Update on interlocutory relief sought pursuant to the Bermuda Constitution Order, 1968 – Covid-19 restrictions and the Public Interest

Update on interlocutory relief sought pursuant to the Bermuda Constitution Order, 1968 – Covid-19 restrictions and the Public Interest

On 9 June 2021, the Chief Justice of the Supreme Court of Bermuda, the Hon. Mr. Narinder Hargun, in his first ruling regarding Brewster et al. v. Premier of Bermuda et al. refused an application to enjoin a change to the Public Health (Covid-19) Emergency Powers Regulations, 2021. The change in question required all non-immunised people, travelling to Bermuda, to quarantine in a pre-approved hotel or guesthouse. Furthermore, the travellers in question were required to bear the cost of their stay at the Government approved facilities.

In seeking the injunction, the applicants claimed that the proposed regulation would violate the guarantee to freedom of movement as guaranteed by Section 11 of the Bermuda Constitution Order, 1968.  Counsel for the applicants then argued that the temporary injunction should be granted per the three-part test arising from the case of American Cyanamid v. Ethicon Ltd. [1975] A.C. 396 (5 February 1975) as:

• there was a serious issue to be tried;

• the applicants would suffer irreparable harm if the regulations were allowed to come into force; and

• the balance of inconvenience lay in favour of the applicants.

In considering that applicants’ argument, the Chief Justice held that a more detailed analysis was required given the constitutional nature of the application. For that reason, the Chief Justice, following the lead of the Privy Council, adopted the Canadian approach to such matters per the ruling of the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General) [1994] 1 SCR 311. Although the RJR-MacDonald case was built on the foundation of the American Cyanamid,it was designed to consider constitutional applications by undertaking a more in depth analysis and took particular account of the public interest.

In ruling on the first point raised by the applicants, both the Chief Justice and counsel for the Government of Bermuda accepted there was a serious issue to be tried.

In response to the second point, the Chief Justice found that the applicants had filed no evidence establishing their intent to travel overseas so that they would be subject to mandatory quarantine within the following eight weeks. The Chief Justice also rejected the applicant’s claim that they would suffer irreparable harm on account of having to spend approximately BMD$3,500 for their quarantine hotel as a monetary loss “by its very nature, is unlikely to be irreparable”. In ruling on that point, the Chief Justice also rejected the claim that the mandatory quarantine in a hotel would result in physical and psychological damage for lack of evidence noting that speculative arguments are incapable of establishing irreparable harm.  

In deciding the “balance of inconvenience” the Chief Justice focused on the public interest and weighed that against the claim of the applicants that they would be inconvenienced by having to quarantine for 14 days. In conducting that exercise, the Chief Justice held that at the beginning of the analysis, the Court will assume that the legislation “is directed to the public good and serves a valid purpose”.  The Chief Justice also held that the presumption will weigh heavily in favour of the Government, as the Courts should avoid declaring laws passed by the Legislature as being “inoperable in advance of a complete constitutional review” especially when the Government has relied on the advice of experts before enacting that legislation.

In considering the application before him, the Chief Justice took note of the fact that the Regulations were passed in response to a global health emergency that posed challenges held in common by national governments worldwide.  The Chief Justice then noted that in Canadian cases that dealt with substantially similar legislation, passed in the face of the Covid-19 Pandemic, the Courts accepted the evidence that home quarantines were less effective in containing the spread of the SARS-Cov-2 virus than hotel quarantines. For that reason, the Chief Justice adopted the findings of the Canadian Courts by holding Bermuda’s pending restriction was rational in that it would provide an extra layer of protection to the public.

The Chief Justice then concluded his ruling by finding that the new quarantine requirements were designed to prevent and/or minimise the odds that the SARS-Cov-2 virus would be further imported into Bermuda. The Chief Justice then dismissed the injunction application noting that as it was being heard on an ex parte,on notice, basis and the Government had yet to be afforded an opportunity to file evidence, he was bound to presume that the public interest lay in denying the injunction.

The first ruling in Brewster provides us with a fascinating case study in how interlocutory relief in constitutional applications will now be applied in Bermuda.  In rejecting the application, the Chief Justice has also made clear that speculation in such applications is not acceptable and the high standard of proof that must now be met by applicants seeking to enjoin the passage of legislation on the basis that its effect will prove contrary to the public interest.