Charter challenge of B.C.'s vaccine card argues lack of medical exemptions violates rights

Two B.C. women with health issues have filed a constitutional challenge of the province's new COVID-19 vaccine cards.

The Supreme Court petition filed Sept. 23 seeks a number of court orders, including an injunction to stay — or suspend — the legal effect of vaccine card orders.

But legal experts say the government of B.C. could argue that preventing the spread of a virus during a pandemic may trump Charter Rights in this case — especially after tens of thousands of COVID-19-related deaths nationwide.

The two women are both exempted by their doctors from taking the vaccine.

Sarah Webb, 39, had a painful adverse reaction — fatigue, cramping and heart arrhythmia — when she got her first shot on May 2.

Webb, who splits time working between Victoria and Calgary, was prescribed antibiotics after going to the emergency department in Calgary. She was released but had further complications and was advised by an emergency doctor not to have a second vaccination. Later her own doctor confirmed that she had a severe reaction to her first COVID-19 shot, and again advised her to avoid further doses.

Leigh Anne Eliason, 41, of Maple Ridge was also advised by her doctor to avoid the vaccine due to her "complicated and difficult" medical history.

Both women are medically exempt from receiving further vaccinations. But B.C. residents are required to have a vaccine card to participate in many non-essential activities such as dining out at a restaurant or working out in a gym.

The government requires proof of two vaccinations to turn their digital vaccination card green — or have a physical card mailed to them. That proof is needed to do many things in the province after Oct. 24.

There are limited exceptions for people who are medically exempt. The Public Health Order of Sept. 10, 2021 includes the option to request "reconsideration about proof of vaccine" on the basis of "a medical contraindication." A medical deferral form is available. 

But the Webb-Eliason petition argues the lack of exemptions for those with medical issues deprives them of their right to gather and engage in public life, under the Canadian Charter of Rights and Freedoms. Both petitioners are COVID-19-free and follow safety protocols — they distance and mask.

They argue that the vaccine card strips them of their freedoms and requires them to navigate a "vague, ambiguous, arbitrary, onerous and indeterminate process" to try to get them back.

'Real hardship'

Provincial health officer Dr. Bonnie Henry has said anyone who chooses not to be vaccinated has options including ordering takeout from restaurants and watching movies and sports at home because her order is aimed at reducing transmission of the virus from anyone who may be infected.

Robert Hawkes, a lawyer who represents both women, said Friday that his clients don't know each other, neither is an "anti-vaxxer'' and at least in Eliason's case, her husband and two children have been vaccinated.

"It creates a real hardship,'' Hawkes said of cases when one person in a family can't get vaccinated and is cut off from accessing services, travelling or faces the prospect of losing their job because of vaccine mandates in the workplace.

"My frustration is that you do have pretty-far-out-there anti-vaxxers and pretty-far-out-there anti-maskers. And whenever you have someone who isn't in that group and raises any kind of an issue at all, they get lumped into that group,'' he said from Calgary.

Hawkes said his office was in the process of serving the two B.C. ministries with court documents.

The Canadian Constitution Foundation, which previously supported a failed legal challenge of the province's public health-care system, planned to legally challenge the vaccine card system. But its director said they had to take an administrative route first to be legally effective.

The CCF is claiming the vaccine cards are discriminatory to people who cannot get vaccinated for medical reasons. CCF Litigation Director Christine Van Geyn said the system should automatically exempt people who can't get vaccinated for health reasons.

Instead it restricts entry to public spaces for those who can't prove they have two doses of COVID-19 vaccine. The CCF says they are representing the case of a teen girl who developed heart inflammation after getting a COVID-19 vaccine, a woman who developed nerve damage after her first dose, who is now pregnant, and a woman with complex disabilities who is vulnerable to the vaccine.

The Attorney General's Ministry responded to a request for comment from both ministries and said the government has not been served in regard to the petition.

"The province and the provincial health officer fully respect British Columbians' constitutional rights and freedoms,'' it said in an emailed statement.

"We are taking the steps necessary to address and mitigate the effects of the ongoing COVID-19 pandemic on all British Columbians. As the issue of proof of vaccination may be before the courts, we are not in a position to comment further.''