Episode 11: COVID-19 mandatory vaccination – Charter challenges

October 8, 2021 | Tracey M. Bailey, KC, Annie Alport

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Annie: Hello and welcome to Morning Commute with Miller Thomson. You’re listening to Episode 11.

Annie: I’m Annie Alport.

Tracey: And I’m Tracey Bailey. This is the second episode in our mandatory vaccination series. As we mentioned in our last episode, we’ve had a ton of questions from clients in a variety of sectors regarding policies and orders and other government or non governmental actions in this area. So in our last episode, we thought we’d introduce the topic on a very high level. Today, Annie and I are going to focus in more on what types of legal challenges, and more specifically, Charter challenges we might see coming out of some of the mandatory vaccination orders or policies today.

Annie: Yeah, I’m super excited for today’s episode because I am a self described constitutional law geek. So you read about the Charter and constitutional law generally in law school but it’s not something that most people come across often in their legal practice. And certainly, the Charter’s not something that most people think about on a day to day basis. But this is something that we do and I’ve been lucky enough to work in my practice at Miller Thomson on a number of Charter cases and at any given time I have four or five Charter litigation files on my desk. And so I’m super grateful for this work and super excited for this episode. So, like I said, the Charter is not something that most people think about on a daily basis until, of course, you think your Charter rights might be infringed. Now, lately with public health restrictions, including mandatory vaccines, many people are, for the first time, thinking about their Charter rights. And that’s why we thought it could be helpful to do this podcast. And now, Tracey, you’re particularly well suited for this podcast, I think, because you’ve done quite a bit of Charter education, right?

Tracey: I have been lucky to do a lot of education in this area over a number of years. I’ve also been really fortunate to provide advice with respect to a lot of different Charter issues and I have been able to work on factums, et cetera, in the past, including one that went to the Supreme Court of Canada, which was a lot of fun and it is a really interesting area for those who have interests in the Charter.

But for those that perhaps maybe don’t always spend their time thinking about Charter issues on a regular basis, one of the important things I think, Annie, probably that we should start out by saying is talking briefly again about the application of the Charter. Because, of course, the Charter doesn’t apply to everybody. This is a part of our Constitution that protects certain fundamental rights and freedoms and we’re going to talk a little bit about those today.

But it really only applies to governments, whether that’s the federal or provincial government or officials acting under government legislation or orders or sometimes other – what the courts assign to be government actors. So, for example, health regulatory bodies would in certain things that they may undertake and that would include if they’re considering mandatory vaccination policies have to think about potential Charter implications. But if you’re a business, an individual out in society, you’re not subject to the application of the Charter. So we think about the Charter application only really with respect to government or who we might think of as government actors. And so with respect to mandatory vaccine legislation, orders or policies as a result of other government legislation or government actors, we absolutely have to be thinking of, as we give advice to clients, potential Charter challenges and what types of details should be in all orders or policies to try to withstand the many challenges that might be posed. On the other hand, if we’re acting for people that might want to poke, we might want to actually challenge something out of the Charter and looking at it through a different lens. But there’s certainly an important set of issues depending on the order or policy.

Annie: So, talking about the Charter, let’s dig into some of the rights that it protects. And so we identified in our previous episode a few of the sections of the Charter that we might see engaged by mandatory vaccines. So sections 2, 7 and 15. So let’s talk about each of those sections briefly in turn. Section 2, so what does this protect?

Tracey: Well there’s more than one thing you know, Annie, as you know, that we might see Charter challenges based on out of section 2. Section 2 protects freedom of conscience and freedom of religion. We haven’t seen a lot of case law in the freedom of conscience area, although we can talk about a bit more about that today. Definitely a lot more case law in the freedom of religion area where somebody has a very sincerely-held religious belief. So certain orders or policies if they don’t provide exemptions, for example, for people with strong, deeply-held religious beliefs may well be subject to a valid Charter challenge.

Another example, and we don’t have time to go through all of them today, of course, but another example out of section 2 is freedom of expression. A lot of the orders or policies we’re seeing require people to provide proof of vaccination. Well, to some extent, our Charter protecting right of freedom of expression, it doesn’t just allow us to express freely, it also protects, to some extent, the right not to, not to express certain things if we don’t want to.

We’ve got section 7 of the Charter, that protection of life, liberty and security of a person and we’ve got section 15, as you mentioned, which protects mandates that we should all be treated essentially equally under the law with some provisions attached to that and another one that, of course, might come into play, probably unlikely, but depending on the details of a particular order or policy is section 6 – mobility rights that we enjoy in Canada.

And then, of course, we’ve got the important section 1 of the Charter. So while we’ve got these protective rights and freedoms, they’re subject to limits. So even if somebody is able to establish that government or government action has breached one of our protective rights or freedoms, government might be able to make a case that it is demonstrably justifiable in a free and democratic society and that they prescribed it properly by law. That’s just a paraphrasing of the wording in section 1 and that allows within certain limitations to actually infringe our Charter protective rights and freedoms in some instances.

Annie: Okay, so that’s awesome. So we’ve talked a bit about some of the rights and freedoms that the Charter protects but you mentioned the limits. So the limit in section 1, which I think we should dig into a bit more, but there are other limits in the Charter and you talked about section 7. So I want to touch on this a little bit. So section 7 has two parts. It protects the right to life, liberty and security of the person but then the second part of section 7 says you have the right not to be deprived thereof except in accordance with the principles of fundamental justice. Now, this is an important limitation. The principles of fundamental justice have been developed by the judiciary over the years and now what we know as the principles of fundamental justice are that any laws that deprive someone of life, liberties or security of the person must not be arbitrary, overbroad or grossly disproportionate to the objective of the law.

So a really interesting section 7 case in recent years, for example, was the Carter case, which struck down the Criminal Code provision that made assisted suicide illegal. The Supreme Court found that the provision was overbroad in catching cases that fell outside of the object of the law and they struck it down and that’s why you’ll see that assisted suicide, or medical assistance in dying as we call it, is now legal in Canada. So this is one of the things that the court found that the Criminal Code was catching that it shouldn’t have.

So because section 7 has two parts, even if you establish that a law deprives you of life, liberty or security of the person, if it’s in accordance with the principles of fundamental justice, so not overbroad, arbitrary or grossly disproportionate, it won’t be considered to be a breach of section 7. So with mandatory vaccines, as we discussed in our last episode, these aren’t yet laws that force people to get vaccinated. They’re laws that say you need to get vaccinated or there’ll be consequences. So some of these consequences may be considered to deprive someone of life, liberty or security of the person but if they’re not overbroad, grossly disproportionate or arbitrary, then it won’t be considered to be a breach of section 7. So that’s just section 7 which has the inherent limit, but I think we should also talk a little bit about section 1 which is a big limitation in the Charter. So Tracey, do you want to discuss section 1 a little bit?

Tracey: So as we talked about, there are “guaranteed” rights and freedoms under the Charter, quote-unquote guaranteed but if somebody establishes that their freedom of religion, for example, or their security of their person has been infringed by a government order, legislation, action taken by a government actor and the Charter’s applicable, government at that point still gets to introduce evidence or that government actor gets to try to introduce evidence to justify that breach of a Charter freedom or a Charter right. And what are the four things that they’re going to have to demonstrate to the court?

Well, the first thing that they’re going to have to demonstrate to the court is that they had a pressing and substantial objective or aim with implementing their policy. And I think, in a number of instances in the current context, that’s probably going to be a pretty easy hurdle to establish. We were implementing this order, we were implementing this aim because of evidence of, for example, rising admissions into hospitals and ICUs, et cetera, and we think this is a necessary step to try to reduce the burden of this disease in our society. So I’m not saying I’m right about that but I think that first step in this four part step under section 1 of our Charter would probably be a fairly easy one to establish and introduce evidence on.

But the second thing that’s going to have to be established is that there was a rational connection between the aim, in this case, of reducing the spread of COVID, reducing the burden of disease as a result of the spread of COVID and the actual restriction imposed. So can you show that rational connection between your order, between your policy and your steps taken and your aim? And again, probably that’s going to be based on the right evidence being introduced in our current context, probably not a really difficult hurdle for a government or a government actor.

Then we get into steps three and four and this is where it might be a little more challenging, depending on the legislation or order or policy and the circumstances in a particular case. The government or government actor would have to introduce evidence that there has been minimal impairment of rights. So have they taken other steps, for example, before they took this step in terms of trying other things, considering other options, what other things have they done and have they actually taken steps that would make their aims, meet their objectives but as minimally as possible? Now that’s not, sometimes we hear the language used in other legal context, the least intrusive means. It’s not identical to that. It doesn’t have to be the absolute least infringement you possibly could’ve imposed but there has to be some consideration of was there minimal impairment? Did they rely on public health advice and evidence from other jurisdictions? Those are some of the pieces of evidence we might see introduced to try to demonstrate minimal impairment if challenged on this basis.

And then the fourth thing, the fourth part of that test is – is there proportionality between the restriction and the benefit? So this is similar to but a little bit different than that third part of the test. It’s going to be a little bit of balancing about the restrictions imposed and the aims and a look at the evidence to see whether there was an appropriate balancing of those things in terms of other restrictions and the effects that the government is aiming for.

Annie: Awesome! So that is the Charter in 10 minutes! So that concludes our episode on mandatory vaccines and the Charter but this is something that I expect we’ll continue to hear a lot about in the coming weeks and months. And to all our listeners if you have questions about these issues, we would definitely invite you to get into touch and we’d be happy to chat with you.

Tracey: Yeah, thanks and stay tuned for our next one. We’re going to focus on issues around collective bargaining and employment and some occupational health and safety issues related to COVID, mandatory vaccination orders or policies.

Annie: Bye for now!


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