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British Columbia unveiled a plan to require proof of COVID-19 vaccination for entry into multiple settings, including but not limited to restaurants, bars, gyms, night clubs, indoor ticketed events, and on-campus student housing. The requirement for a single dose will go into effect on September 13, 2021, and by October 24, 2021, will be extended to require two doses.

The province has confirmed that apart from young children, there will be no exceptions to this mandate. This includes people who for medical reasons cannot be safely vaccinated, or people avoiding it for religious purposes. While there aren't as many valid medical reasons for avoiding the COVID-19 vaccine as some might try to argue, they do exist, albeit rarely.

Section 15 - Equality Rights of the Canadian Charter of Rights and Freedoms states the following:

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Similarly, section 1 (b) of the Canadian Bill of Rights states a similar rule.

Given this, how is the government legally able to enforce the mandate in its current form? If people do exist who cannot receive the vaccine due to a physical disability such as life-threatening allergies, is the refusal to accept these exceptions unconstitutional? While I would imagine a religious reason for avoiding a vaccine would be hard to argue in court, would the same principal still apply?

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  • AFIAK there is no medical reason against Covid vaccination. There can be medical reasons against specific vaccines, but just because one vaccine wouldn't be a good idea doesn't mean the others are also a problem. Sep 11 at 5:14
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No rights are absolute. In particular, Charter s. 1 specifies rights are "subject only to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

Generally speaking, when rights are infringed the courts will consider it a justifiable infringement if it serves a substantial purpose while proportionate, rational and minimally infringing (Oakes test, though there's a heap of subsequent case law refining the test).

While the exact order text isn't yet available, determining constitutionality would typically be a detailed analysis a judge would have to perform after hearing arguments from parties to a case (I assume the order will eventually be published here).

In my own opinion, I would imagine such an order without appropriate medical exemption would be unconstitutional. It would seem to be disproportionate to deny freedom of movement to a presumably very small number of persons who could do little to remedy their medical condition. As a similar example from another province, a Quebec court ruled that a Covid-19 curfew requiring people to remain inside at night would not apply to homeless people due to discriminatory and disproportionate effect.

Assuming the order to be similar in nature to existing BC orders on gatherings and mask-wearing, I would imagine lack of religious exceptions to be constitutional, as those orders have already been challenged and upheld against religious objections (though I believe appeals are still possible). The nature of the identified infringements against religious groups was considered reasonably proportionate, rational and minimal enough when weighed against the legitimate governmental need to contain the spread of Covid-19.

P.S. The Canadian Bill of Rights has in practice been largely superseded by the Charter. Furthermore, it is completely inapplicable here as it is a federal statute with no effect on provincial matters.

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  • Don't forget that the government can always claim its a "COVID emergency" which seems to override the Constitution in Canada. I don't believe any COVID regulations were found illegal in Canada since the pandemic started. Sep 10 at 20:42
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    @JonathanReez A "COVID emergency" excuse must still be constitutional. It doesn't override the Constitution, but is likely to be seen as a substantial emergency which weighs in favour of the government in a s. 1 proportionality analysis. Courts would also likely give deference to the government as to whether reasonable alternatives exist (this is one of those Oakes follow-up refinements). Despite this, COVID regulations have occasionally been found unconstitutional as in the Quebec case I cite & also marginally in the BC case cited (though mainly upheld, and fully on the religious concerns).
    – DPenner1
    Sep 10 at 21:24
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    (though I can't find the Quebec order suspension judgment - it's likely an emergency injunction or similar rather than a full trial, meaning the judge thought the order would likely be unconstitutional as applied to the homeless - in either case the Quebec government decided not to challenge it)
    – DPenner1
    Sep 10 at 21:43
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As no draft decision/law on this has seemingly been published, we only have press coverage to go by, but a more recent one is that...

B.C. has now indicated medical exemptions to the incoming vaccine card requirement may be allowed, but only in “extremely rare” cases. [...]

When the measure was first announced last month, provincial health officer Dr. Bonnie Henry said there would not be exemptions for people who are not able to get immunized for medical reasons. [...]

In an email to CTV, the Ministry of Health indicated the province now seems to be opening the door to some exceptions. [...]

“There will be an exemption process in place for extremely rare circumstances, involving a person’s doctor and the Office of the Provincial Health Officer,” the ministry said. “However, these instances will be extremely rare.”

This is actually not unlike what happened in France, there was widespread furore in the press, but the draft law had such a provision...

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    I'm not sure what the situation is with religious exemptions in BC for regular vaccines, but for masks during the pandemic BC judges seemingly weren't too inclined to consider them bc.ctvnews.ca/…
    – Fizz
    Sep 10 at 1:09
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    If no religion is exempt then there is no discrimination on the grounds of religion as they are all treated identically? I Fail to see a problem there.
    – Dan Mills
    Sep 10 at 13:00
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    Sounds like it could be a case of the health officer not understanding the law. It is not an elected position and is an advisory role, not a lawmaking one, so it's odd that they are speaking on it so authoritatively. Sep 10 at 17:12
  • @DanMills "pork for everybody!" is an example of treating everyone equally, which could be considered a discrimination against some religions. I cannot find a good example with vaccines, though, and I agree with you. Sep 11 at 7:28
  • @EricDuminil Is "Pork for everybody" discriminating based on religion is is the religion doing the discriminating against the serving of the pork? "I don't want green eggs and ham" probably does not create a requirement for the vendor of green eggs and ham to offer an alternative just to satisfy Sam, even if the eating of such is (quite reasonably) against Sams religion surely. The alternative is that I could spin up a religion to override almost any regulation a bit of government tried to institute.
    – Dan Mills
    Sep 11 at 19:53
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Forced vaccination jabs would force central tolerance to virus pattern, in the body of the vaccinated person. This is in breach of international law and human rights, European article 3 to forbid violation to integrity of person; there should be a corresponding legal reality in British Columbia:
https://fra.europa.eu/en/eu-charter/article/3-right-integrity-person
Jab safety has been long disputed:
https://www.ncbi.nlm.nih.gov/books/NBK233000/?fbclid=IwAR3RQMQUDzMpvGMAQCFnayuS5zg9pcthLXj3NJRaJHnuSE_ry4PiKGIUru8
The acquired central tolerance may reasonably be considered a factor in the increase of Covid delta cases, as recently in Israel.
https://www.facebook.com/teresa.pelka/posts/10215091610962922

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