Rupa Subramanya: India’s courts get it right on vaccine mandates — and Canada doesn’t

The Trudeau government’s refusal to budge on its vaccine mandates has increasingly little to do with public health

Author of the article:

Rupa Subramanya

Publishing date:

May 05, 2022  

On May 2, in a landmark judgment, India’s Supreme Court, the highest court in the land, ruled that “no one can be forced to be vaccinated” and that “bodily integrity and personal autonomy” are protected under the law as a constitutional right. Citing emerging scientific opinion “which appears to indicate that the risk of transmission of the virus from unvaccinated individuals is almost on par with that from vaccinated persons,” the judicial bench went on to argue that since infection rates are currently low, restrictions imposed on the unvaccinated, including those that curtail their freedom of movement and access to welfare and other services, are not “proportionate,” and urged organizations that imposed these restrictions to review these measures and modify them as necessary.

The court was responding to a plea filed by a former member of the country’s national advisory group on immunization, seeking disclosure on vaccine clinical trials and the posting of vaccination-adverse events data. The plea argued that Indian states’ legislation mandating vaccination for government employees and as a precondition for accessing welfare and other services, including travel in public transport, was a violation of basic individual rights and, therefore, unconstitutional.

The federal government in India itself has not issued any vaccine mandates and has always maintained that it is a voluntary, individual choice. The judgment was rendered even more extraordinary by the fact the directives were limited to the “present situation alone,” and the court upheld government restrictions on the unvaccinated “if the situation so warrants,” thereby striking a delicate balance between a person’s right to choose and the government’s responsibility in protecting public health.

The judicial bench … urged organizations to review these measures

What is fascinating is that this extraordinary Supreme Court judgment in India is in the context of a Westminster system, a system originating in the United Kingdom but also, of course, shared by Canada. Unlike in the United States, with its tradition of activist courts that are not shy to push back against the executive or legislature, and are highly protective of constitutionally enshrined civil liberties, the Indian judicial system, like the British and Canadian systems, tends to exhibit a culture of deference to Parliament. While India’s Supreme Court has clearly circumscribed the extent to which the federal or state governments can impinge on individual rights in the interest of public health, it’s noteworthy that nothing comparable has occurred in Canada. This is striking, given the similarities between the two countries’ judicial systems.

Why haven’t we seen greater pushback from the courts in Canada against federal and provincial vaccine mandates? While there have been numerous challenges at both the federal and provincial levels, arbitrators have been exceptionally deferential to the mandates, agreeing, in particular, with the federal government’s rationale that vaccine mandates are justified to protect the safety of the workplace. Given this, and the fact that courts are loath to intervene, federal government vaccine mandates in Canada have remained almost entirely intact.

Most recently, for example, arbitrators ruled against the Canadian Union of Postal Workers in that union’s national grievance against Canada Post’s mandatory vaccination requirement. It’s very unlikely that any future such challenge will have any chance of success. Lifting vaccine mandates will, therefore, ultimately be left to the discretion of governments and will not be in the hands of the courts or (nominally) impartial arbitrators.

The niceties of our legal system’s culture of deference aside, Canada is increasingly an outlier amongst comparable advanced Western democracies in how our governments, especially the federal government, are handling the end game of the pandemic. On May 2, Switzerland, and Greece at the same time, lifted all remaining pandemic-related travel restrictions. Visitors, and returning residents, no longer need to show proof of vaccination, proof of recovery, or a recent negative test.

Even New Zealand, which had one of the strictest pandemic responses in the world while pursuing a “zero Covid” policy, has not required domestic travellers to provide proof of vaccination or a negative COVID test to fly domestically since April 13, and, as of May 1, international travellers no longer need to show proof of vaccination to board a flight.

Given that other advanced Western countries are walking back pandemic rules and clearly have the end game in sight, why is the Trudeau government not easing its vaccine mandates? It’s becoming increasingly clear that, at this point, it’s not about the science. The rationale for mandates was originally to curb transmission of the virus, but, in the wake of the highly transmissible Omicron variant and its newer sub-variants, this renders vaccine mandates absolutely nonsensical, given that the vaccinated — even those with three or even four doses — are becoming infected and are transmitting the virus. This was even recognized by the World Health Organization in an April 2021 policy brief. For whatever it’s worth, the WHO says vaccine mandates should be used “only as an absolute last resort.” Many countries have gotten the memo — but not the Trudeau government.

Bizarrely, Transport Minister Omar Alghabra, responding to a question in the House of Commons, defended travel-related vaccine mandates by pointing to the life-saving properties of vaccines. This is disingenuous, at best. While someone who is vaccinated is likely going to experience less severe symptoms than someone who is unvaccinated, and more likely to avoid serious illness or mortality, travel-related vaccine mandates were never about the seriousness of symptoms but about curbing transmission. With the advent of Omicron, this rationale has entirely fallen away.

This rationale has entirely fallen away

The bottom line: the Trudeau government’s refusal to budge on its vaccine mandates, which no longer have a sound public policy basis, is all about politics and has increasingly little to do with public health. The mandates are a perfect wedge issue for the Liberals, allowing them to continue to demonize the unvaccinated. While no one will admit it, of course, nothing could be better politically for the Liberals than, say, an anti-vaccine protest turning violent, as an increasingly demoralized, marginalized and frustrated group finds its patience wearing thin as they continue to face taunts from the government and its cheerleaders in the commentariat. There is also no better way to smear political opponents, especially in Conservative ranks, who have gone on record to show their sympathy and support for anti-mandate protesters, such as the erstwhile Freedom Convoy in Ottawa.

Those protests were almost entirely peaceful, despite the aggressive pushback by police, especially after the Trudeau government invoked draconian emergency powers. The recently concluded Rolling Thunder convoy, also in Ottawa, with a different set of organizers, was also largely peaceful, with law enforcement out in full force. However, according to some individuals who attended the event, the protesters seemed a little more willing to push the edge of the envelope when facing off against the police than during the Freedom Convoy. Again, according to some present, the more recent protest had a darker edge than the previous one, although it remained peaceful. But it’s pretty clear that, with each subsequent protest, those involved are increasingly fatigued, demoralized, and perhaps have less to lose if they more directly confront law enforcement.

The predetermined Trudeau government narrative, that the Freedom Convoy protesters were a despicable group of violent insurrectionists and white supremacists, was proved patently false. 

However, as the government digs in its heels and continues to demonize those unwilling to fall in line with its illiberal mandates, the popular narrative attempting to delegitimize the protesters as violent may end up becoming a self-fulfilling prophesy — and if that happens the buck, and the blame, stops with the Trudeau government.

20 thoughts on “Rupa Subramanya: India’s courts get it right on vaccine mandates — and Canada doesn’t

  1. Canada’s Charter was a major accomplishment for the humanity of the humans under Canada’s jurisdiction, gravely compromised by its revocability. Rights exist to protect the human mind from coercion. There is no justification for its revocability. Until it is amended to remove this, we will forever be vulnerable to an emergency of some kind in order to be abused by fetishists of political power and their pie in the sky Utopian ideas.

    Liked by 2 people

  2. Appreciate this message from “Mother India” —
    having visited there many moons ago, we explored
    and got to learn their justice system and we found it
    quite robust and right! … this trip was a group
    study exchange Canada/U.S. and we had attorneys
    representing each nation.

    Thanks kindly for your sharing — here’s a wee gift of
    poetic inspiration du jour:

    “I AM the Master of my fate, I AM the Captain of my Soul.”
    (from Invictus – William Ernest Henley, poet)

    Again, many thanks for all you are doing in keeping us
    informed and up-to-date!

    Liked by 1 person

  3. There is no doubt in my mind that Justin Trudeau and Chrystia Freeland and any Canadian for that matter, who are beholding the the WEF, that they are traitors to Canada.

    Liked by 5 people

  4. Many groups of professionals including nurses,Dr’s Firemen and Paramedics and certainly hundreds of others have protested against mandated vaccination and suppression of human rights but the fear,corruption.propoganda and Socialistic Government under Trudeau has so far crushed any opposition.Prolonging this disaster provides even more harm to rights.Trudeau has a very good reason to extend this even further ,I strongly suspect very close ties to Pfizer and other Pharmeceuticals.

    Liked by 1 person

  5. With the Liberal/NDPs holding the chains in Canada until 2025 we are screwed. The only hope we have is that this coalition falls apart, a confidence vote fails, and a new election is called soon. The Liberal party has driven its heels into the sand and are not budging one inch. The only thing we, the freedom loving people in Canada, have going for us is that evil ultimately consumes itself and that, at some point, the Liberal/NDP coalition will do the same.

    Liked by 2 people

    • Then what? Canadians voted the same last fall as they did in 2019. What will change? The 52% that voted for the triumvirate of Socialist./Communist/Fascist will do the same next time.

      Like

      • Yes Sir, that in itself is more dangerous than Justin Trudeaus Narcissism. Trudeau supporters see him and his minions as Gods gift to Canada. However never give up hope. The way to beat them is with their own defence eg : Their continued reliance on science and their PHO could very well be their undoing. Out of the gate the efficacy of the vaccines and their diminishing potency of antibodies must show at some point the antibody levels to be nil. Meaning that without booster shots those vaccinated will be unvaccinated at some point. The drive to encourage boosters is running low with only 48% of total population.The disenchanted one time majority could very well see the light and vote accordingly.

        Liked by 2 people

      • My problem is at present the parties in the House of Commons are all tainted and offer little hope for meaningful change. At first we must try those who are guilty for the crimes of the last two years —otherwise nothing will really change.

        Liked by 2 people

      • Well Bruce, for starters I am not sure we had an election or a (s)election. Did you know 205,000 votes were not counted in the 2021 election?

        https://tnc.news/2022/02/01/elections-canada-says-205000-ballots-not-counted-in-2021-election/

        Not saying they were all Conservative votes but this is still a major problem. I do not believe out electoral system is as secure as we might think. The recent documentary 2000 Mules comes to mind and is as frightening as anything else that has happened in the last 2 years in my honest opinion.

        Like

    • But the other parties in the House of Commons are no better. None has committed to making their party more transparent like publish their financial statements. PPC os the only open , transparent party with clear policies.

      Liked by 2 people

  6. I will add that Japan has never had an injection mandate and in fact their Ministry of Health encourages people NOT to ask others of their health status. On ~August 13, 2021, Japan allowed the use of ivermectin. Canada’ mortality rate (deaths/day/100k) from the Delta variant was 4 TIMES that of Japan’s! Japan has almost as many people over the age of 65 (36 million) as all of Canada (38 million).

    Liked by 2 people

  7. “pointing to the life-saving properties of vaccines’
    And yet no one in the world can point to any transmission whatsoever on an aircraft. The USA removed the mask mandate almost 3 weeks ago; no transmission from not wearing a mask. I took 2 flights in the last 2 weeks, no concern whatsoever to living life as I was before the rules.

    Liked by 2 people

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