Brewster and Ors v Premier of Bermuda and Minister of Health

• Jurisdiction: Bermuda
• Judgment Date: 23 July 2021
• Docket Number: Civil Jurisdiction 2021 No 162
• Court: Supreme Court (Bermuda)

[2021] Bda LR 66

In The Supreme Court of Bermuda

Civil Jurisdiction 2021 No 162

In the matter of the 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 2021

Between:

Albert Brewster

Vincent Lightbourne

Wendy Warren

Applicants

and

Premier of Bermuda

Minister of Health

Respondents

Dr C Griffiths QC and Mr M Pettingill for the Applicants

Mr D Duncan QC and Mr R Hawthorne for the Respondents

The following cases were referred to in the judgment:

de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands & Housing [1999] 1 AC 69

Nyambirai v National Social Security Authority [1996] 1 LRC 64

Bank Mellat v HM Treasury [2013] UKSC 39

R v Oakes [1986] 1 SCR 103

Arorangi Timberland Ltd v Minister of Cook Islands National Superannuation Fund [2016] UKPC 32

R (Rotherham MBC) v Secretary of State for Business, Innovation and Skills [2015] UKSC 6

R (Dolan and Ors) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605

Philip v Scottish Ministers [2021] CSOH 32

Minister of Home Affairs v Fisher [1980] AC 318

Spencer v Canada (Minister of Health) and Attorney General of Canada [2021] FC 621

Freedom of movement — Mandatory quarantine at government approved hotel — Whether reasonable requirement in interests of public health

JUDGMENT of Hargun CJ

Introduction

1. In these proceedings Albert Brewster, Vincent Lightbourne and Wendy Warren (“the Applicants”) seek to challenge the constitutional validity of a provision of the Quarantine (COVID-19) (No 3) Order 2020 (as amended) subjecting all non-vaccinated persons travelling to Bermuda to mandatory supervised quarantine and to bear all costs related to it at Government designated hotels or guest houses. The Applicants contend that such a requirement infringes their fundamental right to protection of freedom of movement enshrined in section 11 (1) of the Bermuda Constitution Order 1968 (“the Constitution”).

2. The application is made within the context of the current COVID-19 pandemic. The background to the current pandemic has been well documented. On 31 December 2019, China notified the World Health Organisation (“the WHO”) of a cluster of unusual pneumonia cases. They were later identified as being caused by a novel coronavirus, now referred to as the COVID-19. On 30 January 2021 the Director-General of the WHO made a statement on the emergence of a previously unknown pathogen which had escalated into an unprecedented outbreak. He said that there were now 98 cases in countries outside China including countries in Asia, Europe and North America, and they included cases where the disease had been transmitted between humans. He reported a public health emergency of international concern over the global outbreak of novel coronavirus1. The WHO declared the novel coronavirus (COVID-19) outbreak a global pandemic on 11 March 2020.

3. The Minister of Health in the Government of Bermuda, the Honourable Kim N. Wilson, JP, MP, (“the Minister”) has given evidence to the Court by affidavit dated 28 June 2021. The Minister confirms that on 1 April 2020, the Governor declared a State of Emergency by proclamation under section 14 of the Constitution. The proclamation was published in the Official Gazette on 2 April 2020. The State of Emergency was extended by the House of Assembly to account for the Government's 24 hour shelter-in-place that commenced on or 4 April 2020 to contain COVID-19 in Bermuda.

4. The Minister consulted with Dr Ayo Oyinloye, the Chief Medical Officer (“the CMO”) about COVID-19 and the severity of the threat it posed to public health in Bermuda. This consultation also considered the immediacy of the risk of an outbreak and the effect that may have on the Bermuda public. The Minister considered it necessary to take extraordinary measures to prevent, control or suppress the spread of COVID-19 and therefore took the decision to declare a public health emergency pursuant to section 107A of the Public Health Act 1949.

5. The Minister also considered it necessary to declare a public health emergency so that the public would appreciate that the spread of COVID-19 was still rampant in these Islands, that the risk of and outbreak was clear and immediate and that the consequences of such an outbreak could be fatal. That declaration was made in the Public Health (COVID-19) Emergency Order 2021.

6. In June 2021, the Minister consulted with the CMO about whether the public health emergency that had been declared should be extended. The Minister states that it was clear that the pandemic posed a more severe threat to public health because of the introduction of variants across the world, which had found their way into Bermuda. The Minister therefore concluded that it was necessary to extend the public health emergency. The extension of the public health emergency was in the Public Health (COVID-19) Emergency Extension (No 3) Order 2021.

7. It is out of the Emergency Orders above that the Quarantine (COVID-19) (No 3) Order 2020 (“the Quarantine (No 3) Order”) was enacted. The mandatory 14 -day quarantine at a Government approved hotel for unvaccinated travellers is provided for in Part 4 of the Quarantine (No 3) Order. Paragraph 13 of the Quarantine (No 3) Order provides that:

“Mandatory quarantine for unvaccinated traveller

13 (1) Subject to subparagraph (3), each person who travels to Bermuda by air and who does not have proof of having obtained a COVID-19 vaccination under paragraph 6A, shall, upon being landed in Bermuda, be placed in quarantine—

• (a) for a period not exceeding 14 days, subject to paragraph 18;

• (b) at a government authorized place approved by the Quarantine Authority and the Minister responsible for national security, for the purpose.

(2) Subject to paragraph 14B(1), a person to whom this paragraph applies shall bear the cost for accommodation and board at the place of quarantine.

(3) Where a person to whom this paragraph applies receives a negative COVID-19 PCR test result on or after a period of 14 days, he shall be released from quarantine and be provided with a written notification of his test results.”

Procedural background

8. These proceedings were commenced by Expedited Originating Summons dated 1 June 2021 challenging the mandatory quarantine for unvaccinated travellers by reference to a press statement made by the Minister of National Security on 7 May 2021. Paragraph 16 of the Originating Summons states that:

“On 7 May 2021, the Minister of National Security made the following remarks 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 and will be required to bear all costs for the hotel/guest house;

b. Last year, the Government spent $1.5 million on quarantine expenses. This was part in due to the fact that the hotels were closed. This year, the Government is simply not in a position to subsidise the cost of quarantine accommodations;

c. If rooms are not available for your preferred dates, you must change your flight for a date when a Government-authorised hotel is available or, you should look at another hotel;

d. You could face a fine if you do not provide evidence of pre-paid accommodation at a Government-authorised hotel prior to arriving in Bermuda;

…

(“The Proposed Amendments”)”

9. The Expedited Originating Summons challenges mandatory quarantine for unvaccinated travellers as Proposed Amendments to the Quarantine (No 3) Order as amended. As noted, the Originating Summons does so by reference to a press statement made by the Minister of National Security on 7 May 2021. The actual change in the legislation was made by the Quarantine (COVID-19) (No 3) Amendment (No 2) Order 2021 (“the Amendment Order”) made on 18 June 2021 and became operative on 20 June 2021.

10. In support of the application for an injunction, each of the Applicants filed affidavit evidence as set out in the earlier Judgment dated 9 June 2021. In those affidavits the Applicants state that they will indefinitely be prevented from enjoying an ordinary parental relationship with their children residing abroad on the ground that they and their children have chosen not to be vaccinated. They complain that they will be required to incur the significant financial burden of having to pay approximately $3,500 at the designated hotels if they are to enjoy their ordinary familial relationship. They also complain of risks of serious deterioration to their mental health.

11. Ms. Wendy Warren has filed a further affidavit dated 5 July 2021 exhibiting several press releases and local news reports in relation to the mandatory 14-day hotel quarantine.

The relevant Constitutional provision

12. The Applicants rely upon section 11 of the Constitution in support of their contention that the Amendment Order is unconstitutional. Section 11 of the Constitution provides that:

“Protection of freedom of movement

11 (1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of movement, that is to say, the right to move freely throughout Bermuda, the right to reside in any part thereof, the right to enter Bermuda and immunity from expulsion therefrom.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision—

• (a) for the imposition of restrictions on the movement or residence in Bermuda or on the right to leave Bermuda of persons generally or any class of persons that are reasonably required—

  • (i) in the interests of defence, public safety, public order, public...