|” style =”margin: 5px 15px 0 0px; border: 1px solid # 999; width: 150px;”/>|
On Thursday, September 9, 2021, the Los Angeles Unified School District, the second largest in the United States with 600,000 students, voted to require COVID-19 vaccines for all students aged 12 and over attending school in person. All eligible students must be fully immunized upon returning from their winter vacation, which runs from December 17, 2021 to January 11, 2022. Vaccines are not required for students opting for home schooling .
In August 2021, the United States Food and Drug Administration granted the Pfizer vaccine full approval for use in children 16 years of age and older. It can only be used for 12 to 15 years for which there is an emergency use authorization. Immunization offers the strongest protection available to students. Recent surveys suggest that only half of American parents say they are likely or definitively to vaccinate their children against COVID-19. (See 2021 Education Next investigation).
Parents can and should make decisions for their children. What parent doesn’t? They are presumed to be in the best position to make decisions in the best interests of their child. Corn parents do not own their children. Children have individual rights. In the case of B (R) c. Children’s Aid Society of Metro Toronto  1 SCR 315, implying the right of a parent to refuse a blood transfusion for his child, the Supreme Court of Canada concluded that the choice of medical treatment for his child is a “fundamental aspect” of freedom of religion, but the court also reiterated that, like all Charter rights, freedom of religion is not absolute (see para. 85).
The Canadian Charter of Rights and Freedoms (or Charter) is part of the Canadian Constitution. Her 40th birthday is almost here. The freedoms we enjoy include freedom of conscience and freedom of religion. Most of the rights guaranteed by the Charter are “negative” rights. If the government does something that hinders them, then these rights can be violated. Freedom of religion is protected by letting people practice religion as they wish, unless the government does something that threatens their religious practices.
No right is absolute. We now know, after these 40 years, that there must be a balance between the rights of an individual and the greater good of society. Section 1 of the Charter says that all Charter rights are “subject only to reasonable limits prescribed by law which can be demonstrably justified in a free and democratic society” (see R. c. Big M Drug Ltd.  1 RCS 295, R. c. Oakes  1 SCR 103 and more recently R. c. NOT. 2012 SCC 72 which was an example of balancing a witness’s right to freedom of religion (s. 2 (a) of the Charter) and an accused’s right to a fair trial (ss. 7 and 11 (d) of the Charter).)
Currently, children under the age of 12 do not have the opportunity to be vaccinated against the coronavirus. This option may exist for ages 12 and over. For the parents of these children, should there be an option? Are we waiting for the “pandemic of the unvaccinated” or are we finally tackling the apparent delta variant head-on?
In the Pupil Immunization Act Ontario (RSO 1990, c.1.1), in the “Definition” section, a “declaration of religious conscience or belief” means an affidavit in the form prescribed by a relative of the person named in the declaration that immunization conflicts with the parent’s sincere beliefs based on the parent’s religion or conscience. There is of course also a “medical exemption declaration”.
Article 3 states in part:
Same, declaration of conscience or religious belief
(3) Subsection (1) does not apply to a parent who has completed an immunization education session with a medical officer of health or delegated medical officer of health who meets prescribed requirements, if any, and who has filed a declaration of conscience or religious belief with the appropriate medical officer of health.
In addition to adding compulsory vaccination to this legislation (to be introduced gradually), I would advocate for the elimination of the religious exemption, even beyond the secondary level. But this is another story. Making in-person school attendance conditional on vaccination was seen as the best way to ensure that citizens are vaccinated. (See Douglas Diekema, “Personal Belief Exemptions from School Vaccination Requirements”, 35 Annual public health report, 275, 278 (2014).
The Education Act Ontario clearly provides the power to make school attendance compulsory and require that students who attend school be in good health so as not to endanger others. Your religious exemption may well expose me to great health dangers. COVID-19 is highly transmissible and fatal. Vaccines are safe and effective. Vaccines are a justifiable intrusion in our autonomy, even in our bodily integrity. We may have the fundamental right to make our own decisions about health care, but these rights are not absolute. They do not include the right to harm others.
I would agree that any mandate for vaccination should have exceptions for those for whom the vaccine is medically contraindicated, such as those who are allergic to it.
Religious freedom is not an unfettered license to inflict harm on others.
Following the latest measles outbreak in New York State, Governor Andrew Cuomo signed in 2019 to remove the religious exemption for the state. Supporting the repeal, James Skoufis, one of the law’s sponsors, said in part: “Let’s be clear: there is not one religious institution, not one, that denounces vaccines. Curbing the spread of COVID-19 is “unquestionably a compelling interest”. (See Roman Catholic. Diocese of Brooklyn v. Cuomo 141 S. Ct. 63 to 67 (2020) (by curiame). See also Prince c. Mass. 321 US 158, 166-167 (1944) and even earlier in the United States, Zucht v. King 260 US 174, 176 (1922) citing Jacobson v. Mass. 197 US 11 (1905) and last month, August 2021, Klaassen v. Trustees of Indiana Univ. 7 F.4e 592 (7th Cir. 2021)).
Is it discriminatory to refuse a religious accommodation exception to vaccination if Can the requested exception be reasonably and simply accommodated? What constitutes “religion”? Beliefs such as “My conscience forbids me to get vaccinated”? or “My religion tells me that this vaccine is experimental”? Or “Gd makes the rules for my body, not for people”? Our courts have adopted a subjective and perceived sincerity test to determine whether a particular practice or belief falls within freedom of religion. (See for example R. c. Edwards Books and Art Ltd.  2 RCS 713, Alberta v. Hutterite Brothers of the Wilson Colony 2009 SCC 37, and Northcrest Union v. Amselem 2004 SCC 47).
School staff lost to COVID-19, known as @losttocovid on Twitter, keep a daily log of educators who died from COVID-19.
The reality should be that there aren’t too many. A name, a job title, a date of death, a black and white photograph, it does not reflect the reality of mourning. Students who have lost siblings, parents, grandparents to COVID-19 should not be forgotten.
Irreparable harm and the public interest means the removal of the religious exemption.
Marvin Zuker was a judge of the Ontario Court of Justice, where he presided over small claims, family and criminal courts from 1978 until his retirement in 2016. He is an associate professor at the Institute of Ontario Educational Studies / University of Toronto, where he teaches education law. Zuker is the author and co-author of numerous books and publications, including The law is not for women and The law is (not) for children.
Interested in writing for us? Find out more about how you can add your voice to The Lawyer’s Daily, contact the editor of the analysis Yvette Trancoso-Barrett at Yvette.Trancosofirstname.lastname@example.org or dial 905-415-5811.