Charter arguments will not likely help vaccine-mandate opponents

by Richard Moon. Originally published on Policy Options
September 29, 2021

People opposed to vaccination requirements for certain jobs and recreational activities have realized that they are not going to win the public debate, so they have turned to the Canadian Charter of Rights and Freedoms. When public policy arguments fail, there is always the Charter.

Yet Charter arguments against vaccination requirements that are based on liberty, conscience and equality have little substance and will, or should be, dismissed quickly by the courts. An examination of one of these rights, freedom of conscience, shows just how weak these claims are.

The Charter protects an individual’s freedom of conscience and religion. Freedom of religion protects the individual’s sincerely held spiritual beliefs and practices from state interference. If an individual believes that God or divine law forbids vaccinations, for example, then a law that requires vaccination as a condition for participation in certain activities may breach the Charter’s guarantee of freedom of religion.

There are, I suspect, very few people, if any, who oppose vaccination on religious grounds. To believe that healing comes through prayer, as Christian Scientists do, is not the same as believing that vaccination is immoral and forbidden, particularly when required by the state. While there has been religious opposition to other vaccines because they incorporate fetal cell lines, that does not seem to be an issue with the different COVID vaccines.

But even if someone has a sincere religious belief that vaccination is wrong, their religious freedom is subject to limits. It is more than likely that a court would find that the exclusion of unvaccinated individuals from certain forms of employment or recreational activities is a reasonable limit on their religious freedom, given the risk to others in the community when interacting with those who are unvaccinated.

Many vaccination opponents, though, claim that the requirement would breach their freedom of conscience – the first component of the Charter’s freedom of conscience and religion protection. While freedom of religion protects religious beliefs and practices, freedom of conscience extends protection to fundamental beliefs and practices that are not part of a religious system. Together, freedom of conscience and freedom of religion protect the individual’s most fundamental moral beliefs or commitments.

Two kinds of objection have been made against vaccination requirements, neither of which is protected by freedom of conscience.

The first is that the state has no right to require or pressure individuals to do something they don’t want to do. But the problem with this claim is that it is not based on moral opposition to a particular practice (vaccination) but is instead a direct and general challenge to the legitimacy of state authority. This objection, to the general authority of the state, is too political and too sweeping to fall within the protection of freedom of conscience.

The second, and more common, objection is that the vaccinations are unsafe or unnecessary. The objectors dispute the evidence about the health risks of COVID-19 and/or the safety and efficacy of the vaccines, presumably on the basis of misinformation gathered in social media bubbles.

In several cases, Canadian courts have considered conscience-based claims to exemption from the requirement that car passengers wear seatbelts. In each of these cases, the claim for exemption was dismissed with few reasons given.

In one case, though, the Alberta provincial court judge, when rejecting the conscience claim, observed that the individual’s belief “that wearing a seatbelt may cause him more harm than good is not of the same order as the comprehensive value system protected by” the conscience right. The individual’s opposition to the legislation was based not on a commitment to a different set of values (concerning personal safety or physical integrity) but instead on a different judgment about the safety consequences of (not) wearing a seatbelt. He believed that he would be safer if he did not wear a seatbelt. The legislature, though, had specifically addressed this question and, relying on empirical evidence, had determined that the safety of passengers would be better protected if they wore seatbelts.

While freedom of conscience may sometimes protect an individual’s deep moral objection to a particular legal requirement, it does not protect disagreement with the scientific or empirical evidence relied on by the makers of the law.

The limited scope of freedom of conscience can also be seen in the case of conscientious objection to military service. Canada has not had conscription since the Second World War but in other countries that have imposed compulsory military service, the exemption for conscientious objection has been limited to a general opposition to participation in war.

In the United States, for example, an exemption from compulsory military service will not be granted to individuals who object to participation in a particular war because they believe the war is not justified for social, political or economic reasons. Exemption from military service will be given only when an individual holds a profound moral belief that participation in war is wrong in any circumstance. Either one accepts that participation in war is always wrong or one does not accept this, believing instead that it “depends” or that “it’s complicated.” The latter is not grounds for an exemption, the courts have ruled.

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Those who oppose vaccination cannot claim that the requirement to have one in certain circumstances breaches their freedom of conscience simply because they distrust or disagree with the science concerning vaccine safety and effectiveness or the risks of contracting COVID-19. Only those who hold a profound moral belief that receiving a vaccine is wrong can make such a claim (and even then, this claim may be subject to limits under the Charter). This largely does not seem to be the view of those who oppose vaccination and so their freedom of conscience claims will fail.

This article first appeared on Policy Options and is republished here under a Creative Commons license.