Canada

Josh Dehaas: Mandating vaccines in schools is likely unconstitutional

For parents worried that their kids will be excluded from school if they don’t choose to get them vaccinated, the Charter of Rights and Freedoms is likely to offer some protection

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COVID-19 vaccines for kids ages five to 11 weren’t even approved before the debate began over making them mandatory in order to attend school. According to a Leger/Postmedia poll , 68 per cent of Ontarians surveyed think it’s a good idea.

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Vaccinating young kids is a difficult choice for some parents. On the one hand, the disease has hospitalized as many as one in 333 kids with confirmed cases in Canada, and the vaccine has the potential to protect kids and reduce the spread. On the other hand, deaths have occurred in less than one in 50,000 younger kids with confirmed cases, and the “limited” size of the clinical trial of the Pfizer vaccine in younger children (3,109 vaccine recipients) makes it unlikely that adverse events that occur in less than one in 1,000 children would have been detected, according to the National Advisory Committee on Immunization .

We don’t, in other words, know whether rare side effects like myocarditis that have shown up in adolescents and young adults post-vaccination will also show up in young kids.

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For parents worried that their kids will be excluded from school if they don’t choose to get them vaccinated, the Charter of Rights and Freedoms is likely to offer some protection.

Supporters of mandatory COVID-19 vaccines often point to Ontario’s Immunization of School Pupils Act (ISPA) as evidence that mandating vaccinations in order to attend school would be legal. However, the ISPA does not make vaccines truly mandatory, as it allows parents to exercise their constitutional right to opt out through broad medical and conscience exemptions. Unlike with vaccine passports that exclude kids 12 and older from restaurants and movie theatres unless they have one of two extremely rare medical conditions, any law requiring COVID-19 vaccinations to attend school would need to, like the ISPA, offer broad exemptions.

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Under the ISPA, medical exemptions are available when a doctor or nurse agrees that a vaccine “may be detrimental” to a child’s health. Even under extreme pressure from regulators, at least some doctors and nurses would be willing to attest that the current unknown risks of rare side-effects mean the vaccine may be detrimental.

Medical exemptions such as these are constitutionally required because forcing parents to choose between vaccination and school would violate their right to security of the person under Section 7 of the charter, which protects bodily choice. It says the government may not interfere with our bodies, except in accordance with the principles of fundamental justice. These principles include prohibitions on laws that are arbitrary or grossly disproportionate.

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A law that purports to protect children’s health would be arbitrary if it harms a single child’s health — for example, through vaccine-induced myocarditis, or by pushing an unvaccinated child into depression because she’s blocked from attending school.

Such a law would also be grossly disproportionate if the magnitude of the punishment — suspension from in-person classes — shocks the conscience. Gross disproportionality sounds like a high bar, but the principle has been applied to invalidate far less shocking things, such as automatic one-year sentences for those convicted of possessing drugs if they had a prior trafficking conviction.

The ISPA also requires exemptions for any parent who attests that “immunization conflicts with the sincerely held convictions of the parent based on the parent’s religion or conscience.” This is also key to its constitutionality.

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Although religion appears to have little to say about the morality of vaccination, the right to “freedom of religion and conscience” guaranteed by Section 2(a) of the charter would prevent mandatory vaccination in a situation in which a parent has a conscientious belief that vaccination is wrong. There is surprisingly little precedent defining freedom of conscience, but as scholar Brian Bird has argued , it appears to protect non-religious moral beliefs, as well.

Former Supreme Court chief justice Beverley McLachlin said in Hutterian Brethren of Wilson Colony v. Alberta that the charter equally protects the beliefs of “atheists, agnostics, skeptics and the unconcerned.” This suggests the test for proving a violation of freedom of conscience would be similar to the test for religion.

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To find a violation of religious freedom, the claimant must show a non-trivial interference with his or her ability to act in accordance with a practice or belief that has a nexus with religion. The test for a violation of freedom of conscience is likely the same, minus the religion bit.

As Mariette Brennan, Kumanan Wilson and Vanessa Gruben pointed out in the Alberta Law Review, there is precedent for the idea that forcing parents to choose between their beliefs and sending their kids to school would be a substantial interference with their rights under Section 2(a).

In Multani v. Commission scolaire Marguerite-Bourgeoys , the Supreme Court sided with a Sikh boy who had been forced to choose between wearing a ceremonial dagger, as his religion required, and attending school, which had banned the dagger for safety reasons.

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It’s true that “reasonable limits” on rights can be upheld under Section 1 of the charter if demonstrably justified in a free and democratic society, but the Supreme Court has never found that a law that violates an individual’s Section 7 rights could be saved by Section 1. The court has said that such a justification might be possible during emergencies like pandemics, but the government would still need to show that the salutary effects of the law outweigh the deleterious effects, and that the law is minimally impairing of the right.

It would be difficult to argue that hurting even a small number of children through potential vaccine injuries or depression resulting from keeping them from classes could justify whatever marginal decrease in COVID-19 cases might result from refusing to provide exemptions. It is also likely that regular testing of unvaccinated children would be a minimally impairing alternative considering that vaccinated people can also sometimes spread COVID-19.

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This does not mean all laws that coerce people into getting vaccinated are unconstitutional unless exemptions are allowed. What makes K-12 education a clear case is that school is an essential service and the harms of keeping kids out of class are so high, while the risk unvaccinated kids pose to their classmates and vaccinated teachers is low. The “reasonable limits” analysis would look very different in a long-term care home full of vulnerable people.

It’s impossible to be certain what courts will do, but it’s difficult to see how immunization against COVID-19 could be truly mandatory to attend schools during the current pandemic. The charter is likely to protect parents who believe strongly that it’s the wrong choice for their kids.

National Post
Twitter.com/JoshDehaas

Josh Dehaas is a student at Osgoode Hall Law School in Toronto and president of the Osgoode Runnymede Society

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