Lawyers representing three Bermuda residents challenging controversial Covid-19 public safety restrictions presented their case before the Chief Justice yesterday.

Courtenay Griffiths QC and Mark Pettingill – representing Albert Brewster, Vincent Lightbourne and Wendy Warren – argued that Government had failed to prove that mandatory hotel quarantining for non-vaccinated residents returning from overseas was “a reasonable requirement” to protect public safety.

Under the order – introduced by Government last month – non-vaccinated residents who travel abroad must stay in a Government-designated hotel for 14 days when they arrive back in Bermuda, at their own expense. Vaccinated residents can quarantine at home.

In his opening submissions Mr Griffiths told Chief Justice Narinder Hargun that the number of Covid-19 infections was in decline.

Referring to Tuesday’s test result statistics, Mr Griffiths said: “Clearly this illustrates that Bermuda’s Covid-19 situation is not one which requires measures as extreme and coercive and unreasonable as mandatory 14-day hotel quarantine.

“Given the current situation, how does it render that further regulations should be introduced?”

Mr Justice Hargun replied: “We were in a similar situation just before the last outbreak and that resulted in 21 deaths.”

Mr Griffiths said it was “breathtaking and patronising” for Government to suggest that his clients’ objections to the order were “trivial”.

“It affects their ability to travel to see their children overseas – they will be liable to pay the high cost of mandatory hotel quarantine which they cannot afford,” he said.

Mr Pettingill pointed out that, under the current order, someone arriving at the airport who had been vaccinated but tested positive could quarantine at home. Conversely, someone who had not been vaccinated and tested negative would have to quarantine at a hotel.

He said: “It makes no sense – it’s a crapshoot. The example is not just unreasonable, it’s irrational.”

Mr Pettingill said it was discriminatory to suggest that some people needed supervised quarantine simply because they had not been vaccinated.

He said: “This is a punitive measure in which you are fining people for not being vaccinated. You are incarcerating them.

“The non-vaccinated are the naughty ones and the vaccinated are the good ones – that’s nonsense. How can you distinguish between people who are going to behave? ”

Mr Pettingill said that his clients were not opposed to quarantining – but that they could do so in their own homes.

He said: “There is no objection to quarantining whatsoever – the science supports quarantining as an important measure.

“Government has done an outstanding job addressing this particular pandemic but this measure is too far – it is unnecessary and irrational.”

He said that stringent penalties could be imposed for quarantine breaches to ensure a high compliance rate.

He asked: “Why must quarantining take place in a hotel when, with the right provisions in place it can take place at home?”

He insisted that Government had failed to prove that the measure was “reasonably required” in order to protect public health.

He added that a right balance had to be struck between public health and an individual’s constitutional rights, and that neither would be compromised under home quarantining.

In response, Delroy Duncan QC, representing David Burt, the Premier, and Kim Wilson, the health minister as respondents, pointed out that the order will expire on September 30.

He said: “There are moving scales that the Government is trying to balance.

“These measures are designed to manage risk – they are not designed to discriminate between vaccinated and non-vaccinated people.”

Citing previous cases, Mr Duncan said that the plaintiffs were incorrect to suggest that the burden of proof as to whether the order was “reasonably required” lay with Government.

The case continues today.