Ever since the pandemic started, mask mandates and vaccination requirements have become a fact of life in Canada. Many businesses won’t let customers in without them, and people in the streets often expect one another to wear them. Some provinces and the federal government have gone even further, restricting travel across their borders. Quebec is even considering placing a special tax on unvaccinated citizens.
Predictably, there has been a backlash against a lot of these requirements. Following the example of their counterparts in the U.S., numerous Canadians have protested against vaccine requirements, even to the point of marching outside hospitals, barging into schools, and threatening public-health officials at their own homes ("Police, security now a requirement for public health workers," The Gazette, Oct. 7, 2021).
Many protesters have justified their opposition to vaccine and mask mandates by saying they violate the Charter of Rights and Freedoms. Examples would be the rights to free speech and conscience (Sections 2(a) and 2(b) of the Charter), travel and live in any part of Canada (Sections 6(1) and 6(2)), and the rights to life, liberty, and security of the person (Section 7). Similar provisions exist in the American Bill of Rights, which provide a basis for the protests happening in the U.S.
There’s a subtle difference between the Canadian Charter and the American Bill, though, one that reveals some of the fundamental underlying differences between the two countries. Section 1 of the Charter clearly states that the rights and freedoms it contains are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The American Bill doesn’t contain that kind of limitation clause.
This means that, if vaccine mandates and mask requirements were challenged as a violation of Canadians’ Charter rights, the courts would reject the challenge. There’s a case to be made that measures taken to keep the virus from spreading are justified to protect Canadians’ health, and are an acceptable limit on our Charter rights under Section 1. Section 6(3) of the Charter also states that the mobility rights of Sections 6(1) and 6(2) are subject to provincial laws or practices that don’t discriminate against people based on which province they currently or previously lived in. Since there are unvaccinated people across Canada, it’s likely that Section 6(3) would apply to any claims that mask and vaccine mandates discriminate against people based on where they live.
Section 1 could play another particularly valuable role in Canada right now. Section 2(c) of the Charter guarantees the right to peaceful assembly. Some protesters have been abusing this right to threaten health-care workers, school teachers and students, and public-health officials. A ban on these protests at schools, hospitals, and especially private homes would go a long way to ensuring the safety of people getting vaccinated and the health-care workers providing the vaccinations.
And under Section 1, that ban would be entirely justified.
Jared Milne is a St. Albert resident with a passion for Canadian history and politics.
