Guest post by Emmett Macfarlane, Department of Political Science
University administrators are apparently struggling with whether to impose vaccine mandates for all students, faculty, and staff who want to be on campus this fall. A vaccine mandate of this sort is the most effective means by which to protect the campus community, limit the spread of COVID, and protect those who, for medical reasons or age limitations, cannot be vaccinated (especially the children of students, faculty, and staff who are exposed if COVID is brought home to them).
One of the most common objections to vaccine mandates is that such a policy will infringe the rights of those people who have thus far refused to get vaccinated. Both the Canadian Charter of Rights and Freedoms and provincial human rights laws, like the Human Rights Code of Ontario, are cited as preventing universities from implementing vaccine mandates.
This argument holds little water.
It is true that the broad liberty interests of unvaccinated individuals are affected by limiting where they can go, by instituting employment requirements, and by having their privacy intruded on by being required to disclose their vaccination status. Yet we already place limitations like this in many circumstances. Ontario schoolchildren have, for many years, been required to provide proof of vaccination to attend school. Smokers are not allowed to smoke in indoor public spaces, because we recognize the dangers of second-hand smoke.
In short, one person’s liberty interests end where the rights of others begin. We cannot allow people to invoke rights in the name of behaviour that produces incontrovertible harm to others.
To address the rights argument, we must first identify which rights we’re talking about. Vaccine mandates do not involve the state holding people down and injecting them. Therefore, there is no viable threat to one’s individual “security of the person” under section 7 of the Charter in this respect. Vaccine mandates are, at most, coercive, but not in a way that rises to the level of violating the principles of fundamental justice underlying section 7 of the Charter.
The Charter rights most plausibly impacted by vaccine mandates would therefore be individuals’ freedom of conscience or, if refusal to vaccinate is underpinned by religious reasons, freedom of religion. Similarly, an unvaccinated person might claim that they are being discriminated against in a manner contrary to the provincial statutes governing the conduct of employers and businesses.
Before analyzing these arguments, two caveats are worth mentioning. First, the Charter might not even apply to universities (the Charter only applies to government, and the jurisprudence on whether universities count as “government” in this sense is unclear at best). But for present purposes, let’s assume that it does. Second, it is worth pointing out that the Charter does not guarantee anyone the right to a specific job. Nor does it give students the right to physically attend a particular institution of learning, at least in a direct sense. We should dismiss simplistic arguments that employment conditions in the valid pursuit of health and safety are unconstitutional (indeed, there are other laws that require employers to take reasonable action to ensure the health and safety of employees and customers).
If we accept that vaccine mandates impose limits on freedom of conscience or religion, this does not end the matter. Section 1 of the Charter states that all of its rights can be subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” In other words, rights aren’t absolute. Similarly, human rights statutes expressly permit bona fide occupational or health and safety requirements. Where reasonable accommodations are possible, they should be provided. Even then, sometimes accommodations don’t work or aren’t feasible, and health and safety rules ought to take precedence if the risks are high enough and other accommodations constitute an undue hardship for the employer.
In the Charter context, courts demand that any limits on rights be justified by asking the following questions: Is the law/policy designed to meet a pressing and substantial objective? Is the limit of the right rationally connected to the objective (or is it arbitrary)? Is the law/policy minimally impairing? And, basically, do the harms created by the limit on rights outweigh the benefits of the law?
With regard to vaccine mandates, the first two questions are easily dispensed with. The “reasonable limits” section of the Charter was in part designed with serious situations – like a once-in-a-century pandemic – in mind. And the evidence around vaccinations as the best protection against the spread of COVID could not be more clear. A vaccine mandate is clearly rationally connected to that purpose.
Nor do I think courts would have much of an issue recognizing that vaccinate mandates meet the minimal impairment and proportionality tests. Unvaccinated people are – by many orders of magnitude – far more likely to contract COVID. While vaccinated people can also contract the virus (breakthrough cases), the evidence shows they have much shorter illnesses and infection periods. A vaccine mandate will not guarantee that outbreaks will not occur, but will substantially reduce them. The evidence on this is overwhelming.
By contrast, the rights-infringing quality of vaccine mandates are relatively minimal, particularly if crafted with the accommodations contemplated by our human rights statutes (ensuring, for example, exemptions for people who cannot be vaccinated for valid medical reasons). Moreover, universities are also in a position to provide accommodations in certain circumstances, such as remote learning, as an alternative to being on campus. All of these details considerably reduce the section 1 burden universities would face in justifying vaccine mandates. It is simply implausible that a court of law would strike down a properly crafted vaccine mandate in the current context of the pandemic.
Finally, the knock-on benefits of vaccine mandates cannot be ignored (and would be relevant to any Charter analysis). We have reached the limits of persuasion and exhortation. Implementing rules may be the only way to increase vaccination rates enough to finally reach herd immunity (in the sense of keeping the virus’s replication rates below that all-important R of 1 number). The evidence that vaccine mandates incentivize people to get vaccinated is already apparent as other jurisdictions begin to do the right thing. Thus, we can say vaccine mandates not only bring the short and medium-term benefit of health and safety, but the longer-term benefit of helping to finally end the pandemic.
University administrators should not wait. They have the power to act, and a fear of litigation is not a valid reason to put the community at unnecessary risk.
Emmett Macfarlane is an associate professor in the Department of Political Science whose research focuses on the intersection of rights, governance, and public policy. He is the author of Governing from the Bench: The Supreme Court of Canada and the Judicial Role (UBC Press, 2013) and Constitutional Pariah: Reference re Senate Reform and the Future of Parliament (UBC Press, 2021).