Albert Brewster v The Premier of Bermuda

• Jurisdiction: Bermuda
• Judge: Hargun CJ
• Judgment Date: 09 June 2021
• Docket Number: CIVIL JURISDICTION
• Court: Supreme Court (Bermuda)

[2021] SC (Bda) 45 Civ

In The Supreme Court of Bermuda

Before:

Hon. Chief Justice Hargun

CIVIL JURISDICTION

2021: No. 162

IN THE MATTER OF BERMUDA CONSTITUTION ORDER 1968

AND IN THE MATTER OF THE PROPOSED AMENDMENTS TO THE QUARANTINE (COVID-19) AMENDMENT ORDER 2021

AND IN THE MATTER OF THE PROPOSED AMENDMENTS TO THE PUBLIC HEALTH (COVID-19 EMERGENCY POWERS) (PHASED-REOPENING) REGULATIONS

Between:

(1) Albert Brewster

(2) Vincent Lightbourne

(3) Wendy Warren

Applicants

and

(1) The Premier of Bermuda

(2) The Minister of Health

Respondents

Representation:

Mr. Mark Pettingill of Chancery Legal Ltd. for the Applicants

Mr. Delroy Duncan QC and Mr. Ryan Hawthorne of Trott & Duncan Limited for the Respondents

Application for an interim injunction restraining the implementation of mandatory quarantine of unvaccinated residents on the ground that it infringes the Applicants' fundamental rights under the Constitution; test to be applied in relation to the grant of interim injunction involving constitutional rights; role and obligations of an expert witness in court proceedings

Hargun CJ

Introduction

1 At the conclusion of the hearing on 4 June 2021 the Court dismissed the ex parte on notice application by Mr. Albert Brewster, Mr. Vincent Lightbourne and Ms. Wendie Warren (the “Applicants”) for “ an immediate interim injunction and/or stay… that prohibits and/or restrains the Respondents from implementing the Mandatory Quarantine on 6 June 2021 until such further order of the Court and in any event not before this Honourable Court's substantive determination of the Applicants' constitutional challenge.” This Judgment sets out the Court's reasons for dismissing that application.

2 In these proceedings the Applicants seek a declaration that the implementation of the proposed amendments to the Quarantine (Covid- 19) (No. 3) Amendment Order 2021 are and/or will violate, inter-alia, the Applicants' constitutionally enshrined fundamental rights to freedom of movement pursuant to section 11 of the Bermuda Constitution Order 1968 (the “ Constitution”). The proceedings are brought against the Premier of Bermuda as the First Respondent and the Minister of Health as the Second Respondent (the “ Respondents” or the “ Government”).

3 The Applicants rely upon the remarks made by the Minister of National Security on 7 May 2021 during a Government press conference which indicated that the Government intended to amend the existing regulations to require, inter alia:

• (a) all non-immunised persons travelling to Bermuda are subject to mandatory supervised quarantine for a period of 14 days and will be required to bear all costs for the hotel/guest house.

• (b) Persons could be fined if they did not provide evidence of prepaid accommodation at a Government designated hotel prior to arriving in Bermuda.

• (c) The three approved quarantine locations are the Coco Reef Resort ($204 single and $230 for double occupancy); Grotto Bay Beach Resort ($291.88 pp/ and $12.50 for additional person); Hamilton Princess & Beach Club ($289.30 for a deluxe garden view room; $356.30 for a deluxe harbour view room).

4 In the ex-parte Summons seeking emergency interim injunctive relief (the “Summons”) the Applicants have referred to the remarks of the Minister of National security as the “Proposed Amendments” and as “Mandatory Quarantine”.

5 At the commencement of the hearing the Court advised the parties that the substantive application would be heard by the Court on 7–8 July 2021 and it is expected that a judgment will be delivered by the Court shortly thereafter. It is likely that a judgment in relation to the substantive challenge would be delivered by the Court within the next 8 weeks.

6 The issue for determination of the Court was whether in the circumstances it was just and equitable that the Court should restrain the implementation of Mandatory Quarantine pending the determination of the substantive issue in this action.

The factual basis of the Application

7 All three applicants have filed affidavits in support of the application for an interim injunction restraining the Respondents from the implementation of Mandatory Quarantine. Their evidence is summarized by Mr. Pettingill in his written submissions provided to the Court.

8 All three Applicants maintain that they will unreasonably and unjustifiably face significant pressure and coercion and may make an irreversible decision under duress, to get the vaccine simply so that they are not subject to the Mandatory Quarantine and can enjoy the rights guaranteed by section 11 of the Constitution.

9 In addition, Mr. Brewster states in his affidavit that if the Mandatory Quarantine becomes effective and his fundamental right of freedom of movement is contravened and/or restricted:

• (a) He will indefinitely be prevented from enjoying an ordinary parental relationship with his three Bermudian children (currently residing abroad) who he financially supports simply because he and his children have chosen not to get the vaccine. They will be required to incur significant financial burden of having to pay approximately $3,500 (not including the provision of food) at the designated hotels if either of them is to enjoy their ordinary familial relationship.

• (b) It is likely to exacerbate his pre-existing colon disease and digestive disorder and he will not receive the proper medical attention and/or dietary requirements will not be addressed.

• (c) His mental health risks serious deterioration. He has already suffered serious anxiety and depressive feelings and has been referred to a clinical psychologist in respect of those feelings which arise from, inter-alia, the feeling of rejection, isolation, and depression which arise from feeling dejected.

10 Mr. Lightbourne adds that if the Mandatory Quarantine becomes effective and his fundamental right of freedom of movement is contravened and/or restricted:

• (a) He will indefinitely be prevented from enjoying an ordinary parental relationship with his eldest Bermudian daughter (aged 19 and currently residing abroad with her mother) who he financially supports. He regularly arranges to visit and/or bring his eldest daughter to Bermuda. He will be required to incur the significant financial burden of having to pay approximately $3,500 (not including the provision of food) at the designated hotels, in order for his eldest daughter to arrive in Bermuda and/or he will be subject to taking two weeks off from work to quarantine at the luxury resort and to do so would be financially catastrophic such that his other children, including his two-month infant son, would suffer irreparable harm if he is unable to financially care for them.

• (b) His mental health risks serious deterioration as a result of, inter-alia, the strain of his family relationship and/or the feelings of having to choose between which children he enjoys a relationship with and/or the feelings that he is being unfairly discriminated against and subject to humiliation and/or differential treatment at work and/or the community simply because he has chosen not to receive the vaccine.

11 Ms. Warren confirms that if the Mandatory Quarantine becomes effective and her freedom of movement is contravened and/or restricted:

• (a) She will indefinitely be prevented from enjoying an ordinary parental relationship with her daughters (who are currently abroad pursuing professional development opportunities), both of whom she financially supports. She regularly arranges to bring her daughters to Bermuda and/or visit them in order to enjoy an ordinary parental relationship with them. She also makes the point that she cannot absorb the extraordinary expense of approximately $3,500 for Mandatory Quarantine.

• (b) She will be subject to taking two weeks off from work to quarantine at the luxury resort properties and this is impracticable given that she is employed as a teacher.

• (c) She risks losing her family homestead on the basis that in the event of a medical emergency, she had to travel overseas to visit one or both of her daughters or they were required to travel back home, she would be left with the unattractive decision of having to choose between paying a mortgage or the Mandatory Quarantine for herself and/or her daughters.

12 It is to be noted that none of the Applicants in their affidavits assert that they or their children have any fixed plans to travel to or from Bermuda within the next 8 weeks or so.

The appropriate test for the grant of an interim injunction involving constitutional issues

13 In his written submissions Mr. Pettingill submitted that the applicants rely upon the principles governing the granting of interim injunctive relief as set out in the House of Lords decision in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1. He submitted that in considering whether to grant the interim injunction the Court has to ask itself the following three questions in respect of the present application:

• (a) Have the Applicants established that there is a serious issue to be tried?

• (b) Are damages an adequate remedy to resolve the Applicant's grievance?

• (c) Will the granting of an interim injunction cause less harm to the Respondents compared to the likely harm to the Applicants will suffer if the injunction is not granted?

14 Mr. Pettingill invites the Court to preserve the status quo pending the substantive hearing of this matter, at which time the Respondents, as a matter of law, he submits, will be required to provide evidence substantiating the contention that Mandatory Quarantine is, inter-alia, reasonably required.

15 The Court accepts Mr. Duncan QC's submission, on behalf of the Government, that the test articulated by Mr. Pettingill is not the applicable test in relation to an application for an interim injunction involving a constitutional issue and his reliance upon cases such as London Borough of...