Colleges and universities across Canada have instituted proof of COVID-19 vaccination as a requirement for accessing their campuses, and various pundits have claimed that these mandates are constitutional. For example, in the August 2021 issue of Academic Matters, the Ontario Council of University Faculty Associations’ journal of higher education, Samuel Trosow and Julie Lowe of Western University’s Faculty of Law outline legal arguments to defend campus vaccine mandates against possible constitutional challenges.34
I use their article to illustrate that the changing science around the vaccines and their benefit-cost assessment are not properly taken into account in many of these legal or ethical assessments of vaccine mandates and vaccine passports.
First, Trosow and Lowe concede that two important court decisions confirm that “forced vaccinations would violate the rights to liberty and security of the person” guaranteed in Section 7 of the Canadian Charter of Rights and Freedoms. Yet they proceed to claim that “campus mandates are not forced vaccinations.” Their reasoning is that employees (faculty and staff) as well as students have options to work/study from home or take leaves. However, at the present time, it is not clear whether university administrators are inclined to offer such accommodations, and vaccine-hesitant employees and students are facing substantial personal risks when maintaining the privacy of their medical information and/or choosing not to take the jab. The University of Toronto went as far as requiring proof of vaccination from all employees, regardless of whether they need to be on campus.35 Even human rights-based exemptions are being declined on a regular basis, as per anecdotal evidence from universities across southern Ontario.
Second, Trosow and Lowe note that Section 7 of the Charter allows exceptions “in accordance with the principles of fundamental justice.” But a key consideration is often omitted right at the outset of discussions about vaccine mandates: their goal. The goal of a vaccine mandate is critically important, since legal and ethical arguments ought to weigh that goal against the infringement of civil liberties. The campus vaccine mandates would not be covered by the Section 7 exceptions if they were found to be “arbitrary, overly broad or grossly disproportionate”. What is the mandates’ actual purpose? To quote a recent communication from Ryerson University, “Our top priority continues to be the health and safety of our community members, so all students, faculty, staff, contractors and visitors must now be fully vaccinated to attend campus or to participate in in-person university activities off campus”. But how do the mandates contribute to health and safety? Do the vaccines themselves make us “healthy and safe” on campus? Tellingly, Trosow and Lowe seek to establish this relationship with a single, cryptic sentence: “There is a clear nexus between this objective and the vaccination requirement.”
Let’s discuss the issue of arbitrariness together with the question of proportionality. Are the vaccine mandates targeted at, and proportionate to, the health and safety goal? Trosow and Lowe seem to assume that vaccination produces health and safety without detailing or referencing this claim. They specifically introduce the notion that the vaccines “can reduce transmission,” and that this still applies when non-pharmaceutical interventions and even testing fail. The supporting reference here is an article in Scientific American magazine from July 2021. While at that time one could find studies that suggested a possible reduction in viral load of break-through infections and in virus transmission by vaccinated individuals, these findings have been reversed with the Delta variant.36 Cases, hospitalizations and even deaths among double-vaccinated groups are in the news,37 and some countries with high vaccine uptake now have among the highest case rates,38 suggesting that vaccination did not sustainably reduce transmission. Immunologists are explaining the non-sterilizing nature of the available vaccines;39 the shot does not prevent infection of the respiratory tract, and therefore, vaccinated individuals will spread the virus too. This obliterates the principal rationale for campus vaccine mandates and proof-of-vaccination requirements.
The COVID-19 vaccines were developed, tested, and confirmed to protect the recipient from symptomatic illness.40 Perhaps Trosow and Lowe’s “nexus” between vaccination and campus health and safety only refers to vaccine efficacy in the recipient, not to reducing or preventing transmission? But even then, unfortunately, there are growing concerns about the vaccines’ waning protection.41 In addition, the decision to protect oneself from an illness that does not substantially endanger others has always been left to the individual. In discussing the “overly broad” aspect, Trosow and Lowe suggest that by targeting “only” employees and students accessing campus and not “online students and alumni,” the mandate is narrow enough, making their argument downright ludicrous. But at this stage of the pandemic and of the scientific knowledge about SARS-CoV-2 and COVID-19, a sweeping vaccine mandate aimed at no more than encouraging community members to get the jab in order to protect themselves would indeed seem arbitrary, disproportionate, and overly broad, thereby not passing the test for Section 7 exceptions.
Third, Section 1 of the Charter permits “reasonable limits” subject to the “four prongs of the ‘Oakes test’.” We already established that the vaccines fail to significantly reduce transmission and even to reliably protect the vaccinated, thereby rendering any distinction between vaccinated and unvaccinated individuals on campus obsolete. Nevertheless, we shall also discuss the reasonable limits to Charter rights in order to discover additional evidence that vaccine mandates are unconstitutional in Canada.
The first question under the Oakes test would require the mandates to serve a “pressing and substantial objective,” or be “important and necessary” as formulated by the Centre for Constitutional Studies.42 Given what we have learned about SARS-CoV-2 and COVID-19 during the last 18 months, I do not see this basic test met. The infection-fatality rate of COVID-19 has been revised so far down that it is in the ballpark of influenza,43 for which we never took any measures nearly as restrictive as these. The rate of severe illness and death among young people, who make up the vast majority of college and university campus populations, is negligible.44 The average age of COVID-19 deaths in most countries continues to be above the national average age-at-death,45 and COVID-19 decedents tend to suffer multiple serious co-morbidities.46 Despite heart-breaking individual suffering, this virus and disease do not strike me as a population-wide threat. (Unfortunately, the panic-driven, excessive public health response in many Western countries may have had a far more damaging effect than the virus.47)
The second prong of the Oakes test requires a “rational connection” between the measure and the desired outcome. As established above, vaccinated individuals can carry and spread the virus just as much as the unvaccinated do. If the vaccines offer some protection from symptomatic COVID-19 to an individual, this person may actually become more likely to go to campus and contribute to transmission, so the vaccine mandates could very well achieve the opposite of keeping us safe. If the goal is to keep infectious individuals away from campus, then simple self-assessments or testing for either infection or (natural) immunity would serve us better.48 In fact, even among uninfected adults, the immune system of the vast majority is well prepared to combat SARS-CoV-2.49
This also speaks to the third prong of the Oakes test: to restrict the Charter right as little as possible. A formal self-assessment prior to campus visits would still be an inconvenience, but it would be a far lesser impairment than a coerced inoculation with an experimental gene-based treatment. Yes, these products are “experimental” in the sense that the technology has not been used in humans,50 the phase 2/3 trials end in 2022 or 2023 for different vaccines,51 new studies are being prepared only now as a condition for the FDA’s approval of the Pfizer vaccine,52 and according to Health Canada, “An important limitation … is the lack of information on the long-term safety and effectiveness of the vaccine,”53 which is simply due to the lack of time that has elapsed since the start of the campaign.
Last but not least, the overall relationship between the rights infringement and the benefit of the measure is problematic. Trosow and Lowe again refer to the goal of reducing transmission in light of the highly contagious Delta variant, “placing individuals at risk of hospitalization and death.” It is Evolution 101 that viruses mutate towards more infectious but less lethal variants in their quest to find an endemic equilibrium with their hosts.54 The quoted half-sentence in the Academic Matters article represents unqualified fear-mongering. Even if we assume that the vaccines miraculously regain some impact on transmission, or that booster shots will offer additional protection to the recipients, a vaccine mandate would also have to be weighed against the risk of harm from vaccination. Based on global adverse event reporting systems, several serious side effects have already been discovered, added to the vaccines’ warning labels, and subject to studies scheduled over the next several years. This includes myocarditis in young men of the age of many of our students; one recent study found that teenagers are six times more likely to suffer this serious complication than to be hospitalized for COVID-19.55
To date, hundreds of thousands of adverse events have been reported in the United States alone, including nearly 15,000 deaths.56 Independent researchers, silenced by their institutions and the media, are warning about multiple mechanisms by which the available COVID-19 vaccines could do more harm than good.57
Any legal, ethical, or common-sense assessment of vaccine mandates, of the mass vaccination campaigns, or segregation based on vaccination status requires a much more cautious, detailed, and unbiased benefit-risk assessment than what is presented by Trosow and Lowe and numerous other COVID-19 vaccine promoters in public health, academia, and the media. Such an assessment would come to valid conclusions regarding the rationale, necessity, and proportionality of the measures. Politicians, employers, and courts that skip this due diligence because they rely on public health slogans and untested beliefs about the state of COVID science will come to erroneous conclusions with possibly disastrous consequences.
The verdict of this reality check: The claim that campus COVID-19 vaccine mandates do not violate the Canadian Charter of Rights and Freedoms is false.
University of Toronto, Division of HR and Equity, Requirement to be Vaccinated, Requirement to be Vaccinated
E.g., Characteristics of COVID-19 patients dying in Italy (as of April 6, 2020!)
Fearless Canada, list of examples of collateral damage
In fact, 69 studies of the safety and efficacy of the Pfizer/BioNTech COVID-19 vaccine are active or in preparation (as of 22 Sep 2021)
Regulatory Decision Summary - COMIRNATY - Health Canada