An interesting article on radio-canada (The French section of CBC), here is the translation:
Mathieu Dion (access the author's page)
Mathieu Dion
Mathieu Dion
4:01 am | Updated at 1:56 p.m.
Justin Trudeau’s Liberals recently announced plans to require all 300,000 federal public service workers to be vaccinated. On Tuesday, Conservative Leader Erin O’Toole instead promised unvaccinated officials that they would opt for rapid drug tests. What would the courts say?
The lawyer specializing in labor law at Lavery De Billy, Marie-Hélène Jolicoeur, says she is approached by many employers who would like to impose a standard of this nature. It is whether the infringement of the fundamental right - physical integrity - is a minimal infringement, she says. If we have a guaranteed right, in order to infringe it, it must be done as minimally as possible.
At the heart of the debate is section 7 of the Canadian Charter of Rights and Freedoms: Everyone has the right to life, liberty and security of person; this right can only be infringed in accordance with the principles of fundamental justice.
We are very clear: Federal officials must be vaccinated. We will work with the unions and all the partners to make sure this is done.
A quote from: Justin Trudeau, Leader of the Liberal Party of Canada
I think this is a Charter violation, admits lawyer Julius Gray of compulsory vaccination, before adding that it might be justified. The function of the employees must be taken into account, he says.
The risks for those who work in a cubicle are lower than for their colleagues who meet citizens, for example. We cannot have a measure applicable to all without distinction, adds Me Jolicoeur, without seeing the reasons that could be alleged by the person either.
To override a Charter guarantee, the obligation must have a laudable purpose and there must be a connection between that purpose and the restriction, says Gray. Where it gets complicated, he says, is whether there is something less restrictive as a substitute.
The legal debate, he said, would focus on the quality of the alternative to vaccination and it would take experts to say whether it is sufficient or not.
A screening test, minimal damage?
The alternative proposed by the Conservative Party of Canada is to ask unvaccinated public servants to undergo rapid screening tests.
I encourage all Canadians and Quebecers to get vaccinated, but it is possible to use rapid screening tests for federal officials who have not been vaccinated.
A quote from: Erin O’Toole, Leader of the Conservative Party of Canada
According to the medical microbiologist-infectious disease specialist at the CHU de Québec-Université Laval Jean Longtin, vaccination and rapid screening tests should however be considered as complementary approaches. The test is an intervention which has an effectiveness of 20 to 30% [to detect the virus in asymptomatic patients] and we want to compare it with the vaccination which has 95% effectiveness against infection and almost 100% against death, he argues. It’s a bit misleading to dare to compare the two.
Within the meaning of the law, the attack on physical integrity posed by these tests nevertheless appears, in the eyes of Me Marie-Hélène Jolicoeur, more minimal since it is not a question of injecting a product into someone's veins. a.
Is it possible to charge for the tests?
So far, the federal government has signed agreements for more than 48 million rapid screening tests at a cost of nearly $ 927 million, or $ 19 per test.
Assuming that an unvaccinated official had to undergo several tests per week, it would be difficult for the State to demand reimbursement from him, all the more so in the absence of a clause provided for this purpose in the collective agreements.
If it were an absolutely prohibitive amount, I think there would be a fundamental rights argument, but if not, it would be a matter of labor relations, emphasizes Mr. Julius Gray.
Case law does not yet offer all the answers to the exceptional measures which must be adopted to face the pandemic ... and which will undoubtedly have to undergo the test of the courts.
