Vaccine Mandate On January 15, 2022, the Government of Canada mandated that all Canadian drivers who are partially vaccinated or unvaccinated will have to quarantine on arrival. This would include all Canadian cross-border essential workers, such as truck drivers, who must show proof of vaccination at a port of entry in order to avoid testing and quarantine rules.
Freedom Protest in Ottawa On Saturday, January 29, 2022, hundreds of truck drivers and thousands of people in Ottawa protested against vaccine mandates required for crossing the US-Canada border. The “Freedom Convoy” is protesting the recent mandate requiring truckers to be fully vaccinated prior to entering Canada or they must adhere to testing and quarantine requirements.
The Charter of Rights and Freedoms
The Charter’s Section 7 has been referenced by the Freedom Convoy and others who oppose vaccine mandates. Section 7 guarantees that “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.”
If someone were to establish a violation of Section 7, it may be upheld under Section 1 of the Charter. Section 1 guarantees that the “rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." In other words, the government can reasonably limit people’s rights, if the limits can be justified under the law. The ongoing pandemic may be demonstrated as a reason to do so. To determine whether an action or measure by the government can be saved by Section 1 of the Charter, the court will apply the Oakes test. It is important to note that the rights and freedoms in the Charter are not absolute as per R v Oakes and therefore can be infringed if the Courts determine that it is “reasonably justified.” This means that the Charter recognizes that some laws may violate the Charter but nevertheless are justifiable as a “reasonable limit” under Section
1. A reasonable limit must be “prescribed by law” and “demonstrably justified in a free and democratic society.”
Things to Consider
In order to challenge the Charter, the court will consider two questions:
1) Were your rights under the Charter violated?
2) Can the government justify the law as a reasonable limit? (Which will be determined by way of the Oakes test).
While vaccine mandates can impact Charter rights, particularly section 7, whether they constitute an illegal infringement will be a question for the courts.
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