New Brunswick uses notwithstanding clause in 2nd bid to pass vaccination bill

New Brunswick's education minister is making rare use of the Canadian Constitution's notwithstanding clause to ensure his new legislation on mandatory vaccinations won't be overturned by court challenges.

Dominic Cardy introduced the bill, his second attempt to eliminate non-medical exemptions to vaccination rules, in the legislature on Friday morning.

Section 4 of the bill says the legislation is "declared to operate notwithstanding" 10 provisions of the Charter of Rights and Freedoms.

That means the bill can't be struck down by the courts even if it contravenes those sections of the charter. Among those sections are provisions that protect freedom of religion and equal rights regardless of religion.

Cardy said the bill is intended to pre-empt what he calls "an organized, well-financed lobby out there that's intent on derailing efforts to protect vulnerable children."

He told reporters the clause will avoid "expensive court costs" resulting from charter challenges "by folks who've got nothing but conspiracies and medieval fantasies to base their arguments upon." 

The bill would eliminate the ability of parents to exempt their children attending public schools from vaccinations on religious, philosophical and other non-medical grounds.

Anti-vaxxers vowed to fight it in court

During three days of hearings in August on an earlier version of the bill, several anti-vaccination activists and parents said it was unconstitutional. Others claimed the science was not conclusive on vaccines and made other debunked assertions. 

One of the opponents, Ted Kuntz of Vaccine Choice Canada, vowed that his group would fight the bill to the Supreme Court of Canada if it passed.

But Cardy's new version using the notwithstanding clause would make that impossible.

In a statement, Vaccine Choice Canada's Gisele Baribeau called the new bill "an egregious attempt to impose state and pharma control over Canadian children." Vaccine Choice Canada is a not-for-profit group that has spread anti-vaccination misinformation; its stated goal is to express concerns about vaccine safety.

The Public Health Agency of Canada says the risks associated with vaccines are very low.

Baribeau said Cardy is clearly not interested in parental rights or medical freedoms and called on MLAs to vote down the bill.

The notwithstanding clause was included in the charter as a political compromise when it was adopted in 1982. It was designed to give legislatures the opportunity to override some judicial interpretations of the charter. 

At the time, Premier Richard Hatfield said he would do "everything possible to urge the Legislature of New Brunswick not to use that opportunity, consistent with my firm view that if we are going to have rights, they must be shared by all Canadians."

The clause has been used only a handful of times by provinces, except when the Parti Québécois government in Quebec added it to every piece of legislation from 1982 to 1985 as a symbolic protest against the charter's adoption over its objections.

University of New Brunswick law professor Kerri Froc says the clause wasn't designed to protect laws from legal challenges in advance but to give governments an option if a law were struck down by the courts.

"I'm not a fan of these pre-emptory references to the notwithstanding clause," she said. "It used to be seen as kind of the nuclear option. Now it seems more like the cost of doing business."

The clause can only be used to supersede Section 2 and sections 7 to 15 of the charter, and its use expires after five years.

That means a future New Brunswick legislature would have to invoke it again every five years for it to remain in place. Froc said that expiry date is meant to ensure politicians don't use it too casually.

Far from a sure thing

It's not clear the bill will pass because Premier Blaine Higgs is allowing all Progressive Conservative MLAs a free vote on the bill, including cabinet ministers.

The Liberals will also be allowed to vote freely on this bill and the Green Party and People's Alliance already allow their MLAs free votes. 

At least two opposition MLAs are already saying they're reluctant to support any legislation that suspends charter rights unless there's a clear need for it.

"It's a slippery slope we're going down here," said Liberal MLA Rob McKee. "It's a dangerous precedent we're setting. It's never been used in New Brunswick before." 

McKee said he supports vaccinations and during the August hearings appeared to lean toward supporting the original bill.

But on Friday he said the province still doesn't have a "full and complete picture" of vaccination rates among schoolchildren, so the government now has a higher burden to justify a bill that suspends charter rights. 

"I would ask the government to come back with legislation that is charter-compliant without having to resort to this measure," he said.

Green MLA Megan Mitton, who was hesitant about supporting the bill in August, noted some public health officials have refused to endorse a mandatory vaccination policy and said the use of the notwithstanding clause adds to her concerns.

"I really would like to see this type of legislation be a last resort," she said.

"I would like to see the government show the evidence that they have done all the other things that public health officials recommend doing before we get to the point of implementing something like this."

Spotty records

In August, the province had complete immunization records for only 82 per cent of students. Figures provided Friday show a large number of schools still lack verified immunization records.

Cardy's new bill sets out a process to validate that requests for medical exemptions from the mandatory policy are legitimate.

It would take effect in September 2021, giving time to public health officials to establish a provincewide electronic registry of vaccination records. 

Cardy introduced his original bill in the spring after two outbreaks of measles in the Saint John area and whooping cough in the Fredericton area, though he said he'd been working on it before that.

Opposition MLAs, who make up a majority of the legislature, voted to send the bill to the law amendments committee for public hearings.

At those hearings, dozens of anti-vaccination activists and other parents spoke against the bill as an infringement on their freedoms. 

That testimony prompted MLAs from all four parties on the committee to waver on supporting the bill as drafted. Several cited the lack of definitive statistics on vaccination rates among schoolchildren.