By: Arvin Aghdam
Are Vaccine Passports in violation of Canadians’ Rights & Freedoms?
In short, not exactly. During the last two years, many have been negatively affected by the Coronavirus, and more recently, during the federal election, one of the most important topics discussed was vaccine mandates. One of the most significant concerns regarding vaccines for many healthcare and working-class members was and still is vaccine passports.
Each month more and more provinces are starting to implement a vaccine mandate. Citizens will have to provide vaccination proof to participate in significant social activities such as going to restaurants, parties, and other significant social gatherings. With this new mandate came frustration and opposition. Hesitant Canadians who oppose the idea of mandatory vaccine passports believe that their rights and freedoms are in jeopardy. Meanwhile, many also believe that this is simply a healthcare measure put in place to prevent a more devastating wave of COVID-19, especially with the arrival of the variants.
Perhaps one of the most common platforms for discourse and argument is the fact that many believe the vaccine passports violate Section 7 of the Canadian Charter of Rights and Freedoms, which states: “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.” However, according to constitutional law experts, the claims being made are not technically true. Essentially, law experts say that while the vaccine passport may conflict with the Charter, they are not taken into account based on the specific case. Instead, people are using it as a generalization to boost their claim. Thus, it does not necessarily make it illegal. With this in mind, two experts gathered by CTV news provided legal insight into the case. Firstly, both experts agree that anyone can challenge this law; however, doing so successfully is another endeavour itself and is doubtful. The first expert, Cheryl Milne, executive director of the David Asper Centre for Constitutional Rights, stated that even if people were to oppose the mandatory vaccine passport, there are very few cases in which they can argue that they are unable to due to extenuating circumstances. For example, Section 2, which is related to freedom of religion and expression, and Section 15, which covers equality for those who are disabled, would only be under these minute circumstances in which one can confidently debate the public health measures in place.
The Other side of the coin: Vaccines are not forced
Milne also points out that many seem to confuse vaccine passports for mandatory vaccinations. If someone is not willing to provide proof of vaccination, it simply means they cannot enter a particular property, i.e., a restaurant. Milne stated, “There are some people who think that vaccine passports and the use of the word ‘mandate’ mean that we’re holding people down and forcing them to be vaccinated.” Milne elaborated that the vaccine passports aren’t “physically holding people down and giving them a vaccine,” which would make it a clear charter of rights and freedoms breach. Instead, people are given a choice; however, they should also be prepared to accept the consequences of their actions and choices. For example, a restaurant owner has every right to refuse services to customers if they are unwilling to wear a mask indoors. Those who decline are also given different choices to choose from. For example, students can instead enroll in VSS (Virtual Secondary School) or eLearning courses to limit their day-to-day interactions with their peers.Samuel.E. Trosow, associate professor at the University of Western, also went on to say that while someone can challenge the law, they would also have to prove that the violation of the Charter as a result of a mandate was “arbitrary, overly broad or grossly disproportionate.” Another central point brought up was that the mandates are there to protect the general public and thus can be used as a counterargument to display the strengths of the mandates, which protect and reduce community transmission.
Everything has to have a limit.
According to Milne, if someone challenged a violation within Section 7, Section 1 of the Charter can counter the plea. “Section 1 of the charter says ‘all of the rights and freedoms in the charter are subject to such reasonable limits as can be demonstrably justified in a free and democratic society.” In short, this means that our government can limit people’s rights to a certain extent given a good enough reason to. However, they can only do so as long as they have as minimal an effect on the law as possible.
Bogart, Nicole. “Do Vaccine Mandates Violate Canadians’ Charter Rights?”Coronavirus, CTV News, 1 Sept. 2021, https://www.ctvnews.ca/health/coronavirus/do-vaccine-mandates-violate-canadians-charter-rights-1.5569971
“19 Vaccines for Ontario.” COVID, https://covid-19.ontario.ca/covid-19-vaccines-ontario.