COVID-19 Measures and Human Rights: Are Exemptions from Vaccination Protected Under the Human Rights Act?29 September 2021
FREDERICTON (GNB) – The following statement was issued today by Marc-Alain Mallet, director of the New Brunswick Human Rights Commission regarding mandatory vaccination and the Human Rights Act:
Since the beginning of the pandemic, the New Brunswick Human Rights Commission has strived to help New Brunswickers understand their rights and obligations in the context of this new and evolving reality. We have developed guidelines and FAQs, hosted presentations, and answered thousands of inquiries; and this in a genuine effort to clarify ambiguities and lessen people’s anguish.
In recent weeks, the commission has been experiencing a considerable and steady increase in COVID-19 related inquiries and complaints from the public, especially in relation to the province’s latest proof of vaccination and mandatory mask policies. Specifically, of the 318 inquiries received in the last month alone, 67 per cent were vaccine related and in the past week this number rose to 90 per cent. Many people contacting the commission have expressed concerns that the new COVID-19 measures violate their human rights and have sought the commission’s intervention to protect them against these alleged or perceived violations. Some have stated that the commission is not defending their rights.
This is far from the truth. It bears emphasizing that the New Brunswick Human Rights Act offers protection from discrimination in employment, housing, services, notices or signs, and professional or business or trade associations, based on 16 protected grounds enumerated in the act, in addition to sexual harassment and reprisal. If a person alleges that the government’s COVID-19 measures violate their human rights, the commission will only have authority to look into the alleged violation if it is related to a protected ground. Thus, if someone claims that it is their human right to be exempt from COVID-19 vaccinations, the claim must be based on the grounds of either physical disability, mental disability, or creed or religion. If a physician has certified that a person should not be vaccinated because of their disability, such a person can approach the commission for redress if an employer or service provider refuses to accommodate their disability.
However, to claim exemption from vaccination under the ground of creed or religion, a person must demonstrate (1) that their vaccination choice is based on a specific religious or spiritual belief system and (2) that they sincerely follow that religious or spiritual belief. In this context, solely stating a “personal belief”, “personal objection” or “personal conviction”, which is not based on a religious or spiritual belief, is not sufficient to be recognized as a religious right under the act as the ground of creed or religion is defined in human rights law.
The commission addresses all complaints of prima facie violations of the act through a comprehensive complaint mechanism, which every aggrieved person can access without prejudice or distinctions. However, it must be understood that the commission’s powers and jurisdiction are clearly bound by law, and its mandate is to administer, uphold, and apply the Human Rights Act. Alleged violations of the Canadian Charter of Rights and Freedoms are typically addressed through the court system, not by the Human Rights Commission.
Commission employees are extremely mindful that many individuals are feeling isolated and vulnerable in these uncertain times; they themselves have been equally impacted by the uncertainties and stress of the pandemic, but they have worked steadfastly to advise stakeholders and the public, and to protect people seeking redress from alleged human rights violations, including those allegedly impacted by COVID-19 regulations. Moreover, information about the scope of human rights protections under the COVID-19 restrictions and the commission’s process and mandate is being regularly updated on the commission’s website and social media pages.
It is worrisome that many people are approaching the commission to vent their frustrations or objections related to the pandemic, and not to inquire about legitimate human rights issues, which diverts commission resources from dedicated work on urgent human rights complaints. Also, it is especially regrettable that many callers have taken a disrespectful, even belligerent, attitude toward commission staff, even though employees are merely clarifying the scope of individual human rights and the commission’s powers in relation to the government’s COVID-19 regulations. We must all remain committed to move forward together, but this will only be achieved through mutual respect, understanding, and empathy, and while upholding the dignity and human rights of each other.