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Dehaas: Mandating vaccines on airlines no longer makes sense, and may be unconstitutional

National Post: 'O’Toole and Trudeau’s positions were both legally defensible in August. But that may no longer be the case. In fact, it could be argued that the federal government’s vax-to-fly policy is no longer compliant with the Charter of Rights and Freedoms.


'Back in August, O’Toole could argue that Trudeau’s vaccine requirement limited the charter-protected rights to bodily autonomy (protected by Section 7), freedom of conscience (protected by Section 2) and mobility (protected by Section 6), and that such serious infringements required accepting reasonable alternatives, like testing, that could still achieve the government’s goal.


'Trudeau could argue that testing was not a reasonable alternative. A test taken hours or days before boarding would not have been as effective as requiring everyone on board to have two doses of vaccine. What’s more, the harms of forcing the unvaccinated to choose between their right to free movement and conscience or bodily autonomy were outweighed by the majority’s interest in safely travelling.


'In other words, the policy was harsh but defensible under Section 1 of the charter, which allows for reasonable limits on rights if they can be demonstrably justified in a free and democratic society.'

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