Military committee leads the way on declaring vaccine mandates unconstitutional

Military committee leads the way on declaring vaccine mandates unconstitutional

In January 2021, Prime Minister Justin Trudeau ruled out COVID-19 vaccine mandates. In March, he shot down the idea again. In May, he dug in, saying, “We’re not a country that makes vaccination mandatory.” But in August of that year, Trudeau made a U-turn, announcing mandatory vaccinations for public servants and anyone boarding planes and trains. Then he called a snap election.

The Liberals made a calculated decision that they could capitalize on the anger that the vaccinated majority felt toward the unvaccinated by mandating vaccines at a time when Conservative Leader Erin O’Toole insisted vaccination was a personal health decision. Liberal strategist Scott Reid outlined the plan on Twitter: “OToole is a nail. Vaccines are a hammer. Swing hard.”

Back in power, Trudeau mused on Quebec TV about whether we should “tolerate” these “extremists,” “misogynists” and “racists.” And yet, when the pandemic subsided, Trudeau changed his tune again. He claimed that he never forced anyone to get vaccinated. Grounding passengers and firing public servants were mere “incentives.”

Now, the Military Grievances External Review Committee, which was tasked with reviewing the cases of Canadian Forces members who were kicked out of the military for refusing to get vaccinated, has called out the claim that no one was ever forced to get vaccinated. While service members “theoretically” retained a choice, “the consequences of a refusal are such that this choice is not really a choice,” wrote committee member Nina Frid in her review.

Citing Judge Mark Phillips of the Quebec Superior Court in the 2022 case Syndicat des métallos, Frid explained that policies that force people to choose between staying unvaccinated and keeping their jobs engage the charter-protected rights to liberty — which includes the right to direct one’s own medical care — and security of the person, which protects bodily integrity. Not only were these rights engaged, Frid found the policy was unconstitutional.

Frid is correct. Judges who upheld vaccine mandates were wrong to accept that requiring someone to choose between vaccination and severe consequences like termination did not violate their charter rights. In fact, binding Supreme Court precedents require judges to conclude that Section 7 of the charter is engaged when a people left with no meaningful choice between complying with the law and exercising their liberty or security of the person rights.

The most egregious case of a court buying the claim that vaccine mandates did not engage Section 7 is Lewis v Alberta Health Services. Annette Lewis was refused an organ transplant after she chose not to get vaccinated. The Alberta Court of Appeal somehow concluded that the transplant program’s vaccine mandate was not “coercive,” even though Lewis faced virtually certain death if she did not comply. The court claimed Lewis remained free to make choices about her medical care without state interference, even though her choice was to comply or die. The Supreme Court, shamefully, refused to consider her appeal.

Lewis was not left with a meaningful choice, and the Supreme Court has clearly ruled that governments infringe people’s rights when they leave them with no meaningful choice but to comply. In Bedford v Canada, the court struck down three prostitution laws as violations of security of the person.

It nixed a law that banned bawdy houses because the law forced sex workers to accept more dangerous out calls, invalidated a provision that made it illegal to live off the avails of prostitution because it prevented them from hiring bodyguards and ended the ban on communicating in a public place because it prevented sex workers from reducing their risk of injury by screening clients out in the open.

The government tried to argue that these laws did not cause harm to the sex workers; rather, it contended that those harms were mere consequences of sex workers’ bad decisions. A unanimous Supreme Court rejected that argument. Forcing sex workers to choose between the only work available to them and their security of the person left them with no meaningful choice.

Frid recognized, as Bedford requires, that forcing military personnel to choose between keeping their jobs and their rights was also not a meaningful choice, and so their rights were violated. She also decided that the policy could not be upheld as a demonstrably justified limit under Section 1 of the charter because, among other reasons, the government could have achieved its goals while accommodating the small minority of soldiers who insisted on their charter rights by offering them remote work, testing or leaves of absences.

Frid’s decision is not binding, but it will be considered by the chief of the defence staff when he makes decisions on whether hundreds of discharged soldiers and personnel can be reinstated.

The next big test of vaccine mandates comes in October when the British Columbia Court of Appeal hears an appeal of the 2022 decision that upheld B.C.’s vaccine passport on a technicality. Hopefully the judges in that case will follow Frid’s lead and the binding Supreme Court precedent that charter rights are engaged when government leaves a person with no meaningful choice.

This article was originally published in National Post.