Vaccine passports and the Charter, marriage annulment and religion, and Traffic Court by MS Teams

This week on Legally Speaking with Michael Mulligan:

Anti-vaccination protesters have been holding up copies of the Canadian Charter of Rights and Freedoms and arguing that it prohibits restrictions on unvaccinated people entering restaurants, bars, gyms, and other locations. 

British Columbia, and several other provinces, are implementing systems to provide digital proof of vaccination against COVID-19 in parallel with restrictions on unvaccinated people attending to a range of non-essential service locations where transmission could occur. 

One of the Charter sections frequently reference by anti-vaccination advocates is section 7, which provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordant with principles of fundamental justice.” 

The legal meaning of this important protection is not so expansive as to prevent anyone from being encouraged or even compelled, to do anything they don’t like. 

The rights and freedoms protected by the Charter have legal meanings that are explained in court decisions considering them. It is necessary to review these decisions to determine how the language in the Charter is likely to be interpreted in future cases. 

In addition, Section 1 of the Charter says the following “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” 

It is therefore exceedingly unlikely that the Charter would be interpreted in such a way that would afford unvaccinated people the right to engage in non-essential activity that puts other people at greater risk of infection with COVID-19.

The Charter also doesn’t prohibit laws intended to protect individuals themselves. Examples of these include seatbelt law, helmet laws for bicycles and motorcycles, and laws that prohibit the personal possession of dangerous drugs. 

Also on the show, the BC Court of Appeal has expanded the circumstances in which a marriage annulment can be obtained. 

To obtain an annulment based on a failure to consummate a marriage, it’s necessary to establish that the failure to consummate the marriage was the result of a physical inability or psychological incapacity to do so. 

The case the Court of Appeal dealt with involved a Sikh couple who were married in a civil ceremony prior to live together because doing otherwise would be contrary to their religion. They put off consummating the marriage until they could also have a traditional Gurdwara ceremony, on religious grounds. Before that occurred, the couple separated.

The Court of Appeal concluded that sincerely held religious belief can constitute a “psychological incapacity” to facilitate an annulment. 

Finally, on the show, in response to ongoing COVID-19 challenges, the Provincial Court has now facilitated either the person disputing a Motor Vehicle Act ticket, or the police officer who issued it, applying to appear in court by use of MS Teams, or telephone. 

This change, like some others prompted by COVID-19, will add to general efficiency and will facilitate access to the court at a lower cost. People will be able to dispute tickets without needing to travel to the location they were issued or taking more time away from work. Police, who may be subject to transfer will be able to attend court at a lower cost. 

Follow this link for a transcript of the show and links to the cases discussed.