Religious Exemptions for Vaccinations: The Impact of Amselem

With mandatory vaccination policies (some of which are not exactly mandatory because they provide alternatives), those opposed to vaccines have been claiming religious exemptions. When people are dismissive of these claims, others immediately respond, “But what about Amselem?”, the Supreme Court of Canada decision that seems to allow a highly subjective determination of legitimate religious belief. But what does Amselem actually say and how does it relate to anti-vaccination claims based on section 2(a) of the Canadian Charter of Rights and Freedoms.

Although they may be difficult to assess, the limits Amselem impose even in determining whether the claim passes muster under the first stage of the Charter analysis can serve to make it difficult to bring fraudulent claims.

Furthermore, notwithstanding Amselem‘s giving extremely wide scope to freedom of religion claims (and in doing so, it is not really departing from prior Charter jurisprudence), it gives little guidance on how to place those claims within a broader social context. That the whole purpose of vaccination requirements is to address an issue of significant social concern limits the application of Amselem, once the first stage of Charter analysis has been completed.

Many mandatory vaccination policies have specified they are subject to medical and religious exemptions. Others have been more circumspect, allowing exemptions based on “human rights” without specifying which rights. However, both successful medical and religious claims should be rare. These can be brought, depending on the circumstances, under human rights legislation or the Charter. Here I concentrate on religious claims under the Charter. The Charter applies only to government actors or those with a nexus with government. Nevertheless, a challenge to legislation allowing or permitting mandatory vaccination requirements under the Charter may affect the capacity of private actors relying on that legislation to impose vaccination requirements.

(In passing, I note human rights commissions have stated explicitly that while genuine religious claims can infringe the legislation and possibly require accommodation, personal preferences or “a singular belief” does not fall within human rights religious protection: see, for example, here.)

Few organized religions include opposition to Covid-19 vaccines or to having a vaccination and they do not include the major religions (see a list here, for example). Under Amselem, this will not be determinative of a claim.