Covid-19: Roadmap provided for a constitutional challenge

Covid-19: Roadmap provided for a constitutional challenge

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On 23 July 2021, the Hon. Mr. Narinder Hargun, Chief Justice of the Supreme Court of Bermuda handed down his second ruling in the application of Brewster et al. v. The Premier of Bermuda et al.   

The decision considered the substantive issue of a constitutional challenge filed in relation to the requirement contained in Covid-19 regulations pertaining to quarantining requirements (“the Quarantine Requirement”) that all unvaccinated travellers to Bermuda quarantine for 14 days in a Government approved hotel, at their own expense.  

It was argued that this form of enforced Quarantine Requirement infringed the right to freedom as enshrined in Section 11 of the Bermuda Constitution Order, 1968 (“the Order”). Although the Order contains a “saving” provision, which allows for exceptions to the right of freedom in the interest of public health, the applicants argued that the new regulation was excessive. 

In rejecting the challenge, the Chief Justice relied on the “proportionality test”, as prescribed by the Privy Council in de Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and Others (Antigua and Barbuda) [1998] UKPC (30th June, 1998).

In considering whether the Quarantine Requirement should be “saved”, on public health grounds, the Chief Justice charted a new procedure for Bermuda, which added to the core of the de Freitas test.   In considering jurisprudence from England, Scotland and Canada, the Chief Justice held that:

  • an applicant must first establish a prima facie case that a guaranteed constitutional right has been breached by a provision of law;
  • if the applicant succeeds in establishing that prima facie breach, the burden then shifts to the Government to meet the terms of the classic de Freitas test, to a balance of probabilities, by proving:
  • there was a pressing and substantial concern, or pressing social need that justified the passage of the law that appears to infringe the guaranteed right;
  • the legislation is rationally connected to the aforementioned concern or need;
  • where the rational connection has been established, that it amounts to a minimal impairment of the guaranteed right; and
  • where the Government succeeds in satisfying the de Freitas test, as listed above, the burden will then shift back to the applicant to prove to a balance of probabilities that the measure should still be struck down on account of it not being necessary within a “democratic society”.

The Chief Justice noted that expert technical advice will be considered by the courts before analysing the evidence through the lens of the procedure set out above. Indeed, he commented that it would be very rare occasion for the Court to “second guess” the Government.  In emphasising that a wide margin of appreciation is owed to the Government the Chief Justice explained that the Executive Branch, properly advised, would have far more experience and expertise in setting social policy than the unelected Court and was also accountable to the voting public after implementing such policies.

In applying the above to the applicants’ case, the Chief Justice first ruled that a prima facie breach of the guaranteed right to freedom of movement had been established.

The Chief Justice then held that as the applicants had met their evidential burden, the burden of proof then switched to the Government to justify the Quarantine Requirement.   In considering the evidence and ruling on that issue, the Chief Justice found that:

  • the Covid-19 Pandemic constituted a pressing and substantial concern / pressing social need;
  • the Quarantine Requirement was rationally connected to the management of the Covid-19 Pandemic as:
  • the rate of infection in vaccinated persons was much lower than that in unvaccinated people;
    • the probability of vaccinated persons infecting others was much lower than that of an unvaccinated person;
    • the 14 day term of the Quarantine Requirement was based on Centre for Disease Control guidance and was based on statistics as to the amount of time that was required for Covid-19 to manifest itself after an individual is infected with the SARS-Cov-2 virus;
    • in the experience of the Ministry of Health and per the statistics it had compiled, home quarantine orders were less effective than hotel quarantine in containing the spread of Covid-19;
    • given the limited resources of the Government, it was reasonable to require a traveller to pay for their quarantine housing after electing to travel as that levy contributed toward the overall objective of limiting the spread of Covid-19;
  • the Quarantine Requirement infringed the guaranteed right of freedom of movement no more than was necessary.   This finding was based on the fact that no evidence had been led by the applicants that contradicted the Government’s data demonstrating that SARS-Cov-2 had been spread in Bermuda by those who violated their home quarantine orders and by persons who illegally visited those under home quarantine orders.

It was on the basis of his above findings that the Chief Justice then ruled that the Government had met the evidentiary standards required by de Freitas and that the burden of proof then shifted back to the applicants to demonstrate that the Quarantine Requirement was not reasonably justifiable in a democratic society.   As the applicants led no evidence on that point, the Chief Justice then held that the applicants had failed to meet the standard of proof and proceeded to dismiss the claim. The ruling in Brewster is highly significant in that a more thoughtful, evidence based approach is now required when the constitutionality of Bermudian legislation is challenged.   The Chief Justice has now provided us with a clear “road map” as to what a constitutional challenge should look like and how the de Freitas test will be applied. Although enforced quarantining is now not a practical consideration in Bermuda, it will be interesting to see what challenges, if any, are mounted in the future as the spread and impact of Covid-19 develops during the course of 2022.