On November 22, 2019, the provincial government of New Brunswick (Canada) announced it would be employing the notwithstanding clause for the first time. This follows the most recent and public threatened and actual uses of the notwithstanding clause by Ontario and Quebec in 2018. The notwithstanding clause is a ‘uniquely Canadian invention’ under section 33 of the Canadian Charter of Rights and Freedoms (Charter). It allows provincial and federal legislatures to pass legislation that either pre-empts judicial review or overrides judicial decisions that concern certain rights entrenched in the Charter for a period of up to five years (it can be renewed indefinitely).
In New Brunswick, the Minister of Justice Dominic Cardy announced they would be including this controversial clause in his second attempt at passing legislation to eliminate the ability of parents to exempt their children who attend public schools from having vaccinations, on religious, philosophical and other non-medical grounds. Cardy argued that he included the notwithstanding clause not because he believed Bill 11 was unconstitutional, but rather to avoid expensive court costs by pre-empting ‘an organized, well-financed lobby out there that’s intent on derailing efforts to protect vulnerable children’ (the ‘lobby’ referred to Vaccine Choice Canada).
The recent use of the notwithstanding clause in New Brunswick to mitigate financial concerns is a novel use of the clause. In this blog post, I argue that the use of the notwithstanding clause in Bill 11 is unnecessary and creates a dangerous precedent in relation to constitutional rights litigation.
First, the use of the notwithstanding clause to pre-empt any Charter challenges is unnecessary because there is a high likelihood the court would find the legislation is constitutional. Vaccine Choice Canada would have to first prove that there is a rights violation – a requirement not easily met. It would not be able to rely on the section 2 freedom of religion clause or section 15 equality clause. The anti-vaccination movement, although often associated with fundamentalist Christian organisations, is not in itself a protected religious practice that falls under section 2. Further, as it is not a religious practice nor associated with any other enumerated of analogous grounds of discrimination, a section 15 claim is likely to be unsuccessful. The sole ground might be section 7, which protects the right to bodily autonomy under the umbrella of the right to life, liberty and security. The right to bodily autonomy in medical decisions (regardless of their soundness) is a long-standing norm. However, even the claim that parents have a right under section 7 to exempt their children (who do not have capacity to make such a decision) from life-saving vaccines could be disputed, as it clearly goes against the ‘best interests’ of the child.
Furthermore, the claim would fail on the second step of constitutional evaluation – the reasonable limits clause. Section 1 of the Charter allows governments to reasonably limit constitutional rights if the limitation can be can be ‘demonstrably justified in a free and democratic society’. The government of New Brunswick would have no difficulty making the argument that such a rights limitation is justified under section 1. This would include the need to protect other children in public schools – who cannot be vaccinated due to medical reasons – from exposure to infection (through a phenomenon known as the ‘herd immunity effect’). In considering the proportionality of the rights limitation, the scientific evidence regarding the safety of vaccines would demonstrate that the risks of harm from vaccines is quite low.
Thus, in all likelihood the government of New Brunswick would not have to be concerned about Bill 11 being overturned by the courts as unconstitutional. Nevertheless, Minister Cardy still decided to use the notwithstanding clause to avoid costly litigation. This may create a dangerous precedent in Canada – one whereby claims of financial concerns justifies the subversion of the rights of Canadians to have their rights claims heard. Although in Canada one does not have the right to a preferred outcome, the ability and right to seek judicial review for the violation of rights is an important foundation of our constitutional democracy. If the actions by the government of New Brunswick begin to be emulated across Canada, it could start a dangerous precedent whereby individuals and groups are silenced and blocked of one of their most basic rights to judicial review under legitimate (or in some cases illegitimate) claims to financial concerns. The impacts of such a precedent extend far beyond the confines of New Brunswick public schools and should be evaluated in such a context.