Do COVID-19 mandates violate my human rights?

In recent weeks, months, and years, there has been growing outcry from many people in Canada and abroad who claim their basic human rights have been violated by COVID-19 public health measures.

As tensions have come to a head in the form of disruptive protests nationwide, in some cases bleeding into the international realm, it appears the true meaning of basic human rights has become lost or confused with the idea of privilege for some.

The definition of human rights is quite simply put, if you look it up on various government, organization, or dictionary websites.

The Government of Canada defines human rights as “the rights to which persons are inherently entitled to because they are human beings.”

The Canadian Human Rights Commission offers the same definition, noting there are 30 different universal rights that citizens of the world have agreed we’re all entitled to, including the right to live free from torture, to live free from slavery, and to live free from all forms of discrimination.

Similarly, the United Nations notes human rights apply to all people, “regardless of race, sex, nationality, ethnicity, language, religion, or any other status.”

However, the definition is, for the most part, left quite general in some regards. There’s a reason for that.

Laws protecting human rights

“There are two laws that are directed at ending the mistreatment and oppression of people who have been marginalized for one reason or another,” explained barbara findlay QC, a lawyer with an extensive resume of fighting for groups subjected to human rights violations.

The two laws she’s referring to in Canada are the Charter of Rights and Freedoms, which has an equality rights section, and the human rights laws of the various provinces and territories. The former is applicable to governments or government agencies.

“It enables citizens to challenge the actions of government agencies if they discriminate against people,” findlay.

But, she notes in order to succeed in proving one’s human rights have been violated by government, a person has to show “that there was a denial by a government agency and that the denial was based on the fact that you are a member of an already-marginalized group.”

The Charter lists a number of groups and also leaves it open for people to make a claim, even if the group they identify with isn’t on said list.

Human rights laws do apply to the private sector. findlay says these laws state a person can’t be denied certain things like goods, services, or tenancy, based on a list of “protected grounds.”

“The protected grounds reflect the groups of people in Canada who have been historically marginalized,” she said.

findlay says leaving lists open-ended is important because “new forms of marginalization of people may either begin to happen or be acknowledged.” An open-ended list permits courts and other agencies to deal with those issues as they arise.

However, when it comes to the claims by some that they are being discriminated against based on their decisions around vaccination and mask use, findlay says people may find some difficulty in winning those arguments.

Are COVID-19 mandates violating my human rights?

When it comes to whether or not COVID-19 vaccine mandates or masking rules constitute a human rights violation, she says the short answer is “no.”

“The people who are alleging discrimination are not themselves marginalized in the manner that I described,” said findlay, adding these people are “not a group of people who are distinct because of the history of marginalization in Canadian society.”

Another challenge they may face is when they take their claims to court, as that would amount to a Charter argument. Those representing government could argue this group has not been historically mistreated in this country.

Despite this, there’s nothing preventing a person from going to court to argue their case. However, in findlay’s opinion, there’s little chance they would be successful in winning their argument that their human rights have been violated or that they are being discriminated against.

“A human right is not a right to do what you want,” findlay stressed.

To provide more context, here is the definition of discrimination as laid out by the Canadian Human Rights Commission: “Discrimination is an action or a decision that treats a person or a group badly for reasons such as their race, age or disability.”

findlay’s explanation of discrimination is much the same: The “prejudicial mistreatment of a person or group of people based on characteristics such as race, gender, or religion.”

The Charter of Rights and Freedoms in Canada protects people from discriminatory action by government.

Again, for government action to be considered discriminatory, “the action would have to add to the historic mistreatment of a group of people,” findlay notes, pointing to women, LGBTQ+, and Muslims as examples.

“And under the Charter, even if a law is discriminatory, a court may find that the law is valid notwithstanding the Charter if a government can show that the law is reasonable, and is justified in a free and democratic society,” added findlay.

“The second problem that they have is that all of the rights under the Charter are subject to a particularly Canadian piece … Section 1 of the Charter says notwithstanding all the rights in the Charter, if the government can demonstrate a kind of overriding social need for the legislation it has enacted, that legislation will be valid notwithstanding that it violates people’s rights.”

So given all of these explanations, are COVID-19 mandates discriminatory? Again, findlay’s short answer is “no.”

“To say that vaccine mandates are ‘discriminatory’ is misleading because it obscures the requirement that a discriminatory action contributes to the historic marginalization of a group of people,” she said, adding “it perpetuates the mistaken idea that if a government does something that affects you and you don’t like it, you can claim to be discriminated against.”

Human rights vs. privilege

Human rights are different from privilege. The key distinction between the two is the former is inherent to all people — no matter who they are.

Privilege, as defined by Cambridge Dictionary, is “an advantage that only one person or group of people has.” Privilege is normally influenced by factors such as position or wealth.

The differences are something Danny Ramadan, a Syrian refugee now living in Vancouver, understands from first-hand experience.

“You don’t have the ability to call any minor inconvenience, like wearing a mask or a public health matter like taking a vaccine, as a violation of your human rights … You’re making conscious decisions to endanger others by not wearing masks and you’re making a conscious decision to endanger your community by refusing to take the vaccine,” he explained. “It is your body, it is your choice but then there are consequences to your actions.”

Ramadan is a proud member of the LGBTQ+ community. Before he came to Canada in 2014, Ramadan ran an underground gay community centre out of his Damascus apartment. Given the laws and culture in Syria, the community met in secret.

FILE – The 2018 Evening in Damascus fundraiser. (Courtesy Danny Ramadan)

Because of who he is, Ramadan has endured time in jail in his homeland. It’s been his mission — before and after coming to Canada — to create a safe space for others like him to be able to express and be themselves openly.

“I think the first thing that comes to my mind when I see people carrying signs saying that their human rights are violated is to check themselves,” he said amid ongoing protests against COVID-19 mandates across Canada.

As someone who’s “lived through a dictatorship, who’s seen what the propaganda of a regime looks like, who’s seen what undercover police would do to you if you violated the propaganda of a dictatorship,” and who has experience living “under an actual iron fist of a government,” Ramadan says it’s frustrating to see people in Canada claim their rights are being trampled on by public health measures.

“It says that you’re ignorant, it says that you didn’t see enough of the world,” he added.

What frustrates Ramadan the most, he says, is that many people who claim their rights are being stripped of them likely aren’t looking for a meaningful conversation. He feels, instead, that they’re looking for attention.

“Somebody who lives under a dictatorship wouldn’t be able to speak out loud against that dictatorship … A person who’s living under a dictatorship wouldn’t be able to advocate for themselves, be it in the medical field, getting the best medical care; or be it in the educational field, getting the best education you can access,” Ramadan explained, noting these are freedoms every Canadian is afforded in this country.

“The fact that we can walk around Canada and have protests without fearing that an actual army would shoot you in the face is showing that you have that privilege.”

“Being inconvenienced is not the same as being discriminated against,” added findlay.

CityNews has reached out to the Canadian Civil Liberties Association (CCLA) for its take on vaccine and masking mandates, with relation to how they affect our human rights.

The CCLA has not yet responded to CityNews’ request for comment. However, in a post dated Aug. 17, 2021, the CCLA writes on the topic of vaccine passports that it has “flashed yellow lights at any effort by a Canadian government to mandate public disclosure of private health care information.” Still, the association notes that doesn’t mean it opposes “the measure without debate.”

Protestors in Ottawa speak out against COVID-19 measures and vaccine mandates in February 2022. CITYNEWS/Gavin Lumsden

“Governments choosing to implement proof of vaccination certificates … must consider and put in place legal and regulatory accountability mechanisms in order to assure meaningful accommodations for those medically unable to be vaccinated or other grounds covered by the relevant Human Rights code,” the CCLA writes in the August 2021 FAQ.

The group says implementation of mandates like vaccine passports must protect an individual’s privacy, be secure, be “single purpose (public health only)”, and happen only “after every resident has had equitable, meaningful access to vaccination opportunities in the neighbourhood they live or work in, and access vaccine education or information, should they wish it, in the language they understand.”

The CCLA goes on to say systems should not be digital-only.

It has recently announced its plans to sue the federal government over its invocation of the Emergencies Act, which was enacted in an effort to stop blockades by anti-mandate protesters across the country.

B.C. Human Rights Commissioner on mandates 

The argument of health mandates violating human rights has also been addressed by B.C.’s Human Rights Commissioner.

The website of the commissioner, who was not available for an interview with CityNews, says, “masking and vaccination requirements can and must remain consistent with B.C.’s Human Rights Code.”

However, it is noted that these kinds of mandates “are not inherently a violation of human rights.”

“Human rights are not absolute,” a section of B.C.’s Office of the Human Rights Commissioner website reads. “Reasonable limits can be placed on rights when there are good reasons that justify those limits. Protecting public health can be a valid reason for limiting rights.”

Furthermore, the commissioner’s office answers questions around whether B.C.’s Human Rights Code prohibits discrimination against people who are unvaccinated, saying the code “protects against discrimination on the basis of vaccination status only when someone is not able to be vaccinated because of a disability or another part of their identity protected from discrimination under the Code.”

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The commissioner says, however, that a person who decides to not get vaccinated “as a matter of personal preference” would likely not have grounds for a human rights complaint if they are treated differently because of that decision.

“This is especially true where that choice is based on misinformation or misunderstandings of scientific information.”

When it comes specifically to B.C.’s vaccine passport system, it’s in the commissioner’s opinion that the program is consistent with the province’s Human Rights Code.

“A medical exemption process is in place to protect the rights of individuals who cannot be vaccinated due to a medical condition or disability,” the commissioner notes, adding “the requirement to provide proof of vaccination is generally justified from a human rights perspective and will result in increased protection for those among us who are most vulnerable to the virus.”

In a statement posted early on in the pandemic, B.C. Human Rights Commissioner Kasari Govender stressed the importance of protecting human rights.

“Human rights are never more important than in times of crisis. It is precisely when they are hardest to fulfill that they are the most important,” she said in the video. “It is in these challenging times that it becomes critical for us all to know our human rights, for us to understand the scope and protections in B.C., and for all of us to place human rights at the centre of our decision making.”