'There's quite a bit of scope to do this in a time of pandemic' legal expert says of vaccine mandates

Constitutional law expert offers view on vaccines Anchor Paul Hollingsworth speaks with Wayne MacKay, professor emeritus at Dalhousie University's Schulich School of Law.

HALIFAX — We have entered the phase of the COVID 19 pandemic in which the vaccine is being mandated and proof of vaccine being required at work, public places, restaurants and businesses.

It has caused a lot of reactions and support for some outrage, and even some questions surrounding legality.

Legal and constitutional expert Wayne McKay, a professor emeritus at Dalhousie University's Schulich School of Law, says in most cases, mandating vaccines can be done and expects it would withstand any legal challenge.

"There's quite a bit of scope to do this in a time of pandemic and crisis," MacKay told CTV anchor Paul Hollingsworth in an interview Friday evening.

The key to a vaccine mandate withstanding a legal challenge depends on how reasonable it is, because rights are not absolute and government can impose reasonable limits on them and interfere with individual rights as little as possible.

"People pretty well accept that given the crisis that is COVID-19, they have a legitimate objective to try to prevent the spread," MacKay said. "So the only real question is: 'Are they doing it in a way that properly balances public health, to the general population and limiting individual rights as little as possible?' And as long as they do that, most cases where they are challenged, they're not likely to succeed."

While some call it overreach to mandate vaccines, MacKay says determining that depends on the facts of the situation.

"If, for example, you worked exclusively from home and had no public contact and they tried to require you to be vaccinated, it seems to me that would be pretty hard to justify, and it's much more easy to justify it in certain sectors where there's a vulnerable population such as in hospitals or schools, for example, especially with kids under 12," MacKay said. "So if they're protecting a vulnerable population, if there's a lot of public contact, then I think they probably have a pretty good chance of justifying it."

The other aspect of vaccines is the discussion around them – which has become pretty heated, especially on social media.

The Canadian Charter of Rights and Freedoms guarantees freedom of speech, but as with any right it is not absolute.

"I've rarely seen such emotional and divisive, an issue is the vaccines, and as you say effect, particularly on social media that's played out in a pretty robust way, but free speech is not absolute," MacKay said. "They've said from the beginning, you can't cry 'fire' in a crowded theatre, and I think that's really the bottom line. In exercising any individual rights, including freedom of speech, you have to do it in a way that does not interfere with the health and safety of the people around you."

You can watch the full interview here.