Even the Canadian, what am I saying: even the Arizona Coyotes lose less often than the opponents of sanitary measures in court.
Last week, Judge Nancy Bonsaint dismissed a notary who loves karaoke and a lawyer from Beauceron who contested the validity of the vaccination passport. They demanded that its application be suspended because of an infringement of their fundamental rights and their freedom.
On Monday, judge Michel Yergeau refused the request of 137 health workers who are contesting the decree requiring them to be vaccinated to keep their jobs.
Quebec had already backed down on the mandatory vaccination of health care workers, so the deadline of November 15 has been erased, and the judgment does not change anything.
Judge Yergeau nonetheless did a useful job.
First, his judgment provides me with a list of 13 anti-vaccine doctors that I will not go to see.
Thanks for that.
Second, he casually dismisses the myth of the supposed fundamental right not to be vaccinated.
“There is no straightforward right not to be vaccinated,” he recalls. The Public health law even allows, in certain circumstances, to force vaccination, to counter the presence of a “biological agent” and control an epidemic.
The law therefore authorizes, in the event of an epidemic, to take a recalcitrant individual before a judge to force him to be vaccinated. As it is permissible to forcibly intern in a psychiatric institution with the permission of a judge.
But precisely, whatever the anti-vaccines say, that is not at all what it is about: the vaccination of the health workers is “obligatory”, and not “forced”.
It is not a nuance, it is a fundamental difference.
Judge Yergeau did not have to rule on the merits of the case – does the government have the right to oblige the vaccination of health care workers?
He only had to decide at this point whether this decree could be suspended as a matter of urgency.
Of course, the fact that this obligation does not involve any injection of force is a game-changer. At worst, unvaccinated people could get their wages and jobs back if, by impossible, the decree is found to be invalid in three or six months. There is nothing “physically irreversible” at the moment.
The judge may not rule on the substance of the question, do not bet on the chances of success of this kind of dispute.
It is wrong to say that there is a terribly difficult legal trade-off between “the inviolability of the human body” on the one hand, and public health on the other. On the contrary, arbitration is very easy to do, and most constitutional democracies have done it: those who refuse the vaccine will be excluded from certain spheres of society to protect the greatest number.
The job of the judges is not to question every measure taken to protect public health since the decree of the health emergency on March 13, 2020, but to check if they are legal.
The protesters are essentially arguing this: suspending unvaccinated employees will cause chaos in hospitals.
They can hardly explain their personal reasons for non-vaccination; they say that vaccinated people can also transmit the virus (yes, but much less); they say that they are used to convince the general population to be vaccinated (uh, let’s say that is the case… and then?); they claim that as “health professionals” they are better placed than anyone to measure the risks they run, and those they pose to the public …
Except that at the end of the day, we are here in a discussion on the advisability of making vaccination compulsory in the health sector – which is the responsibility of political decision-makers. Courts are not here to rewrite public health decrees – unless there is a threat of irreparable abuse, which is downright nonexistent here.
We can of course discuss the best choices imaginable in the event of a health emergency. Maybe we could have opened this earlier or later, allowed that and not this …
The question is not there: judges do not have to “agree” or not with political decisions.
Simply, judgment after judgment, the courts are telling us that they are not there to play the “platform managers” of Doctor Arruda or Christian Dubé.
They also hammer, decision after decision, for lack of evidence, that the phony speech on the supposed “terrible” and “unjustifiable” violation of fundamental rights does not hold water during the worst pandemic of the last century.
Neither scientifically. Neither legally.
This is why, a year and a half later, the legal challenge gives roughly a result of 157 defeats and zero wins in court for antivaxes and other anti-sanitary measures – I exclude the case of the curfew for homeless, who is apart.