Too early to pronounce vaccine passports judge-proof

By Sayeh Hassan and Henna Parmar

The role of a lawyer is to advocate for and advance the position of their client in the best and most efficient way possible. Lawyers are not decision-makers. It is presumptuous for any lawyer to prematurely assume the court’s decision without being privy to the evidence that will be presented in court.Heather MacIvor recently published an article in The Lawyer’s Daily asserting that the vaccine passports were “judge proof.” In making her arguments she referred to a number of cases argued by the Justice Centre for Constitutional Freedoms including Gateway Bible Baptist Church et al. v. Manitoba et al  2021 MBQB 218 and 2021, MBQB 219). and Spencer v. Canada (Minister of Health) [2021] F.C.J. No. 622, suggesting that because certain Charter arguments were rejected in those cases, the vaccine passport challenge must fail. Interestingly, while MacIvor admits that s. 9 and 10(b) arguments in the Spencer case were partially successful, this is stated in a bracket and as an afterthought. It should be noted that the Spencer case is currently before the Federal Court of Appeal and the Gateway decision is being carefully reviewed for appeal grounds.What differentiates the vaccine passport case from other Charter applications is the invasive and experimental nature of the vaccines, and the government’s coercion and insistence that all must be vaccinated. The vaccines have not yet completed human clinical trials and the long-term effects remain unknown. The government publicly announced that the AstraZeneca vaccine was safe, only to ban the vaccine later because of the harmful side effects.Those who do not want the vaccine are being segregated from society, threatened with job loss and lack of income, losing their education, and more. The federal government is placing unvaccinated federal employees on administrative leave without cause even if they work from home. The government and employers are not assuming any liability for adverse events and side effects that may occur from taking the vaccine. Business owners are expected to lose business by being the government enforcer and shutting their doors to a select group of people.The vaccine passports infringe numerous Charter rights including ss. 2, 7, 8, and 15.Vaccine passports engage s. 7 liberty rights by limiting the access Canadians have to many spaces deemed “non-essential” by government. Further, the choice to be vaccinated is an inherently private choice that goes to the very core of enjoying individual dignity, bodily autonomy and independence.Security of the person is as also paramount. The new COVID-19 vaccines have documented serious side effects, including myocarditis and blood clots, which medical experts will testify about in court.   Further, security of the person incorporates full informed consent. Anyone receiving a medical treatment must be informed of all possible side effects, including the rare but very serious ones. This has been affirmed by the Supreme Court, which has ruled in order for any consent to be valid, it must be fully informed (Reibl v. Hughes [1980] 2 S.C.R. 880).These violations are contrary to the fundamental justice principles of arbitrariness and overbreadth. There is no rational connection between the objective of preventing transmission and mandatory vaccine passports, in light of the data that shows that even fully vaccinated individuals can contract and transmit COVID-19. This was tragically demonstrated in the recent case of a Newmarket hockey rink where 15 fully vaccinated men playing hockey at different times and days contracted COVID-19, which caused one player to die and 10 of them to be bedridden.These measures are also overbroad, as they apply to those who already had COVID-19 and thereby acquired natural immunity.Further, people with valid medical conditions are being denied exemptions because colleges of physicians and surgeons are prohibiting doctors from exercising independent professional judgment when treating their own patients. This amounts to discrimination based on medical disability. Why is paralysis of the body after the first dose less worthy of an exemption than someone that experiences myocarditis after the first dose?Vaccine passports violate the Charter-protected freedoms of conscience, religion, thought and belief. The purpose of s. 2(a) of the Charter is to prevent interference with profoundly held personal beliefs that govern one’s perception of oneself, humankind and nature. Vaccine passports disregard this entirely.Vaccine passports create a two-tiered society. Children as young as 12 are now segregated from mainstream society and denied a normal, free life. History has demonstrated that when a society segregates and discriminates against minorities it will lead to irreversible damage. Allowing only certain individuals to access certain facilities, without credible scientific evidence to support such segregation, is not in the spirit of the Charter in a free country.Sayeh Hassan and Henna Parmar are lawyers with Justice Centre for Constitutional Freedoms.

This article was originally published by The Lawyer’s Daily, a division of LexisNexis Canada.