisted disabilities were not eligible to apply for an exemption. Hinkson disagreed, and noted the petitioners never applied for an exemption at any rate.

Hinkson also dismissed arguments that Henry mandated guidelines on the BC College of Physicians and Surgeons, which may have persuaded doctors to not issue exemptions.

Hinkson also found the petitioners didn’t exhaust all remedies to seek those exemptions. As such, the judge didn’t address the matter of rights

“Given my findings with respect to prematurity, it is unnecessary for me to resolve the petitioners’ other arguments with respect to alleged charter breaches or the potential justification of any breaches through the application of Section 1 of the charter.”

A fourth case, brought forward by the Canadian Society for the advancement of Science in Public Policy and Kipling Warner, challenged the food and liquor serving premises order and the gathering and events order, both issued Sept. 10, 2021.

The society employed a complaint from Stefan Curtis, who tested positive for COVID-19 in August 2021, while travelling in the European Union, which allowed him to access places vaccinated people could attend, by way of his natural immunity.

Curtis did not receive a response to his reconsideration request from Henry’s office, the claim shows.

“ Given the significant time and resources occupied by the reconsideration process, the PHO determined that, in the interests of public health, it was necessary for her to decline such requests, other than on a medical deferral basis, until transmission, serious disease, and strain on the system were significantly reduced,” noted Hinkson.

The society argued such a stance was an unjustifiable infringement on rights.

“The petitioners assert that the pandemic has led governments across Canada, and around the world, to assert wide-ranging powers under public health statutes to take measures that, in normal circumstances, would be achieved through legislation. Law-making occurs through the legislative process, which is transparent, public, and fosters democratic debate.

“The petitioners contrast the issuance of public health orders to this process, asserting that such orders are not subject to the same public process and scrutiny as legislation, thrusting the courts into the role of providing the sole check on executive overreach,” Hinkson sumamrized.

However, the society failed to prove unjustifiable infringement.

Hinkson noted: “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.

“To summarize, first I decline to hear arguments regarding the reconsideration of Mr. Curtis’s exemption application or the petitioners’ reconsideration request. Second, I find that the impugned Orders did not impinge on the petitioners’ Charter rights, hence it is unnecessary for me to consider the reasonableness of the balancing of the Charter rights. Third, I find that the PHO’s decision to issue the impugned Orders and the Variance Order was reasonable. Last, the impugned Orders and the Variance Order were not ultra vires the PHO’s authority,” the judge concluded.

gwood@glaciermedia.ca

This story updated the fourth case after initial publication

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