May 23, 2024

The constitutionality of COVID orders by the PHO – the latest case

In response to the pandemic, governments implemented COVID-related measures such as vaccine mandates. Some of these public health measures continue to this day. Vocal groups of individuals, including health professionals, have in response asserted freedom from such measures. As a result, courts across the country have had to provide guidance on the constitutionally of government public health measures. A recent BC decision looked at the constitutionality of COVID-related restrictions, imposed by the Provincial Health Officer under the Provincial Health Act, in Hoogerbrug v. British Columbia2024 BCSC 794 (CanLII)

What happened

This case concerned 15 petitioners who challenged two orders of the Provincial Health Officer (“PHO”) dated October 5, 2023 (the “Orders”), which continued the vaccination requirement for the healthcare workforce in BC in place since October 2021. The 15 petitioners were all healthcare workers who lost their jobs due to being unvaccinated against COVID-19.

The petitioners argued the continuation of the Orders was an unreasonable exercise of the PHO’s statutory powers under the Public Health Act(the “PHA”). The Orders caused ongoing hardship and harm to the unvaccinated healthcare workers who had lost their jobs, and to the healthcare system itself from the absence of these highly qualified personnel. The petitioners challenged the reasonableness of the Orders on four main grounds, with one of the grounds being a constitutional challenge under the Canadian Charter of Rights and Freedoms. Some of the petitioners alleged that, by forcing them to choose between adherence to their fundamental religious and personal beliefs about vaccinations, and keeping their jobs in their chosen professions, the Orders infringed their s. 2(a) Charter right to freedom of conscience and religion, and their s. 7 Charter right to liberty and security of the person.

Charter challenges in an administrative context

Given the Court of Appeal’s decision in Beaudoin v. British Columbia, 2021 BCSC 512, the parties agreed the framework applicable to reviewing these Charter challenges is that established in Dore (2012 SCC 12). This is because the Orders are administrative decisions made through a delegation of discretionary decision-making authority under the PHA. Were the petitioners to challenge the constitutionality of a law, for example a provision of the PHA, the multi-step Oakes test would have applied.

Infringement of freedom of religion 

In considering the first part of the Dore analysis, the Court found that the Orders infringed the s. 2(a) Charter rights of those petitioners who refused the vaccines on religious grounds.

No infringement of freedom of conscience

However, the court found that the Orders did not infringe the s. 2(a) Charter rights of those petitioners who refused vaccination based on their personal concerns and convictions. While accepting the uncontradicted evidence of their specific objections and concerns, the court found that their s. 2(a) freedom of conscience rights were not limited by the Orders given their objections and concerns did not reflect an overarching moral belief system, but rather personal convictions and assessments regarding the vaccine and vaccination mandates. 

No infringement of the right to liberty and security of the person

Regarding the petitioners’ s. 7 Charter rights, the Court found that the Orders did not engage their rights to liberty or security of the person. The Orders did not compel them to accept unwanted medical treatment, and therefore, did not interfere with their bodily integrity or medical self-determination. Further, the court noted that under the case law, s. 7 protects neither the right to work in any specific employment or particular profession, nor the right to avoid the stress and hardship of being denied employment in a profession due to non-compliance with its governing rules and regulations. 

Mostly reasonable

On whether the infringements were reasonable, the court noted that it “is difficult to imagine more important and pressing public health concerns and objectives than reducing serious illness and loss of life, and safeguarding the functioning of the healthcare system” (para. 307). In response to some of the petitioners’ arguments that the Orders were disproportionate, the court held that it must defer to the PHO’s medical conclusions that alternatives to vaccination such as masking or rapid testing are not as effective against transmission as vaccination (para. 312), and second, in the context of other unvaccinated persons now being permitted in these healthcare settings, the court noted that healthcare workers are in a special situation given the crucial role they play in the system and their near-constant close contact with the most vulnerable patients, who generally have no choice but to be treated by them (para. 313).

With respect to the other grounds on which the petitioners’ challenged the reasonableness of the Orders, the court found there was ample evidence in the record to support as reasonable the PHO’s conclusions that

(a) transmission of the virus continued to pose an immediate and significant risk to public health justifying the ongoing use of emergency powers under the PHA,

(b) an unvaccinated healthcare workforce continued to pose a risk to the healthcare system,

and (c) it was essential to maintain the high level of workforce vaccination already in place.

In reaching this conclusion, the court noted the Court of Appeal’s advice in Beaudoin at para. 150, that in the public health context, courts have consistently acknowledged the specialized expertise of public health officials and the need to judicially review decisions made by them in emergency circumstances with a degree of judicial humility.

This is not to say that the reviewing court is simply to “rubber-stamp” the administrative decision.

One unreasonable aspect of the Orders relating to roles without contact

While the court found that the Orders were reasonable in light of the information available to the PHO at the time, it found one limited exception; there was a lack of justification in the record or Orders to support as reasonable the decision not to consider requests, under s. 43 of the PHA, for reconsideration of the vaccination requirement for healthcare workers able to perform their roles remotely, or in-person but without contact with patients, residents, clients, or the frontline healthcare workers who care for them. On this issue, the court remitted the matter to the PHO for reconsideration.

Hoogerbrug v. British Columbia2024 BCSC 794 (CanLII).

Rachel Noble