National Post (Latest Edition)

Vaccine plan a test of tactics

Anti-vaxxers left with few options but court

- Chris selley

The Liberals’ sudden pre-campaign promise to make vaccines mandatory in the federal public service, and for anyone hoping to ride on a train or airplane, survived its first press conference more or less intact on Wednesday morning in Ottawa.

There were some obvious ladders the government could have climbed down, most notably offering rapid testing for the unwilling — something chief human resources officer Christine Donoghue proposed in a memo to deputy ministers that quickly vanished from the internet in the early days of the campaign. But Prime Minister Justin Trudeau and Deputy Prime Minister Chrystia Freeland declined to use them.

Instead, they vowed that however many of Canada’s 300,000 or so civil servants refuse a COVID-19 vaccine, and can’t cobble together sufficient medical or religious justificat­ion within the next few weeks, will face unpaid leave by the middle of November.

“This is about keeping people safe on the job and in their communitie­s,” said Trudeau. “And the same goes for the second commitment we made: mandatory vaccinatio­n on travel.”

Indeed, by the end of November, if you’re unvaccinat­ed, you’re travelling by road or not at all — or so they promise.

“There will only be a few extremely narrow exceptions, like a valid medical condition,” Trudeau warned. Religious exemptions will also be available, government background documents show, but Trudeau vowed they will be “onerous” to obtain and must concern obligation­s going far beyond “personal conviction.”

The public service aspect will be fascinatin­g to watch, in light of Trudeau using it as a wedge issue against Conservati­ve leader Erin O’toole — who suggested Donoghue’s approach, more or less. It’s a hell of an undertakin­g.

To begin with, public servants will simply need to attest to their double-vaccinated status — easy enough. But then those attestatio­ns are to be audited for accuracy. Hundreds of thousands of them.

The Public Service Alliance of Canada (PSAC) is already miffed, complainin­g Wednesday that the government “rushed (its) vaccinatio­n policy without meaningful consultati­on.” When it comes to its members having to provide proof-of-vaccinatio­n to their managers or face effective terminatio­n, PSAC might be considerab­ly more miffed.

Especially if the pandemic news remains mostly positive in Canada and internatio­nally, it’s easy to imagine the whole undertakin­g running out of steam — like so many other government initiative­s. And it’s easy to see the Liberals getting away with that.

When it comes to travel, however, the resolutely unvaccinat­ed are almost certainly out of luck. Airline employees have been checking tests and vaccinatio­n receipts for months. They’re good at it. If the mobs who protested outside Canadian hospitals last month tried it beyond security in a Canadian airport, they would likely find themselves far less indulged.

Indeed, for everyone’s good, this might be a time for the vaccine refuseniks to switch tactics. Street protests aren’t getting their point across; outside-hospital protests are getting them hated.

Nearly 80 per cent of Canadians support the vaccine requiremen­t for domestic air travel, according to an Angus Reid Institute poll conducted last month, and that poll shows support for “vaccine passports” in general grew significan­tly over the summer — with the 55 per cent supporting passports for restaurant­s and cinemas in May rapidly rising to 70 per cent in September, for example.

If the freedom-from-vaccinatio­n cause is vindicated, it will be in the courts. That, too, would be fascinatin­g to watch.

Trudeau and Freeland both mentioned “personal conviction” as insufficie­nt to gain a religious exemption — which is interestin­g, because that’s exactly what courts look for when considerin­g a request for religious accommodat­ion. “Religion is about freely and deeply held personal conviction­s or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment,” the Supreme Court wrote in one landmark freedom-of-religion case.

Thus, a claimant needn’t point to a scriptural or other religious document to gain accommodat­ion for a turban or hijab or yarmulke, for example, but rather convince the court that he or she “sincerely believes in a belief or practice that has a nexus with religion.”

So you can’t just make up the First Church of the Unvaccinat­ed and claim strict adherence. Canadian courts have rejected membership in the “Church of the Universe” as grounds to legally consume (massive quantities of) then-illegal marijuana, and religious objections to abortion as grounds to legally withhold taxes from the federal government. And a lot of those determined to remain unvaccinat­ed don’t seem motivated by religion, per se.

They might appeal to constituti­onally protected “freedom of conscience,” which has hardly ever been litigated in Canada: “’Freedom of conscience and religion’ should be broadly construed to extend to conscienti­ously held beliefs, whether grounded in religion or in a secular morality,” justice Bertha Wilson wrote in her concurrenc­e to the 1988 Morgentale­r decision. It has rarely been tested.

The anti-vaxxers still would almost certainly be out of luck; the courts would likely defer to the government’s reasons for infringing upon those rights. But there’s nothing left for them to do in the streets of Canada except become even less popular than they are. Pitch in for a constituti­onal lawyer and they would at least be doing something useful.

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