Expect Court Challenges to Vaccine Passports, Say Legal Experts

A woman looks at the Quebec government’s new vaccine passport, called VaxiCode, on a phone in Montreal on Aug. 25, 2021. (The Canadian Press/Graham Hughes)

The adoption of vaccine passports by three Canadian provinces, the federal government, and many universities is bound to face legal challenges, say experts, forcing courts to weigh whether requiring vaccination under such circumstances is a justifiable curtailment of constitutional rights and liberties.

British Columbia announced on Aug. 23 that those aged 12 and above will require proof of vaccination starting Sept. 13 at places like restaurants, recreational facilities, casinos, and indoor organized gatherings such as ticketed sporting events, weddings, and conferences. Quebec’s mandatory vaccination passport for essential services will come into effect on Sept. 1, while Manitoba is requiring all provincial employees who work with vulnerable populations to be fully immunized by Oct. 31 or undergo regular testing.

If re-elected on Sept. 20, the federal Liberals will make vaccination mandatory for all federal public service employees as early as the end of September, as well as for employees and passengers in federally regulated air, rail, and marine transportation sectors, including travel on cruise ships, by the end of October.

Lisa Bildy, interim president of the Justice Centre for Constitutional Freedoms, told The Epoch Times that such measures infringe on Canadians’ constitutional rights.

“The Charter rights that are infringed by coercive vaccine mandates are s. 7 (liberty and security of the person) and 2(a) (freedom of conscience and religion),” Bildy said by email.

“There may also be arguments under s. 8 (privacy rights) and section 15 (equality rights) to make. Whether these violations of Canadians’ constitutional protections for their bodily autonomy and conscience rights will be upheld under Section 1 of the Charter remains to be seen.”

Section 1 says the Charter “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.” Lorian Hardcastle, an associate professor of law at the University of Calgary, said this means governmental responses must both prevent harm and not unduly cause it.

“The harm that the government is trying to avoid is always on one side of that proportionality equation, and then the measures they take are on the other,” Hardcastle said in an interview.

“A court might be more likely to uphold a vaccine mandate that is time-limited or is linked to achieving particular benchmarks because, of course, courts don’t like complete limits on rights or absolute limits on rights. They prefer more carefully tailored plans.”

The B.C. vaccine requirement is in effect until Jan. 31, 2022, but could be extended. Other provinces could impose mandates similar to those set by B.C., Quebec, and Manitoba, and Hardcastle says each province that follows suit bolsters the chances the courts will allow all of them to continue.

“The more governments that have done this, the more widespread this is, the more it starts to look like a proportionate response. And those kinds of interprovincial comparisons are pretty common in that Section 1 analysis,” she said.

‘Illogical and Very Likely Unconstitutional’

Bildy said the onus is on governments to “prove that these mandates are demonstrably justified based on credible evidence about the efficacy of the vaccines and the actual risks posed by COVID-19.” However, she added that the nature of governments’ “blanket mandates” suggest other problems in justifying the appropriateness of their response.

“[T]hey are overbroad because they capture everyone: regardless of whether they are front-line workers with vulnerable people or bank employees sitting alone in a vault, regardless of their risk profiles (the working-age population and younger have dramatically lower risk from COVID than the elderly), and regardless of whether someone already has robust immunity from a prior infection,” she said.

“As a blanket mandate issued by a government, they are illogical and very likely unconstitutional.”

Bildy notes that it’s becoming evident the vaccines don’t stop transmission of the virus, and a better approach would be to use them “as a therapeutic for those who are vulnerable or elderly, to keep them safer from severe outcomes.”

“If they do not stop transmission, then vaccine passports serve no rational connection to their stated purpose other than the punitive targeting of those who, for whatever reason, have chosen not to take the vaccine,” she said.

“They will [also] serve to further divide an already polarized society and lead to increased hostilities that could bubble over into actual conflict if we’re not careful.”

University Vaccination Mandates

The Justice Centre launched a Campus Vaccine Index page on its website to give advice on vaccination requirements at Canada’s 61 publicly funded universities.

Some campuses in Nova Scotia, Ontario, and Saskatchewan are requiring vaccination. The B.C. mandate requires that post-secondary students be vaccinated to access on-campus housing.

In an email on June 18, Seneca College in Toronto notified students and employees that it will be making vaccination a requirement to come on campus for the fall term. On behalf of two female students who cannot finish their courses online and must do so on campus, the Justice Centre advised Seneca in a letter that it would launch legal action if the school doesn’t lift the vaccine requirement for the two students. The centre did so on Aug. 24 after receiving no response from Seneca.

“The use of coercive and intimidating tactics in threatening to destroy students’ education and career prospects if they do not submit and receive the new COVID-19 vaccine is unethical and unlawful,” Justice Centre staff lawyer Allison Pejovic said in a press release.

“We will fiercely defend these women and their right to bodily integrity and the freedom to choose what medical treatment they undertake, without the fear of being denied their education. In a free country, individuals are entitled to choose what they inject into their own bodies.”

The Justice Centre says its position is that mandating vaccination “under most circumstances violates [Canadians’] right to bodily autonomy and other Charter-protected rights to freedom of conscience and religion, mobility rights, and the right to liberty, and security of the person.”