Is It Legal to Force a Person to Get Vaccinated?

The Right to Deny Employment, Access to Services, Among Other Things, to Persons Who Fail to Obtain Vaccination Against Covid-19 Remains An Unknown. While Many Laws Appear Applicable to Covid-19 Vaccination Issues, Some Laws Appear to Support Mandates and Other Laws Appear to Support Protection Against Mandates.

Understanding the Speculation Within Legal Advice About Mandatory Vaccination Due to a Lack of Precedent Cases

Covid Vaccine The last worldwide pandemic was in 1918.  Back then, vaccination technology was limited and laws on many issues involving human rights and workplace protections were lacking.  Even the Canadian Charter of Rights and Freedoms was lacking.  Accordingly, today, during the Covid-19 pandemic, there are great challenges in answering questions posed to legal representatives.  Such questions include, "Can an employer force employees to get vaccinations?", "Is a business allowed to forbid entry to an unvaccinated person?", among many others.  The answer to these questions is difficult to provide with a high degree of certainty whereas the relevant laws appear vague and include exceptions that may be broadly interpreted thereby providing many possible twists and turns.  Of course, until the Supreme Court of Canada makes final determinations, only educated and informed guesses presently exist.

The Law

There are many laws that appear applicable to the issue of whether a person may be forced, or firmly influenced, to accept a vaccination.  Whereas these various laws may support, or conflict with, one another, such greatly contributes to the challenge in providing legal advice with a clear answer as to whether a person may be required to vaccinate.  These laws include, the Canadian Charter of Rights and Freedoms, the Human Rights Code, R.S.O. 1990, c. H.19, the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, among others.  Specifically, the sections of these laws that appear applicable include:

Fundamental freedoms

2 Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

.....

Life, liberty and security of person

7 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.

Services

1 Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

Accommodation

2 (1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.

Harassment in accommodation

(2) Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.

Contracts

3 Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

Accommodation of person under eighteen

4 (1) Every sixteen or seventeen year old person who has withdrawn from parental control has a right to equal treatment with respect to occupancy of and contracting for accommodation without discrimination because the person is less than eighteen years old.

Idem

(2) A contract for accommodation entered into by a sixteen or seventeen year old person who has withdrawn from parental control is enforceable against that person as if the person were eighteen years old.

Employment

5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

Harassment in employment

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

Vocational associations

6 Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

Sexual harassment

Harassment because of sex in accommodation

7 (1) Every person who occupies accommodation has a right to freedom from harassment because of sex, sexual orientation, gender identity or gender expression by the landlord or agent of the landlord or by an occupant of the same building.

Harassment because of sex in workplaces

(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.

Sexual solicitation by a person in position to confer benefit, etc.

(3) Every person has a right to be free from,

(a)  a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(b)  a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

Reprisals

8 Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

Infringement prohibited

9 No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

Duties of employers

25 (1) An employer shall ensure that,

.... 

Idem

(2) Without limiting the strict duty imposed by subsection (1), an employer shall,

(h) take every precaution reasonable in the circumstances for the protection of a worker;

The above laws appear relevant to issues of mandatory vaccinations whereas:

  • The Charter of Rights and Freedoms protects against government interference in the section 2 rights of freedom of conscience, religion, thought, belief, opinion, and expression as well as the section 7 right to security of person;
  • The Human Rights Code provides protection from discrimination by government, corporations, or individuals engaged in business, based on characteristics that may relate to vaccination choices such as cultural beliefs as well as disability and perhaps other things in relation to the accessing of services, accommodations, contracts, employment, and vocational associations; and
  • The Occupational Health and Safety Act provides protection to employees by requiring employers to provide a safe workplace.  

Furthermore, there are few case law decisions of judges regarding mandatory vaccinations; and of these, there are obviously zero that address whether a mandatory vaccination is lawful when facing a worldwide pandemic.  Accordingly, legal practitioners are left with only various statute laws to review and to use in providing educated, but best guess, advice to persons seeking legal advice on the issue.  Interestingly, within the decision of Duplessis v. Canada, 2000 CanLII 16541, the Federal Court makes a reference to a military court martial at which it was stated that a forced vaccination program violates Charter rights.  Specifically, it was stated:

[41]  In the Standing Court Martial of Ex-Sergeant Kipling, whose breach of command resulted in severe disciplinary proceedings, the Chief Military Judge found that the forced vaccination program did violate section 7 of the Charter, in that the accused's right to life, liberty, and security of the person was infringed. At page 2 of the minutes of the proceedings of the Standing Court Martial:

Non-consensual vaccination under the threat of disciplinary proceedings amounts to an invasion of the bodily integrity and personal autonomy of a person. [emphasis added]

Interestingly, taking the position that a vaccination is against personal religious beliefs, or other reason, may be troublesome for persons who state so merely as an excuse of convenience without a genuine history of anti-vaccination beliefs.  Whereas a person may hold a belief that vaccinations against Covid-19 were rushed through the health approval system, such a person may be challenged, legally, from stating religious grounds, or other beliefs, as a reason to decline a vaccination.  As a potentially concerning example, an employer that terminates an employee who is unwilling to adhere to a vaccination mandate may have grounds to do so based upon the Occupational Health and Safety Act requirement to provide a safe workplace for all employees.  Where the terminated employee may attempt to argue religious discrimination, the employee will likely need to demonstrate membership within a religion that is genuinely known to take an anti-vaccination stance and the employee will likely need to demonstrate a history of avoiding vaccinations.

Summary Comment

Without a clear decision from the Supreme Court of Canada, it remains unknown whether mandatory vaccination policies of government and businesses will be deemed legal and enforceable.  Accordingly, without clear precedent law to answer the many questions pertaining to this unprecedented issue, legal advisors are left in the awkward position of being able to provide only best guess advice.  Ultimately, legal advisors can only provide the relevant legal information without guarantees.  Clients may then review and assess the information received to make, at best, reasonably informed decisions.

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