Mandatory vaccination legislation introduced by the New Brunswick government last week could be in jeopardy, due to opposition to the use of the notwithstanding clause in shielding the bill from legal challenges.
The debate around Bill 11, which would remove non-medical vaccine exemptions for public school children, has transcended vaccines and public health policy.
Many opposition members say they support vaccination, but the historic use of Section 33 of the Canadian Charters of Rights and Freedoms is turning some away.
“As a party, we do believe that the notwithstanding clause goes too far, that it’s infringing on Charter rights,” said Liberal justice critic and Moncton Centre MLA Robert McKee.
The Liberals were considering a free vote on the bill, a former iteration of which appeared before the committee on law amendments earlier this year, but the inclusion of the notwithstanding clause means that is likely no longer an option.
“It would certainly be easier as a caucus to have that free vote if the clause was not there,” McKee said.
“That is what we had discussed prior to this new legislation — that it was a free vote, that vaccination is important and we have to make sure that kids are vaccinated to protect those that can’t.”
McKee has repeatedly said the legislation should wait until public health completes its effort to update vaccination records to determine if rates are too low and non-medical exemptions are being abused.
“With the state of the evidence that they’re supplying us, the data, we believe that the notwithstanding clause is going to far,” he said.
Green Party leader David Coon said he could not support the bill in its current form, going as far to say “it should never have been contemplated,” but would vote for it without the clause.
He also said he would support an amendment to remove the notwithstanding clause from the bill.
McKee said discussions surrounding a possible amendment that would kill the clause are being discussed by the Liberals, adding they would likely be able to allow a free vote should such an amendment pass.
The People’s Alliance of New Brunswick are the government’s closest allies in the minority legislature and will be allowing a free vote. MLAs Michelle Conroy and Rick DeSaulniers say they have yet to make up their minds and will likely rely on the voices of their constituents and the debate in the house.
Party Leader Kris Austin is similarly up in the air, but is leaning against it due to the inclusion of the notwithstanding clause.
“We’re kind of using a nuclear button here on an issue that I don’t think warrants it,” Austin said.
“If we were in the middle of a public health crisis, if the chief medical officer of health was stating we’re in a real issue here with not enough kids being vaccinated, then I would agree.”
Premier Blaine Higgs says his party will be allowing a free vote on the bill. Higgs says he will be voting for it, but understands the concerns raised over the use of the notwithstanding clause.
“I was actually not excited about the notwithstanding clause being used in this manner,” Higgs said.
The inclusion of the clause came after the office of the attorney general reviewed the bill and was of the opinion that the province would ultimately lose a legal challenge of the legislation.