Smithers District Chamber of Commerce - Legal Note (COVID Constitution FAQ’S) to Support Business
The Chamber of Commerce recently held a virtual townhall on October 25, 2021. This Chamber Network zoom session was an invaluable opportunity to hear from a panel of speakers, address concerns, highlight business supports required and share positive news. On the session, Sean Rowell of Perry & Co shared some insight and considerations on COVID Constitution. This is a result of Chamber members and local businesses receiving *notice* letters (templates) that have been circulated from www.action4canada.com. *Please note, these threatening letters do not serve legal merit. The following are some of Sean’s excellent speaking points.
What is the Canadian Constitution (the “Constitution”)?
The Constitution is not just one document, it is made up of various legal documents (legislation, acts, statutes) that build the Constitution and are what governs Canada’s legal framework. It sets out the different roles of the three branches of the Canadian government (executive, legislative, and judicial) and establishes the division of power between the federal and provincial governments. Some areas of our society are governed by the federal government whereas other areas are governed by the provincial government.
What level of government is responsible for vaccination passports and mask mandates?
The provincial government has authority over healthcare decisions. Each Province has control over whether vaccination passports and/or mask mandates are to be enforced in various settings. The rules are set by the Public Health Orders, under the Public Health Act. The provincial government also has jurisdiction over virtually the entirety of the private law as well as particular industries or trades, such as restaurants. Since the Public Health Orders and the operation of private businesses within the province are solely within provincial jurisdiction, other legislation such as the Federal Emergencies Act, the Coronation Oath, the Canadian Human Rights Act, and the Nuremberg Code are not directly applicable to private businesses operating in Smithers with respect to following the Public Health Orders.
What is the Charter of Rights and Freedoms (the “Charter”)?
The Charter makes up part of the Constitution. It sets out the rights and freedoms Canadians can expect their government to recognize and not infringe upon. It manages the relationship between the government and its citizens. The Charter does not directly govern the relationship between individual citizens – that is the purview of our Human Rights laws. However, while the Charter and the rest of the Constitution are the Supreme Law of Canada, the rights and freedoms enumerated in the Charter are not absolute and they have limitations. Section 1 of the Charter states that the rights and freedoms within are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. This means that a breach of the Charter can be justified under section 1 of the Charter. For example, section 2 of the Charter lays out everyone has the fundamental freedom of expression. However, this freedom can be limited by laws against child pornography or hate speech. Such laws have been found to be demonstrably justified in a free and democratic society.
Do the Public Health Orders violate the Charter?
The answer to this question would be determined by the judicial level of government (the courts) were the Public Health Orders to be challenged by a member of society. However, certain Public Health Orders have been found by the courts to violate the Charter but saved by section 1. The Vaccine Passport order (the “Order”) specifically recognized that constitutionally-protected interests include the rights and freedoms guaranteed by the Charter, including the right to life, liberty and security of the person, along with freedom of religion and conscience, freedom of thought, belief, opinion and expression. The Order set out that “These rights and freedoms are not, however, absolute and are subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. These limits include proportionate, precautionary, and evidence-based restrictions to prevent loss of life, serious illness, and disruption of our health system and society. When exercising my powers to protect the health of the public from the risks posed by COVID19, I am aware of my obligation to choose measures that limit the Charter rights and freedoms of British Columbians less intrusively, where doing so is consistent with public health principles”
Are businesses responsible if the Public Health Orders violate the Charter?
The Charter governs the rights of Canadians vis-à-vis their government, not between a restaurant and its patrons. Section 94 of the British Columbia Public Health Act also protects those following the Public Health Orders from the actions of others by setting out that a person must not take an adverse action against another person because the other person, acting in good faith, complies with, or assists in carrying out, an order made under the Public Health Act, which includes the PUBLIC HEALTH ORDERS.
Does following the Public Health Orders violate the Human Rights Code of British Columbia?
Business in British Columbia are not allowed to discriminate on the basis of a prohibited ground in the provisions of services normally available to the public. Prohibited grounds include: age, family status, mental disability, religion, ancestry, gender expression, physical disability, sex, colour, gender identity, place of origin, sexual orientation, criminal convocation, martial status, political belief, source of income, and race. An ideological opposition to or distrust of the vaccine is currently not a prohibited ground. Under the Public Health Act, anyone who believes they are being discriminated against due to enforcement of the Public Health Orders must not take an adverse action against another person because the other person, acting in good faith, complies with, or assists in carrying out, those Public Health Orders.
What are the penalties for a business that does not comply with the Public Health Orders?
Businesses can be issued a violation ticket for non-compliance. Violation tickets of $2,300 can be issued to: (1) owners, operators, and event organizers who fail to check a person's proof of vaccination for service and access to the venue or space; (2) event organizers who host a non-compliant event (such as an event that exceeds the capacity limit); and (3) owners, operators, and event organizers if they do not meet the requirements of the Food and Liquor Serving Premises order.
What should a business do to ensure it is following the law?
Continue to follow the Public Health Orders by keeping up to date on what is required from both a public health as well as workplace health and safety perspective. Ensure the business makes what accommodations it can, where it can, for those who chose not to be vaccinated, as they too are members of the community and should be treated with respect.
What should a business do if it receives a notice that it is in violation of the Charter by complying with the Public Health Orders?
Ignore any form letters received. If challenged by a member of the public, politely ask them to take it up with Dr. Henry and MLA Nathan Cullen.