Canadian judges have not struck down vaccine mandates as have their U.S. counterparts, a contrast that highlights differences between the two countries’ constitutions, their interpretation by judges, and the speed with which judges reach decisions.
American judges have blocked vaccine mandates under the Biden administration on several occasions. Mandates that have been declared unconstitutional in recent months include those for federally funded health-care workers, federal contractors and subcontractors, and teachers in the Head Start early education program.
In Canada, meanwhile, vaccine mandates continue to be in place for federal employees, as does a ban on unvaccinated travellers from Canadian flights—a restriction found nowhere else in the developed world.
Queen’s University law professor Bruce Pardy says that law and politics work differently south of the border.
“The legal and political cultures in the two countries and the way the documents are constructed is different. So for example, in the Canadian charter, Section 1 explicitly allows for the infringement of the rights if the government can justify that infringement has a reasonable limit,” Pardy said in an interview.
“It’s very important. It’s the first section of the charter, and it really does set the agenda.”
Section 1 says, “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Pardy says the U.S. Bill of Rights does not have an equivalent.
“That doesn’t mean the rights in the U.S. Bill of Rights are absolute, because rights are never absolute, but the existence of Section 1, I think, is actually a signal to Canadian courts that infringement of these liberty rights is more explicit in the Canadian context,” he says.
Former Newfoundland premier Brian Peckford, who helped craft and negotiate the Constitution in 1981, said the primary intended setting for Section 1 overrides was laid out in Section 4: a “time of real or apprehended war, invasion or insurrection.”
“That’s what we intended in Section 1. At the time, we never put it [in] because we thought it was self-evident,” Peckford said in an interview.
Peckford said he believes the charter phrases “reasonable limits,” “prescribed by law,” “demonstrably justified,” and “free and democratic society” each carries obligations that have never been met in the implementation of the vaccine mandates, masking and social distancing requirements, and travel bans during the pandemic.
“None of the governments of Canada … met these four tests. And … they have not provided any study or report like a cost-benefit analysis to show that they could demonstrably justify [these were] reasonable limits.”
“The courts of appeal have not heard most or almost any of the cases as it relates to the charter on the pandemic. Whilst I’m not overly optimistic, we’ve got to see that process through,” he said.
Peckford launched a lawsuit on Jan. 26 against flight bans for the unvaccinated, and he cautiously hopes a judge will agree that the Constitution is on his side.
“I don’t know, the courts have changed a lot and they’re far more political than they were in 1981. And I could be wrong, but until I’m proven wrong, I’m not wrong,” he said.
Different Interpretations
Pardy says a “living tree doctrine” dominates the Canadian approach to constitutional interpretation as opposed to an originalist approach, which more closely adheres to the intentions of the constitution’s authors at the time it was written.It’s a fairer fight south of the border, he said.
“They have the same kind of ongoing battle, but it’s more of a back and forth because they actually have more of a split in the judiciary than we do. Basically it comes down to originalism [versus] a more expansive, creative version of things that allows a court to consider the social policy implications of what they’re doing.”
Peckford agrees that the originalist view is hard to find in Canadian law schools, and his take on Section 1 is new for many lawyers he speaks with.
“Once I explain it to them and they understand it from my side, [they] appreciate it and say, ‘Yeah, you’ve really got a good point.’ It is an uphill battle, because there’s so many people over 40 years that have indeed been imbued with a view of the Constitution which is, in my view, not really valid,” he said.
“In the United States, you have a significant number of very vocal congressmen and senators who were lawyers and who took the more originalist view,” he adds.
No Special Protection for Vaccine Status
Pardy believes the pandemic has brought about a role reversal in Canada. The political left, who normally insists on minority protections against perceived government oppression, wants no exceptions for the unvaccinated. By contrast, conservatives who normally chafe at intervening judges now want them to block government mandates.“The charter reads to me as though it was intended to be a roster of (classical) liberal freedoms whose intent was to keep the government from interfering in your life,” Pardy said in an email. “But what has gradually happened over time is that the Supreme Court has reframed it as a progressive document that mandates or justifies collective action, especially with respect to Section 15.”
Section 15 bans discrimination on the basis of sex, race, or religion, but in 1995, the Supreme Court added sexual orientation as an analogous ground for protection. Pardy said those who are unvaccinated are being denied services and subjected to ridicule, but he doubts judges will ever designate them as a protected group.
“I can see the comparison and I’m sympathetic to it. There’s no question that what has happened during these periods is vilification and clear discrimination against that group of people,” he said.
“Whether or not that means that the unvaccinated are an analogous group to the groups listed in Section 15 is a much more difficult question. Probably the case is not very strong.”
