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Nova Scotia vaccination policy would likely survive court challenge, says law professor

Dalhousie's Wayne MacKay says proof of vaccination is a debate about when individual rights are trumped by the collective good

A Dalhousie University law professor says Nova Scotia's proof of vaccination policy would likely stand up to a court challenge. 

Starting Oct. 4, you'll have to show proof of full vaccination to participate in non-essential activities such as going to restaurants, bars, concerts, movies and fitness facilities. Several other provinces have similar policies planned, including in British Columbia where a vaccine passport comes into effect on Monday. 

The policies have been controversial, with some concerned about the impact on individual rights and freedoms. 

According to constitutional lawyer Wayne MacKay, the debate is about when individual rights are trumped by the broader, collective good.

"Certainly the cases that I've looked at, and my understanding of the constitutional law is that this would be a pretty classic case, in most cases, where the courts would say it is a reasonable limit," MacKay explained.

MacKay said there is an obligation to protect the safety of Nova Scotians during the ongoing global pandemic, and so the courts would likely consider the policy legitimate.

"If it applied to essential services, that's a problem. It wouldn't be right to say 'we as hospital will not serve you unless you've been fully vaccinated' that would be wrong and certainly challenged effectively," he said.

"If you are striking the right balance, then I think the courts will likely uphold what the legislatures have done."

As for privacy, MacKay added there could be concerns on that front but those could be mitigated by government and would likely again be trumped by the collective health and safety of Nova Scotians. 

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