On January 11th, the Justice Centre for Constitutional Freedoms announced its intention to challenge the COVID-19 travel vaccine mandate before the Supreme Court. It claims that this public health measure infringed on constitutionally protected rights. Can the government limit our fundamental rights and freedoms under certain circumstances?
Canada’s laws ensure that our society is orderly and our rights are protected. The Canadian Charter of Rights and Freedoms is part of the Canadian Constitution and sets out the fundamental rights and freedoms the Canadian government must uphold.
Barring a few exceptions, citizens and non-citizens alike, regardless of status, are guaranteed various rights, including the right to equality, life, liberty and security of the person, as well as freedoms, such as freedom of religion and expression.
In its challenge before the Supreme Court, the Justice Centre for Constitutional Freedoms intends to argue that the travel vaccine mandate infringed on the mobility rights enshrined in the Charter, which states that every Canadian citizen or permanent resident has the right to move to, live and work in any province.
Balancing individual rights and societal interests
Sometimes, two rights can clash. To uphold the interests and values of a democratic society, one right must prevail over the other. For example, where child pornography is concerned, a child’s right to security and privacy trumps another person’s right to freedom of expression.
This means the Canadian government can sometimes limit certain rights and freedoms through laws, regulations or government policies. Under the Charter, these rights and freedoms are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The Oakes test
Over the years, the courts have developed a way to assess a legal rule and determine whether the government’s choice to uphold one fundamental right over another is justified. We call this the Oakes test after the landmark Supreme Court decision in which it was established. Under this test, the government must demonstrate that its legal rule strikes an appropriate balance.
The court must seek to understand how important the rule’s objective is and whether it relates to a pressing concern. It must also determine whether the limit on the right or freedom is “reasonable” and can be “demonstrably justified.”
This means the government has to prove that the limit is rationally connected to the objective sought and demonstrate that it impairs Charter rights as little as possible. In addition, the negative effects of the limit must not outweigh its benefits.
If the court rejects the government’s explanation or isn’t convinced that the Oakes test has been met, the portion of the law, regulation or government policy that has been challenged is deemed unconstitutional or inapplicable. Though the travel vaccine mandate has been lifted, the Justice Centre for Constitutional Freedoms insists its challenge remains relevant to “protect Canadians from government abuses”.