Skip navigation
In my opinion

Canadian colleges and universities can mandate COVID-19 vaccination without violating Charter rights

Campus mandates are not forced vaccinations. Mandates offer choices: receive or decline the vaccine.

BY SAMUEL E. TROSOW & JULIE LOWE | SEP 10 2021

It’s time for all Canadian colleges and universities to adopt mandatory vaccination policies. Many schools here and in the United States have already taken this step, yet others remain reluctant.

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.

Fundamental justice

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.

Samuel E. Trosow is an associate professor in the faculty of law and faculty of information & media studies, Western University and Julie Lowe is a research assistant in the faculty of law at Western University. This article is republished from The Conversation under a Creative Commons license. Read the original article.

COMMENTS
Post a comment
University Affairs moderates all comments according to the following guidelines. If approved, comments generally appear within one business day. We may republish particularly insightful remarks in our print edition or elsewhere.

Leave a Reply to Jamboo Cancel reply

Your email address will not be published. Required fields are marked *

  1. Naglaa / September 10, 2021 at 08:17

    all these is based on a Wrong conclusions about the marked benefits from the vaccine in relation to no risk from taking it for these group of young adults.
    But looking to recent data from Israel which was first in reaching high level of vaccination will show you:
    First: the vaccine now is almost not preventing any transmission of infection, and this is why they are taking 3rd shot and may be 4th soon
    Second: the vaccine also did not prevent hospitalization for those doubly vaccinated
    So till now it could protect only decrease chances of severe illness (which is valid only on a personal level) not society level.
    And only it is a matter of little time and Canada statistics will get the same result with vaccine losing its effects.
    Third: most of the serious side effects of the vaccine happen in young population who has very little risk if they get infected.you can check in recent researches.
    So the problem is not legal, it is mainly from adapting false believes that is not updated by the data around us. And if we now have delta variant who knows what variant we will have after a month.
    From my personal view these mass vaccinations will help the development of more resistant and serious variants exactly as what happens with the massive use of antibiotics.
    The vaccine only help if we will reach herd immunity which is impossible with rapidly changing virus and with other people in the world not getting mass vaccination in the same time before other variants appear.

    • Frances Sharom / September 21, 2021 at 09:49

      Israel is not Canada. The following link is to an article that carries out age stratification analysis on real covid data from Alberta. It clearly shows the protection offered by the vaccines to both transmission and severe illness/death in all age-groups. Rubella does not kill significant numbers of children in Canada, but most jurisdictions insist on vaccination because it protects others in society, i.e. pregnant women and their fetuses. The covid vaccine is no different.
      https://www.cbc.ca/news/canada/calgary/alberta-severe-outcomes-covid-vaccination-1.6178449

  2. Jamboo / September 12, 2021 at 18:00

    Regardless of its actual legality, it is hopefully obvious to anyone with a conscience that even though the vaccines appear to be highly effective and very safe, it is *immoral* to strongarm someone into being injected with something they don’t want to be injected with, especially when it cannot be shown that there is a major benefit to the community.

    There is no reason for a vaccine mandate on campuses. According to an Imperial College London study, the COVID infection fatality rate is about 1.15% over all age groups, but it is 0.23% for those who are not elderly (i.e., the overwhelming majority of people on campus). That means that it is only about twice as deadly as influenza for almost everyone who is on a college campus. Individuals in this age range also generally have approximately a 2-4% hospitalization rate. The vaccines are about 90% effective at preventing serious illness and death, so you can divide those percentages by 10 to get the post-vaccination hospitalization and fatality rates.

    So the vaccinated on campus are already highly protected (~3 in 1000 chance of hospitalization and ~2 in 10000 chance of death for a typical vaccinated individual on campus). The unvaccinated have chosen to take their chances with the virus rather than get vaccinated, and that’s their business. Their body; their choice. In any case, their getting vaccinated would provide little benefit to others who are already vaccinated: the delta variant is so contagious that the vaccinated can also contract and spread it.

    Further, a vaccine mandate is anti-scientific and discriminatory. While the authors of this article have been labouring away from the comfort and safety of their homes, many of their students have been working service jobs that have already exposed them to the virus. Recent studies from Israel show that natural immunity from prior SARS-CoV-2 exposure is many times stronger than immunity from a vaccine. Therefore, a vaccine mandate discriminates against poorer individuals who are more likely to have obtained immunity “the hard way” by contracting COVID in order to benefit the wealthy who still lack immunity. Why force these people to get vaccinated if they don’t want to be? And why waste the vaccines when people in the developing world are still *literally* dying for vaccines?

    These kinds of coercive measures that prevent people from engaging in public life until they bend their knee to the desires of The Anointed in academia weaken trust in public health. Stop trying to strongarm people into getting injected with something they have chosen not to be injected with. You’re just polarizing the issue, dividing the country, and increasing distrust of public health measures.

  3. Bob / September 15, 2021 at 15:15

    Congratulations to University Affairs for managing to find lawyers who think vaccine mandates don’t violate Charter rights and producing a very one-sided article. I can find you lawyers who think they do. Depending on what exactly “mandating” means, it may be equivalent to forcing. When someone is supporting a family and can’t easily find another job (for whatever reason), unpaid leave is basically force. The views of the lawyers in this article make a mockery of Canada’s Charter.

  4. Prof Alan Manson , Institute of Space and Atmospheric Studies, USask / September 17, 2021 at 13:46

    This has been extremely useful … not for myself, as anyone having the pleasure and duties of being a Professor for 46 years and now Emeritus for 12 yr, has demonstrated the qualities that would have already led to acceptance of two of the best vaccines, as soon as possible for themselves and others, close in family or any stranger nearby.
    Given the emphasis on Health and Wellness at UofS, a set of reasons, so described, for 20% of North Americans diligently avoiding such Vaccines, their most often used “reasons or excuses” e.g. obstinate, stupidity, psychological ‘issues’, legitimate i.e. physician’s letter with justification e.g. fear of needles, in general? and others not thought of. Given that students have already had ‘shots’ for measles, polio– etc. , such phobia on COVID is increasingly inexplicable. So please have our ‘scientists of the mind’ produce this for we faculty members/professors.

    Sincerely, Alan Manson PhD, Professor Emeritus, Professor of Space and Physics/Atmospheric and Space Science (ISAS)

  5. Christine Silversides, General Counsel, York University / September 22, 2021 at 15:01

    The Courts in most provinces (with the exception recently of Alberta) have stated that the Charter of Rights and Freedoms does not apply to universities. Universities are not public actors. The autonomy of universities from government has been most recently upheld by the Ontario Divisional Court in the Student Choice Initiative case heard by the Ontario Court of Appeal in March of this year. Therefore, in the view of most university lawyers, one need not discuss the Charter.. At the very least, the case in favour of university mandatory vaccinations is much stronger. Should you wish the case citations, please feel free to write.