Court of Appeal to hear Appeals on Constitutionality of Vaccine Passport

In Kassian v. British Columbia, 2023 BCCA 383, appellants brought appeals from three separate judicial review proceedings challenging the constitutionality of orders of the Provincial Health Officer (“PHO”) that restricted unvaccinated persons from attending at certain events, activities and places. The creation of a vaccine passport regime was implemented with the objective of reducing the transmission of the COVID-19 virus.

The orders in question were rescinded before the petitions were heard in Supreme Court, but the Chief Justice exercised his discretion to hear and decide them.

The petitioners’ primary arguments contended that these particular orders violated ss. 7 and/or 15 of the Canadian Charter of Rights and Freedoms. All three petitions were dismissed in Supreme Court.

Focusing solely on one individual in the first petition, Kassian actually involved three different petitioners. Ms. Kassian herself was a school secretary who was pregnant at the time she was scheduled to receive her first dose Pfizer’s COVID-19 vaccination. She supported vaccines generally and in the case of the COVID-19 virus. She received her first vaccine dose on April 19, 2021, and subsequently developed brachial neuritis, a neurological condition causing extreme pain and partial paralysis of her right arm. She contended that this condition was caused by the vaccination. She was advised by her physician against receiving a second dose of the Pfizer vaccine because of the risk of potentially worsening this neurological issue.

Ms. Kassian alleges she was not provided an exemption to the vaccine passport requirement because the condition was not on the PHO’s list of conditions approved for medical exemption. When the vaccine passport orders went into effect, she alleged she was unable to engage in social activities that she otherwise would have.

At the Court of Appeal, the PHO and Attorney General argued that the court should not hear the appeals, as the issues were moot, with the vaccine passport program having been rescinded in 2022. The court, citing Borowski v. Canada (Attorney General), [1989] 1 SCR 342, considered whether to exercise the discretion to hear moot cases. The three considerations include whether:

1. Despite the disappearance of the concrete dispute, an adversarial context continues to exist, such that there remains an assurance that the case will be fully argued before the court;

2. Judicial economy would be advanced, in some way, by hearing a case notwithstanding that the concrete dispute has been resolved;

3. In hearing a moot case, the court would be straying into the legislative sphere rather than acting as an adjudicative body.

The Court of Appeal found that the parties remained adversarial. The court held the issue of whether s. 7 right to liberty includes a “right to roam”, is an important one. The Chief Justice of the British Columbia Supreme Court rejected this idea. The Court of Appeal stated that there was something to be gained by considering this issue and providing some guidance for the future. For this reason, the Court of Appeal decided to exercise its discretion to hear the Kassian appeal, to be held at a later date.