canada constitutional-law discrimination
What is the legality of the vaccine mandates in British Columbia, Canada?
<p>British Columbia unveiled <a href="https://www2.gov.bc.ca/vaccinecard.html" rel="noreferrer">a plan</a> to require proof of COVID-19 vaccination for entry into multiple settings, including but not limited to restaurants, bars, gyms, night clubs, indoor ticketed events, and on-campus student housing. The requirement for a single dose will go into effect on September 13, 2021, and by October 24, 2021, will be extended to require two doses.</p>
<p>The province has confirmed that apart from young children, <strong><a href="https://www.vancouverisawesome.com/coronavirus-covid-19-local-news/the-short-answer-is-no-dr-bonnie-henry-says-no-exemptions-to-vaccine-passport-order-4247003" rel="noreferrer">there will be no exceptions to this mandate.</a></strong> This includes people who for medical reasons cannot be safely vaccinated, or people avoiding it for religious purposes. While there aren't as many valid medical reasons for avoiding the COVID-19 vaccine as some might try to argue, they do exist, albeit rarely.</p>
<p><a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art15.html" rel="noreferrer">Section 15 - Equality Rights</a> of the Canadian Charter of Rights and Freedoms states the following:</p>
<blockquote>
<p>(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.</p>
</blockquote>
<p>Similarly, section 1 (b) of the <a href="https://laws-lois.justice.gc.ca/eng/acts/c-12.3/page-1.html" rel="noreferrer">Canadian Bill of Rights</a> states a similar rule.</p>
<p>Given this, how is the government legally able to enforce the mandate in its current form? If people do exist who cannot receive the vaccine due to a physical disability such as life-threatening allergies, is the refusal to accept these exceptions unconstitutional? While I would imagine a religious reason for avoiding a vaccine would be hard to argue in court, would the same principal still apply?</p>

<p>No rights are absolute. In particular, <a href="https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#Guarantee_of_Rights_and_Freedoms__2358" rel="noreferrer"><em>Charter</em> s. 1</a> specifies rights are &quot;subject only to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.&quot;</p>
<p>Generally speaking, when rights are infringed the courts will consider it a justifiable infringement if it serves a substantial purpose while proportionate, rational and minimally infringing (<a href="https://en.wikipedia.org/wiki/Section_1_of_the_Canadian_Charter_of_Rights_and_Freedoms#Oakes_test" rel="noreferrer"><em>Oakes</em> test</a>, though there's a heap of subsequent case law refining the test).</p>
<p>While the exact order text isn't yet available, determining constitutionality would typically be a detailed analysis a judge would have to perform after hearing arguments from parties to a case (I assume the order will eventually be published <a href="https://www2.gov.bc.ca/gov/content/health/about-bc-s-health-care-system/office-of-the-provincial-health-officer/current-health-topics/covid-19-novel-coronavirus#orders" rel="noreferrer">here</a>).</p>
<p>In my own opinion, I would imagine such an order without appropriate medical exemption would be unconstitutional. It would seem to be disproportionate to deny freedom of movement to a presumably very small number of persons who could do little to remedy their medical condition. As a similar example from another province, a Quebec court ruled that a Covid-19 curfew requiring people to remain inside at night <a href="https://www.cbc.ca/news/canada/montreal/quebec-court-ruling-homeless-curfew-1.5889075" rel="noreferrer">would not apply to homeless people</a> due to discriminatory and disproportionate effect.</p>
<p>Assuming the order to be similar in nature to existing BC orders on gatherings and mask-wearing, I would imagine lack of religious exceptions to be constitutional, as those orders have <a href="https://canlii.ca/t/jdt3v" rel="noreferrer">already been challenged and upheld</a> against religious objections (though I believe appeals are still possible). The nature of the identified infringements against religious groups was considered reasonably proportionate, rational and minimal enough when weighed against the legitimate governmental need to contain the spread of Covid-19.</p>
<p><em>P.S. The Canadian Bill of Rights has in practice been largely superseded by the</em> Charter. <em>Furthermore, it is completely inapplicable here as it is a federal statute with no effect on provincial matters.</em></p>

<p>As no draft decision/law on this has seemingly been published, we only have press coverage to go by, but <a href="https://bc.ctvnews.ca/b-c-opens-door-for-medical-exemptions-to-vaccine-card-in-extremely-rare-cases-1.5578580" rel="noreferrer">a more recent one</a> is that...</p>
<blockquote>
<p>B.C. has now indicated medical exemptions to the incoming vaccine card requirement may be allowed, but only in “extremely rare” cases. [...]</p>
<p>When the measure was first announced last month, provincial health officer Dr. Bonnie Henry said there would not be exemptions for people who are not able to get immunized for medical reasons. [...]</p>
<p>In an email to CTV, the Ministry of Health indicated the province now seems to be opening the door to some exceptions. [...]</p>
<p>“There will be an exemption process in place for extremely rare circumstances, involving a person’s doctor and the Office of the Provincial Health Officer,” the ministry said. “However, these instances will be extremely rare.”</p>
</blockquote>
<p>This is actually not unlike what happened in France, there was widespread furore in the press, but the draft law had such a provision...</p>
