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Canadian Province Walks Back No Jab, No Food Mandate After Legal Threats

Neil lives in Canada and writes about society and politics.
Published: December 18, 2021
A challenge by the Justice Centre for Constitutional Freedoms, a Calgary-based constitutional law watchdog, forced the Province of New Brunswick to walk back an edict allowing grocery stores to require vaccine passports
A teenager wearing a graduation gown is seen throwing her cap in the air in the middle of the street lined with blooming cherry blossoms on March 27, 2021 in Vancouver, Canada. The Province of New Brunswick was forced to walk back its no jab, no food mandate after threats of legal challenges by a non-profit constitutional law watchdog. (Image: Andrew Chin/Getty Images)

The Canadian Province of New Brunswick has walked back a public health mandate that gave grocery stores the green light to deny service to the unvaccinated after a non-profit constitutional law organization threatened legal action on the basis of the Charter of Rights and Freedoms. 

On Dec. 3, the Government of New Brunswick unveiled its Winter Action Plan (WAP) in response to a small rise in Coronavirus Disease 2019 (COVID-19) cases. While the WAP did not expressly grant grocery stores the right to check vaccine passports at the door, it instead gave owners of businesses not explicitly required to require health status paperwork, such as essential businesses and regular retail outlets, a choice between reducing capacity and enforcing social distancing or scanning vaccine status QR codes to continue to operate as normal. 

While the option was extended to regular retail stores and shopping centers, no provision was included forbidding grocery stores as an essential service from falling under the ruleset. 

On Dec. 7, the Justice Centre for Constitutional Freedoms (JCCF), a Calgary-based constitutional law non-profit watchdog, wrote to New Brunswick’s Minister of Justice and Public Safety, Hugh Flemming, expressing concerns that the Province’s order was in contradiction of both international human rights laws and the Canadian Charter of Rights and Freedoms.

The JCCF cited the Minister’s exact health order, which was worded as follows: 

“In all public indoor spaces where proof of vaccination is not mandatory, whether mandated by law or by the owner of occupier of the property, occupiers and managers are required to take every reasonable step to require physical distancing of two meters or more between patrons who do not reside together… 

For greater certainty: the owners and occupiers of premises in which proof of vaccination is not required by law are free to choose between making proof of vaccination a requirement of entry to their premises and making distancing mandatory in their premises.” [Emphasis added]

The Centre noted that “growing and significant concern” about the text had begun brewing both domestically and internationally “as it necessarily includes grocery stores as a premise at which the Government is inviting the option of proof of vaccination.”

The letter also noted that the government’s WAP website “inconspicuously excludes this possibility which is contained in the Order itself.”

“It goes without saying that access to food for all Canadians including citizens of New Brunswick is an essential service which should not be denied or invited to be denied to anyone, especially by Government. The impugned paragraph of the Order invites and elicits the private sector to discriminate against New Brunswick citizens in relation to an essential service, as defined by the Government of Canada,” said the JCCF.

The Justice Centre was resolute in its opinion that the edict contradicted the Charter Rights of citizens, and demanded a retraction.

By Dec. 8, True North News (TNC) had already criticized provincial and federal politicians for remaining silent on the issue, “True North reached out to Conservative leader Erin O’Toole’s office, the Prime Minister’s office, the office of the Premier in New Brunswick and the People’s Alliance of New Brunswick caucus. None offered comments by deadline. Conservative New Brunswick Senator Rose-May Poirier also failed to respond.”

TNC added that it had “spoke twice with Conservative New Brunswick MP John Williamson’s assistants but received no comment after being told Mr. Williamson would review the requests,” and that the outlet also “spoke with the media coordinator for the People’s Alliance of New Brunswick but heard nothing from MLAs Kris Austin and Michelle Conroy.”

According to the JCCF, Williamson, joined by MPs Rob Moore and Richard Bragdon, finally “released statements condemning” the move, but not until Dec. 14.

On Dec. 11, the government’s de facto no jab, no food mandate manifested in society when the Fredericton Boyce Farmers Market (FBFM), which is owned by the Province and leased to the City of Fredericton, enacted vaccine passport requirements in accordance with the WAP.

The move was quickly challenged by the JCCF with a formal demand letter penned Dec. 15. In a press release for the occasion, Justice Centre lawyer Andre Memauri stated, “Our position remains the same in relation to any government denying or inviting private businesses to deny Canadians who have not taken the Covid vaccine to an essential service such as the purchase of food. Any such act is an unconscionable violation of the Charter and has no scientific or legal justification.”

Memuri further called grocery business vaccine passport mandates a “reprehensible and unlawful act of cruelty and discrimination.”

Public backlash against the edicts appear to have borne fruit when on Dec. 17, the Province revised its public health order, adding verbiage that stated, “The option of requiring proof of vaccination instead of requiring distancing is not available at locations in which groceries are retailed.”

A press release by the Province announcing the change claimed, “The original intention was to give stores a choice, and that those choosing the proof-of-vaccination option would offer delivery or curbside pickup; it was never the intention for anyone to believe they could not access groceries.”

The same day, the FBFM also announced on Twitter it would no longer be requiring attendees to show their papers at the door.

In a Dec. 17 statement on their victory, the JCCF praised the Province for having “corrected their vaccination policies,” but noted, “However, there is work to be done as the revised New Brunswick Order still infringes the Charter as it relates to faith-based venues, by requiring anyone that attends religious services to be fully vaccinated with the new Covid shots for certain events.”

The Justice Centre noted that had the Province not walked back its edict, “These warning letters were the first step in what would have proceeded to legal action…”