(Ottawa) The vaccination obligation imposed by the federal government on employees of the transport sector is constitutional even if it contravenes section 7 of the Canadian Charter of Rights and Freedoms, judges the Superior Court. The United Steelworkers were challenging the suspension without pay of employees who refused to be vaccinated.
Posted at 7:48 p.m.
The Press obtained the decision issued Tuesday by Judge Mark Phillips. The vaccination obligation was imposed by the federal government on October 30, 2021, during the fourth wave of the pandemic, and was lifted on June 20. Employees in the air, sea and rail transport sectors were particularly affected.
“The evidence confirms that vaccination as such constitutes a public health measure which is in the direction of the public interest, writes the judge. Compulsory vaccination in the transport sector has not only proven to be effective, but has prevented very serious problems. »
The United Steelworkers argued that the obligation to be vaccinated in order to be able to work violated the Canadian Charter of Rights and Freedoms. Section 7 of the Charter guarantees the “right to life, liberty and security of the person”.
Four criteria
However, the exceptional nature of the COVID-19 pandemic justifies the violation of these rights since it is a disease which “can be severe and even fatal”, writes Judge Phillips. It reviews four criteria established by case law for the court to consider a violation of these fundamental rights to be justified: the pursuit of an “urgent and substantial” objective, the rational link between this public health objective and the mandatory vaccination, the least intrusive measure, and whether its beneficial effects outweigh its harmful effects.
Some employees preferred to rely on their natural immunity rather than getting vaccinated. The judge recognizes that it is “a legitimate personal choice”, but adds in the same paragraph that vaccination offers better protection against the Omicron variant than that acquired after an infection by referring to the scientific studies presented in evidence .
He notes that exceptions were already provided for people who had a medical contraindication or a sincere religious belief that prevented them from getting vaccinated. Adding free choice to these two exceptions would have been contrary to the public health goal of protecting people from disease, he argues.
Judge Phillips recalls that the hospitalization rate was 25 times higher among the unvaccinated at the time when the vaccination obligation was imposed in October 2021. He considers that vaccination was “the least intrusive measure that would have to achieve the objective”, especially since “compliance with the precautionary principle was essential”.
Measures such as mask-wearing, social distancing, ventilation, and hygiene reduce COVID transmission, but do not provide sustained immunological protection in the event of infection.
Judge Mark Phillips, in his decision
Justice Phillips also rejects the argument that this policy was imposed for economic or administrative reasons. In his judgment, the magistrate stresses the importance of transport under federal jurisdiction for the delivery of “essential goods” and “to ensure the efficiency of supply chains”.
He notes in passing that the Canadian transportation sector has been more resilient than that of the United States thanks to vaccination.
Ottawa satisfied
“We welcome the decision of the Superior Court of Quebec which found that the vaccination requirements were in accordance with the Canadian Charter of Rights and Freedoms,” said the office of Transport Minister Omar Alghabra.
PHOTO PATRICK DOYLE, THE CANADIAN PRESS ARCHIVES
Omar Alghabra, Minister of Transport of Canada
“Throughout the pandemic, we have put in place measures to ensure the health of Canadians and the safety of the transportation system. We will never hesitate to act to protect Canadians in the face of a threat. »
The United Steelworkers, which represents 60,000 workers, took note of the judgment which it obtained only in the evening. He does not rule out appealing it. The union, affiliated with the Quebec Federation of Workers (FTQ), recalls that it “subscribes to the objective of a large-scale vaccination campaign as a means of combating the pandemic”.
“Nevertheless, we felt that the price to pay for a personal decision not to be vaccinated, i.e. the loss of a job or an income, was disproportionate, whereas accommodation measures could have been put in place, as was the case at the start of the pandemic, while preserving public health imperatives, ”said the assistant to the Quebec director of the Steelworkers, Donald Noël.