The issue of mandatory and forced vaccination in light of COVID-19

May 7th, 2020

by Justice Centre Staff

The issue of mandatory (and perhaps even forced) vaccination has increasingly been the subject of discussion due to the COVID-19 situation. Canada’s governments at the federal, provincial and municipal levels have violated Canadians’ Charter freedoms to move, travel, assemble, associate and practice their faith, in efforts to slow the spread of COVID-19. Some government leaders have speculated that some restrictions on our Charter rights and freedoms will remain in place until a vaccine becomes available.

Can governments require a person be vaccinated, and impose sanctions if they don’t, or even forcibly vaccinate a person?

The short answer is that a government may be able to place certain limitations on those who refuse to receive a vaccination, but may not be able to lawfully force vaccination on someone against their will.

All laws and government decisions must respect the constitutional rights of all Canadians, as protected by the Canadian Charter of Rights and Freedoms.  When governments, through their laws or decisions, violate the rights and freedoms of citizens, citizens can go to court and seek redress.  Courts have the power to nullify a law, and to overrule a government decision. However, section 1 of the Charter gives a government a chance to justify before a court a violation of a Charter right. If a government is able to convince a court that its law or decision is a justified violation of a person’s constitutional rights and freedoms, the court will not nullify the law or overrule the government decision.

What is a justifiable violation of a constitutional right depends on the circumstances of each situation. The greater the importance of a government purpose, the more a court may be willing to agree with the government that the violations of a Charter freedom is necessary and justified to address the problem. For example, a perceived or declared public health threat could be used by a government to justify serious violations of individual liberty regarding vaccination.

Mandatory vaccination and forced vaccination are not the same thing.  Mandatory vaccination is a legal requirement to vaccinate, and to provide proof of vaccination, along with consequences for refusing. If an individual, or her or his children do not receive the required vaccine(s), they will be denied receipt of a government benefit they are otherwise entitled to, such as free public education.  Mandatory vaccination could also be enforced by way of a fine.

In contrast, forced vaccination would mean individuals being physically detained and forcibly vaccinated against their will by law enforcement and public health officials.

Charter Rights to Life, liberty and security of the person

Imposing penalties on, or denying benefits to, those who refuse to receive a vaccination is a violation of the Charter section 7 right to life, liberty and security of the person. If a person refusing a vaccine is doing so because of their religious or conscientious beliefs, it also violates freedom of conscience and religion as protected by section 2(a) of the Charter

Governments would try to justify these violations of Charter rights and freedoms by saying that the public must be protected from a transmissible disease, such as COVID-19. A court would look to the circumstances of each case.  The court would rule in favour of the government, or in favour of the impacted individual.

It would be easier for a government to justify mandatory vaccination than to justify forced vaccination.

Requests for legal assistance

The Justice Centre will review requests for legal help on a case-by-case basis.  Depending on the facts, it could be within our mandate to represent an individual who is challenging mandatory or forced vaccinations.  We would carefully review the specific facts of each individual case, as well as looking closely at the specific law or government decision that is being challenged.

If you have submitted a request for legal assistance, you will hear back separately from our legal team.

The Justice Centre’s legal team is monitoring government actions closely. If necessary and appropriate, we will challenge government action in court, where there is an extreme, unnecessary or unjustified infringement of fundamental Charter freedoms.

What can you do

You and other citizens should contact your federal MP as well as your provincial MPP or MLA, to share your concerns. Citizen participation in the democratic process remains as important as ever (and can be done easily without needing to visit the MLA/MP office in person!). You can also write letters to media outlets and editors across the country to express your viewpoint. There is strength in numbers.

Please feel free to share our news releases, columns and articles with your friends and family to help more people become aware of their Charter rights during this time. You can join our mailing list and receive our free monthly e-newsletter to stay up to date on our activities.

Also, the Justice Centre is a non-profit, non-partisan, registered charity and public interest legal advocacy organization, which relies entirely on voluntary donations from Canadians to carry out its work. We represent all our clients free of charge, and we are entirely funded by donations. We do not ask for, or receive, government funding.

If it is within your means and desire to do so, we appreciate any donations to further fight to maintain the freedoms of all Canadians.  We issue official tax receipts in respect of all donations.