Governments around the world are pouring money into research for a Covid-19 vaccine, hoping that finding one that works will allow the world to get back to normal.
Vaccines are a blessing. They prevent millions of deaths annually. At least 25 people died out of the 40 million Americans who received a 1976 swine flu vaccine rushed into production. The H1N1 vaccine used in Europe and parts of Canada in 2009 saved lives but was linked to a increase in narcolepsy.
Considering the unprecedented speed with which Covid-19 vaccines are being developed, some Canadians are thinking about whether they’ll want to roll up their sleeves.
A new Leger poll finds that 60 per cent of those surveyed don’t believe Canadians should even get a choice: they want the vaccine to be mandatory. Four in 10 say it should be voluntary.
Canada’s premiers may soon need to decide whether to require Covid-19 vaccines before people can go back to work or school. But can they really do that without violating our constitutional rights?
One section of the Charter of Rights and Freedoms that may be violated by a mandatory vaccination is section 7, which says: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
Justice Brian Dickson wrote in the 1988 case R v Morgentaler, which struck down Criminal Code restrictions on abortion, that “security of the person” includes the right to protect one’s body “from interference by others.”
Sticking a needle in a person’s arm is clearly an interference with the body, but is it in accordance with the principles of fundamental justice? There is no set list of principles of fundamental justice, but one used to strike down laws is that they can’t be “overbroad,” which means they can’t capture behaviour that bears no relation to the objective. Former Chief Justice Beverley McLachlin wrote in the prostitution case Canada v. Bedford that a law is overbroad if it criminalizes even a single innocent person just “to make enforcement more practical.”
One could argue that a law which prevents a person from going to work or to school unless she’s been vaccinated is overbroad if the purpose of the law is to create herd immunity (the level needed to stop the disease from spreading) because herd immunity doesn’t require every single person to be vaccinated. Scientists believe that 70 per cent or more of the population may need to be vaccinated or infected to achieve herd immunity against Covid-19. Considering that 70 per cent of Canadian seniors already choose to get the flu shot each year, requiring everyone to get vaccinated for Covid-19 be overbroad.
The section 7 right to “liberty” may also be implicated. Liberty rights include the freedom to move through society. In R v Heywood, the court struck down a Criminal Code provision that prevented sexual predators from loitering near playgrounds, school yards and in public parks. The court said the law was “overly broad” because it prevented sex offenders from using all parks, including ones where there weren’t any children. If a law that prevents paedophiles from hanging out in parks is too big of an interference with liberty for the courts to accept, then a law preventing people from attending school or work just because they haven’t been vaccinated may also be.
Section 1 of the Charter allows governments to limit our rights if those limits are reasonable and justified in a free and democratic society. Would keeping people out of work or school unless they’ve been vaccinated pass that test? It’s impossible to know for sure. On the one hand, the Supreme Court has said that infringements of section 7 “are not easily saved by section 1.” On the other hand, it has said limits are possible in “exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like.” That suggests governments may be able to justify the infringements on rights caused by mandatory vaccination because Covid-19 is an emergency.
A mandatory vaccination law might also be unconstitutional if it doesn’t include an exception based on freedom of conscience and religion, which is guaranteed under section 2(a) of the Charter. The courts have found that freedom of religion is violated when a “claimant sincerely believes in a belief or practice that has a nexus with religion and the impugned measure interferes with the claimant’s ability to act in accordance with his or her religious beliefs in a manner that is more than trivial or insubstantial.” This is a fairly low bar, but the Supreme Court has decided that many limits on freedom of religion can be justified under section 1. For example, the court decided that it’s acceptable for Alberta to force Hutterites to have photos appear on their driver’s licenses, even though their religion doesn’t allow for that.
The only case to deal with freedom of conscience separately from religion was Maurice v. Canada, in which the Federal Court decided that an inmate’s rights were violated because the prison would not serve him vegetarian meals. In Maurice, the court quoted Justice Dickson’s words from a previous case (R v Big M Drug Mart Ltd.), in which he said: “Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.” This indicates that a mandatory vaccination is exactly the type of limit on freedom of conscience that courts might be willing to accept.
That said, New Brunswick’s health minister admitted last year that his province’s attorney general’s office did not believe that removing religious exemptions from its childhood vaccination requirement would survive a court challenge. As a result, the government said it would use section 33 of the Charter, which allows provinces to declare that their law “shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.” This unprecedented threat to use of the “notwithstanding clause” caused an outcry in New Brunswick that seems to have forced the government to back down. In other words, while it’s unclear that mandatory vaccination would be considered unconstitutional by the courts, public pressure could force governments to at least allow for religion- and conscience-based opt outs.