JCPC/2024/0068

Gryffyn Benevides (a minor, by Jason Benevides, her father and next friend) (Appellant) v Minister for Education (Respondent) (Bermuda)

Hearing listed

Case summary
Appeal
Change log

Case summary

Case ID

JCPC/2024/0068

Jurisdiction

Bermuda

Parties

Appellant(s)

Gryffyn Benevides (a minor, by Jason Benevides, her father and next friend)

Respondent(s)

Minister for Education (Respondent) (Bermuda)

Issue

Whether the mandatory testing regime 1. breached the Appellant's constitutional right to not be searched without his consent; 2. were not based on lawful authority; 3. breached the principle of legality.

Facts

Following the COVID Pandemic, public schools in Bermuda were due to reopen in October 2021. On 22 October 2021, the Minister of Education announced that school students would be required to obtain a PCR test and submit negative results prior to being re-admitted. Additionally, 80% of students were required to have had a negative pre-return PCR test result for a school to re-open. Any student without a negative PCR test result would be required to remain at home and receive “work packets” until a negative PCR test was provided. The Appellant wishes to challenge that requirement. The Supreme Court of Bermuda rejected the claim on all grounds. Although a mandatory requirement to take a saliva COVID test could constitute a search, there was no breach of the Appellant’s requirement to consent to such a search, as the “search” was consensual and without duress. There was a clear rationale for requiring a COVID test, and it was reasonable in the circumstances. Sections 3(1) and 4 of the Occupational Safety and Health Act 1982 (“OSHA”) provided lawful authority for the testing requirements in relation to public schools and students. There was no issue of legality, as the parents were emailed of such requirements well in advance of their implementation, and the consequences of failing to abide by them. The Court of Appeal upheld the decision, finding that the Appellant did consent to the COVID test, and did not suffer duress, as there was a reasonable alternative to taking the test: being homeschooled. Section 4 of OSHA imposed a duty to ensure that persons who are not employees of an employer, but who may be affected by the conduct of his undertaking, to protect them from health and safety risks, which was satisfied in this instance. There was similarly no issue of legality.