Nevertheless, a challenge to legislation allowing or permitting mandatory vaccination requirements under the Charter may affect the capacity of private actors relying on that legislation to impose vaccination requirements. The Charter applies only to government actors or those with a nexus with government. Here I concentrate on religious claims under the Charter. These can be brought, depending on the circumstances, under human rights legislation or the Charter. However, both successful medical and religious claims should be rare. Others have been more circumspect, allowing exemptions based on “human rights” without specifying which rights. Many mandatory vaccination policies have specified they are subject to medical and religious exemptions. That the whole purpose of vaccination requirements is to address an issue of significant social concern limits the application of Amselem, once the first stage of Charter analysis has been completed. But what does Amselem actually say and how does it relate to anti-vaccination claims based on section 2(a) of the Canadian Charter of Rights and Freedoms.Īlthough they may be difficult to assess, the limits Amselem impose even in determining whether the claim passes muster under the first stage of the Charter analysis can serve to make it difficult to bring fraudulent claims.įurthermore, notwithstanding Amselem‘s giving extremely wide scope to freedom of religion claims (and in doing so, it is not really departing from prior Charter jurisprudence), it gives little guidance on how to place those claims within a broader social context. When people are dismissive of these claims, others immediately respond, “But what about Amselem?”, the Supreme Court of Canada decision that seems to allow a highly subjective determination of legitimate religious belief.
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