Debate Over the Charter of Rights and Freedoms versus Vaccine Mandates in Canada
Various announcements have been made recently regarding vaccination mandates at the federal level and in some provinces. In many cases, these mandates have implications for our members. For some time there has been debate in our society over vaccine passports on the one hand and the requirement to be fully vaccinated at work on the other. According to the Federal Government website, the cumulative percentage of people who have received at least one dose of a COVID-19 vaccine in Quebec is 78.52% as of October 23, 2021.  However, some people oppose mandatory vaccination, citing the Charter of Rights and Freedoms. Are they right to do so? Would they be successful in court if they were to appeal? That is what UCTE will try to decipher in this article.
This situation came to light in Alberta following a policy decision by Premier Jason Kenney on COVID-19. Demonstrators took to the streets in opposition to a vaccine passport, shouting — and comparing their situation to Jewish victims of the Holocaust. These demonstrations meant a halt to measures imposed by the Alberta government as it feared a rebellion on the part of the entire population.
It is important to understand that in such a situation the Charter does not apply. “There is a common misunderstanding of how the Charter works,” says Carissima Mathen, a law professor at the University of Ottawa specializing in the Constitution. The Charter of Rights and Freedoms applies to governments, their agents, and their laws. In other words:
“[The Charter] is a way to hold the state accountable for laws and decisions that may be oppressive,” Mathen said.
This means that, in the event of a Charter challenge to a vaccine mandate, the mandate could only apply if implemented by the state, and only government employees can challenge their employer.
Consider the example of a company operating in Ontario. If Company X required its employees to be vaccinated, no one could sue the employer for that decision. It would be up to the employer to sue the Government, since it is the employer who follows policy, not the employee.
A great deal of misinformation is posted on the Internet, influencing Canadian protesters who cite the Charter to defend their point of view on mandatory vaccination policies against COVID-19. The following three topics are key to the debate and the details of each should be understood.
Proof of Vaccination — Employers, Employees and Customers
Since September, several provinces have begun integrating the QR code which requires full vaccination to access certain services such as, restaurants, bars, gyms, and others. In such case, it was up to businesses, and therefore employers, to choose whether or not to implement the Government mandate.
In a situation where a private employer would require staff to be vaccinated, this would not represent a government measure but rather a decision by the employer. Many employers linked to the Government of Canada have been directed to implement vaccination policies by 30 October 2021. These employees have the choice to continue working in Canada for another employer that does not require mandatory vaccination.
The pressure on both parties is not insignificant. In the cases mentioned above, the Charter would not apply. Even if the private sector employer wanted to challenge the mandate, “it is unlikely to be a violation of the principles of fundamental justice,” says Jennifer Koshan, a professor at the University of Calgary’s Faculty of Law. If the federal or provincial government employee were to attempt to challenge this decision under Section 7, they probably would not succeed. The courts have ruled and made it very clear that a person does not have the right to a profession.
The Right to Life, Liberty and Security of the Person — Section 7 of the Charter
When a person makes the argument that the Charter of Rights and Freedoms protects right to life, liberty and security of the person, they very often cite Section 7 of the Charter. However, this section has its limitations. The focus is really on infringement that would contravene the principles of fundamental justice.
“If a person tries to claim that a vaccine passport violates their liberty, then that person would have to show that it was done in an arbitrary or overreaching manner,” said Jennifer Koshan, a professor in the University of Calgary’s Faculty of Law.
Government actions can run afoul of Section 7 even where they respect fundamental principles of justice. In other words, Canadian citizens are entitled to a fair trial without discrimination. In short, the Government has the right to impose a policy which protects the health and safety of the entire population. For example, if the Government failed to impose health policies that ensured the health and safety of Canadians, it could be guilty of failing to protect the right to life, liberty and security. If a person seeks to use this Section to avoid vaccination, they would have to prove that the Government’s decisions failed to respect the principle of fundamental justice, thereby endangering their life, or risking death.
Equality Rights — Section 15 of the Charter
Section 15 of the Charter of Rights and Freedoms protects equality rights, ensuring protection against discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. In the case of an employer or employees wishing to challenge this mandate, it would have to be shown that one of these was violated in relation to their employment.
“It’s not enough to declare that you have been treated differently from others simply because you do not wish to be vaccinated,” said Carissima Mathen, a law professor at the University of Ottawa specializing in the Constitution.
This section of the Charter of Rights and Freedoms raises many issues. The vaccine is accessible and free, which the Government of Canada has ensured. Since this is a broad issue in society, it may be that this Section is limited.
While some people have not been affected personally by COVID-19, this does not mean that there is no major problem elsewhere. Take the case of Alberta, where the Provincial Government decided to drop a majority of health restrictions and, as a result, COVID-19 cases, hospitalizations and deaths have skyrocketed. Since that decision, Albertans have been dying from COVID-19 at more than three times the average in Canada. With various variants introduced in the country, caution should be exercised. Over 70% of the population in Alberta had received a first dose when restrictions were lifted, but a highly transmissible variant then emerged with unfortunate consequences.
Can a government’s inaction be synonymous with a violation of rights and freedoms? The answer is Yes. This pandemic makes it difficult to protect individuals as circumstances affect the general public health. Individual rights under the Charter of Rights and Freedoms are being set aside to give priority to the majority of the population, even though the Charter states that all such rights and freedoms are subject to reasonable limits. Drastic policies have been put in place to maintain the health and safety of the Canadian population. UCTE wants to assure you that if you have medical or other issues related to the vaccine, we will be there to assist you in protecting your job. You can contact your regional Vice-President if you have any questions on this matter.