Canadian colleges and universities can mandate COVID-19 vaccination without violating Charter rights
by Samuel E. Trosow, Associate Professor, Faculty of Law and Faculty of Information & Media Studies, Western University; and Julie Lowe, Research Assistant, Faculty of Law, Western University
It’s imperative that Canada’s colleges and universities act quickly to adopt campus vaccination policies that are clear, fair and enforceable.
One reason for this hesitancy is the worry that a mandatory vaccination requirement might violate Section 7 of the Canadian Charter of Rights and Freedoms:
“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.”
Some universities and colleges are concerned that a student or staff member might use Section 7 to challenge a vaccine mandate. Would Canadian courts uphold vaccine mandates in the face of a Section 7 challenge? As legal scholars and educators, we believe the answer is a resounding “Yes!”
Vaccine mandates are not forced vaccinations
Would-be claimants alleging that vaccine mandates violate Section 7 face multiple hurdles to prove their case. The first obstacle is establishing an infringement of a protected interest in “life, liberty or security of the person.”
Two leading cases have looked at the role of individual autonomy in medical decisions: A.C. vs. Manitoba (Director of Child and Family Services) and B. (R.) vs. Children’s Aid Society of Metropolitan Toronto. Based on these decisions, forced vaccinations would violate the rights to liberty and security of the person.
But campus mandates are not forced vaccinations. Mandates offer choices: receive or decline the vaccine. Employees who decline must be reassigned to off-campus work or take a leave of absence. Students who decline must enrol in online classes or take the semester off.
These options may be inconvenient and unappealing to some, but as a recent U.S. decision denying an injunction against a vaccine mandate stated: “This hard choice doesn’t amount to coercion.” In short, nobody is forced to undergo a medical procedure against their wishes.
The second hurdle is establishing that a campus vaccine mandate is inconsistent with principles of fundamental justice. In other words, the mandate is arbitrary, overly broad or grossly disproportionate.
A measure is arbitrary if it cannot fulfil its objectives. Mandates seek to protect the health and safety of the campus community. There is a clear nexus between this objective and the vaccination requirement.
The prohibition against being overly broad asks if the measure goes too far by covering situations unrelated to its purposes. An overly broad mandate would sweep a wide range of people and activities into its net, like online students and alumni. But the mandates under consideration are limited to those physically attending classes and meetings, and doing research and other activities on campus.
Gross disproportionality examines whether the measure is disproportionate to the institution’s interest in ensuring campus health and safety. While claimants might argue that requiring individuals to abide by other precautions, such as masking, testing and distancing is sufficient, there is strong evidence that vaccines can reduce transmission, in cases where lockdowns, masking, social distancing and testing cannot.
Campus vaccine mandates are neither arbitrary, overly broad nor disproportionate. And granting exemptions for individuals with legitimate religious and medical objections reinforces those mandates’ consistency with the principles of fundamental justice.
A free and democratic society
A claimant’s third hurdle is that even if a claimant establishes a violation of Section 7, this violation can be upheld under Section 1 of the Charter:
“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.”
A claim of justification under Section 1 must pass all four prongs of the “Oakes test.” This leading case established how courts should go about resolving issues under Section 1 of the Charter.
The first prong requires the measure — in this case, the vaccine mandate — to be based on a pressing and substantial objective. This is easily met given we’re now in the fourth wave of the pandemic.
In the recent case Beaudoin vs. British Columbia involving public health orders that limited gatherings for religious services, public health was considered a pressing and substantial objective. Another case, Taylor vs. Newfoundland and Labrador, involved a woman who was denied entry to Newfoundland in May 2020 for her mother’s funeral in order to protect people from illness and death from the importation and spread of COVID-19. The court ruled that this constituted a pressing and substantial objective.
The second prong requires a rational connection between the challenged measure and its objective. This is satisfied when scientific evidence regarding the benefits of immunization supports the mandate. Judges in these other cases have accepted COVID-19 modelling and scientific evidence showing that gatherings are routes of transmission for SARS-CoV-2, the virus that causes COVID-19.
The third prong requires that the measure impairs the protected right as little as possible. Travel restrictions to Newfoundland met this test because of exemptions and because some visitors evaded self-isolation. So did restrictions on religious services, where the health officer made exemptions and avoided restrictions until there was evidence of an exponential increase in cases.
Similarly, a vaccine mandate will meet this prong where it includes human rights exemptions and where less intrusive measures are insufficient to control transmission.
The final prong considers overall proportionality, comparing the negative effects with the positive value of the objectives. Asking whether the infringement is “too high a price to pay for the benefit of the law,” it considers “the proportionality between the deleterious and salutary effects of the measures.”
In a campus setting, regardless of whether students or staff are personally concerned about catching COVID-19, they may spread the disease to others, and the now-dominant Delta variant is highly contagious, placing individuals at risk of hospitalization and death.
Action is imperative
In the unlikely event a court finds vaccine mandates violate Section 7, Section 1 would nonetheless justify an evidence-based mandate with reasonable exemptions. Put simply, the case for campus vaccine mandates is compelling, and this conclusion is bolstered by recommendations from the Ontario Council of Medical Officers of Health.
It’s imperative that Canada’s colleges and universities act quickly to adopt campus vaccination policies that are clear, fair and enforceable. Along with masking, social distancing and classroom occupancy limits, vaccine mandates would allow us to return to the traditional campus environment where teachers and students can interact, if not face-to-face, at least mask-to-mask.