Mandatory Vaccination in Canada Would Face Legal Challenges

The federal government has bought millions of doses of COVID-19 vaccines but hasn’t definitively stated whether or not vaccination will be mandatory. Constitutional experts say any such legislation would violate personal rights and get challenged in court.

On Aug. 5, Minister of Public Services and Procurement Anita Anand announced procurement agreements for COVID-19 vaccines. One was with Pfizer Canada working with BioNTech in Germany, and a separate agreement was reached with U.S.-based Moderna. Anand said the move is part of “our aggressive approach to secure vaccine candidates now.”

The minister said at a press conference that a vaccine “would likely not be mandatory,” but a decision would be guided by public health authorities and an independent vaccine task force.

Innovation Minister Navdeep Bains also didn’t rule it out.

“With regards to making it mandatory/keeping it voluntary, that’s something that we’ll closely work with Dr. Tam and Minister Hajdu on, to determine when we get to that stage how to proceed,” he said in response to a question.

James Kitchen, a lawyer with the Justice Centre for Constitutional Freedoms, told The Epoch Times that health is a provincial jurisdiction, not federal, and that’s only one constitutional hurdle that legislation making the vaccine mandatory would face.

“Section 7 [of the Constitution] protects life, liberty, and security of the person. So wrapped up with liberty are things like bodily autonomy, personal autonomy, medical decisions, right? So you’d be implicating that.”

An Angus Reid poll released Aug. 4 shows 46 percent of Canadians would get a COVID-19 vaccine as soon as it becomes available. Thirty-two percent said they would wait a while, with safety concerns being the reason for most who would delay. Fourteen percent said they would never get a COVID-19 vaccination.

The worry among most of those who said they would wait was possible side effects from a new and potentially quickly developed vaccine.

Kitchen says mandatory vaccination also threatens guaranteed freedoms of religion and conscience since many “would object to a foreign substance being injected into their bodies regardless of the contents. And then there’s religious objections based on the contents because some vaccines are either made, or the process of making them, involves aborted fetal cell tissues.”

Archbishop of Winnipeg Richard Gagnon and 17 co-authors drew attention to this aspect in a May 21 letter to Prime Minister Justin Trudeau.

“COVID-19 vaccine candidates that are ethically unacceptable are produced using human cell lines such as PER.C6 and HEK 293, derived from elective abortions,” the letter stated. “The subsequent manufacture of vaccines using such ethically-tainted human cell lines demonstrates profound disrespect for the dignity of the human person.”

Rocco Galati, the founder and executive director of the Constitutional Rights Centre and an expert in constitutional law, says the principle of habeus corpus, or bodily integrity, was fundamental even prior to the Constitution. He says the Ontario Court of Appeal has already ruled that people committed to psychiatric care without consent still have the right to refuse drugs while in care. In practice, however, those committed involuntarily in many cases are also often given medication involuntarily.

“The Supreme Court of Canada and other appellant court jurisdiction in Canada is quite clear: You cannot be forced to take any medical treatment without informed voluntary consent,” Galati told the Epoch Times.

“I’m not delusional about the courts, but let’s put it this way. It’s one thing to say that the courts may dishonestly not uphold the rights. It’s another thing to say the rights aren’t there. So if you’re asking me is it constitutional to impose mandatory vaccines, my answer is no.”

Last fall, New Brunswick introduced Bill 11 to ban unvaccinated students from school. To prevent legal challenges, the bill used the “notwithstanding clause” from Section 33 of the Constitution. Wide criticism led to that provision being removed. Even so, the bill was defeated in a 22-20 in a free vote on June 18.

Kerri Froc, assistant professor of law at the University of New Brunswick, wrote a column for the Canadian Bar Association opposing the province’s pre-emptive use of the clause. She believed the bill would pass legal challenges “as it is based on solid public policy, to which courts will give deference. More likely than not, they would uphold it.”

Section 1 of the Charter 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.”

In an email to the Epoch Times, Froc wrote, “There is not much case law on s.7 violations that have been justified under s.1. But in cases of emergencies (e.g. to prevent threats to national security), the Supreme Court has accepted that limitations on s.7 rights are possible.”

Kitchen says a court challenge to federally mandated vaccinations would likely involve both sides drawing on expert testimony to argue whether the safety, efficacy, and necessity of a vaccine could justify overruling personal rights.

“I can’t predict which way the courts are going to go. It’s a tough haul for people who are going to challenge the government because a lot of courts and a lot of judges do tend to defer a lot to governments in Canada. A lot of rights violations are justified under Section 1 because the government is able to convince the court that they’re right and the individual is wrong.”

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