The vaccine mandates have proved to be one of the enduring legacies of the COVID-19 pandemic

The vaccine mandates have proved to be one of the enduring legacies of the COVID-19 pandemic

It’s strange to recall given what ensued, but the spectre of state-imposed mandatory vaccinations and vaccine passports seemed unthinkable during the first year or so of the COVID-19 pandemic. Prime Minister Justin  Trudeau, who went on to impose some of the most restrictive vaccine mandates on the planet, spoke out against vaccine passports as late as May 2021. And yet every province, as well as federally regulated and public sector employers, would go on to adopt vaccine passports and mandatory vaccination policies, respectively, within the ensuing months.

A few years on, vaccine mandates have proved to be one of the enduring legacies of the pandemic. In British Columbia, they remain in place for health-care workers. The persistence of mandates is a reminder of the inertia of regulation: new powers, once wielded, tend not to be voluntarily retracted. Despite an emerging consensus that the COVID-19 vaccines, while excellent at reducing the incidence of hospitalizations and severe infections, perform quite poorly at preventing infection and transmission, bureaucrats have yet again gotten a pass from the courts.

Last week, the B.C. Supreme Court upheld that province’s ongoing vaccine mandate. Justice Simon Coval’s decision highlights the impotence of judicial review when it comes to curbing administrative decisions with serious consequences for liberties. That said, there are still some reasons for hope.

Justice Coval found that Dr. Bonnie Henry had “ample evidence on the record” to support a conclusion that unvaccinated workers posed a greater risk to patients than vaccinated ones as of October 2023. Keep in mind, October 2023 was several months after the pandemic was declared over by the World Health Organization and long after mandates had been dropped in the other provinces. According to Justice Coval, however, COVID-19 continued to pose an “immediate and significant risk” to public health.

Because the case was brought as a judicial review of an administrative decision rather than a direct constitutional challenge to a law, the task before the judge was merely to satisfy himself that Dr. Henry’s orders were reasonable in light of the information available to her at the time. This comprises a maddeningly low standard that puts many of the judgments of bureaucrats and the administrative state effectively outside of the purview of meaningful constitutional review. Had the vaccine mandate been a law passed as a law by a legislature, it would have faced a much tougher go in the courts.

Because of the deferential reasonableness review standard, the challengers focused on public statements of Dr. Henry seemingly acknowledging that, at least as of October 2023, COVID-19 presented a threat on par with the cold and flu viruses. Dr. Henry acknowledged, for example, that “most people in B.C. are no longer at risk of severe illness and hospitalization—even in long-term care, even people who are immunocompromised,” and also said, “[w]e’re sort of in a bit more of a steady state now.” Could mandatory vaccination put in place in response to an emergency really be considered reasonable under “steady state” circumstances?

Justice Coval concluded that it could be. Dr. Henry could still reasonably impose the mandates under a “precautionary principle,” which is the idea that decisions can be made based not just on present circumstances but according to evolving uncertainty and in favour of protecting the health-care system.

Ironically, allowing such a broad cover for terminating some 1,800 B.C. unvaccinated nurses, doctors, and health-care workers almost certainly did more harm than good to the health-care system, by increasing the risk of long wait times and emergency room closures than letting those workers return to work in October 2023.

Another decision released last week provides a bit more hope, but that decision comes from the unionized labour context so it won’t have much precedential value. In that decision, Arbitrator Michelle Flaherty found that Canada Post’s policy requiring employees to get vaccinated or go on unpaid leave, even if they worked exclusively from home, was found to be unreasonable.

In that case, Canada Post claimed that it had “a general health and safety interest in protecting employees from COVID transmission and serious illness so that they can be available to do their jobs.” In other words, if Canada Post got its way, mandatory vaccination policy could be imposed even on its remote workers because it would reduce the risk of them calling in sick.

Flaherty found this a bridge too far. Canada Post’s interest in employee health was, she wrote, “outweighed by the important interests at stake for the employees in question, including their privacy and their financial and economic interest in ongoing paid employment.”

The Canada Post decision is only a small victory. It didn’t find employees who work on-site can’t be forced to take vaccines to prevent transmission in the workplace. That is not a surprise. As the director of a constitutional legal charity, the question of employer vaccine mandates—even where the employer was the federal government—was one of the most frequent and frustrating ones for me to answer throughout the pandemic. On the one hand, it seems intuitive that facing a choice between losing one’s livelihood or submitting to an unwanted vaccine is a serious deprivation of liberty, autonomy, and personal bodily integrity, so one would assume the Charter would hamper employer vaccine mandates.

On the other hand, employee vaccine mandates were not imposed in most cases by governments—and even where they were, it was in the context of an employment relationship, so the Charter did not apply, as we were forced to inform many anguished individuals over the course of the pandemic.

Vaccine passports imposed by governments on citizens, on the other hand, raise wholly different considerations. There may be no constitutional right to keep a job, but I believe there is a constitutional right in a free society not to be forced to accept an injection or be arbitrarily barred from spending time with one’s family, going to the movies, eating at restaurants, and in general doing whatever you want to do that isn’t otherwise illegal. This right is recognized in section 7 of the Charter, which protects both the liberty to make fundamental life choices and the security of the person, which includes bodily integrity.

As it turns out, Dr. Henry also distinguished herself with a particularly egregious vaccine passport policy that failed to provide any workable medical exemptions. The policy was so absurd that a teenage girl named Erica who developed the rare but known side effect of pericarditis following her first shot of the Pfizer vaccine was required to request special permission from B.C. Public Health on a case-by-case basis to attend any place that required a vaccine passport, including her grandmother’s house, unless she submitted to another risky shot. An appeal of that matter, brought by my organization the Canadian Constitution Foundation, was heard in October 2023, and a decision is pending.

Although the Charter may not have done much to protect employees against arbitrary vaccine mandates from employers, we’re cautiously hopeful that the courts will at least recognize that B.C.’s arbitrary vaccine passport policy for all citizens was constitutionally unacceptable.

This article was originally published in The Hub.