The appellants assert that the POABA does not infringe upon section 15(1) of the charter that every individual is equal before and under the law and has the right to the equal protection benefit of the law without discrimination.
The appellants do recognize that barring the children of both Wilson and Fernandes, along with Simpson and Jones, from respectively attending school and daycare centre, may be interpreted as discriminatory efforts based on enumerated grounds as outlined in the charter. Denying access to these institutions on seemingly analogous premises may qualify for the Kapp-Withler test as established in the case of Andrews v. Law.
While conscience may be entertained as a distinction based on an analogous ground of section 15(1), it does not, in itself, violate the charter as the legislative impact of the law is not discriminatory.
Subsection 1 of section 15 essentially protects any law designed to improve the conditions of the disadvantaged. The requirements in the POABA are put in place to protect the disadvantages of those particularly vulnerable to bigpox. We the appellants believe the POABA is not rooted in prejudice and stereotypical assumptions; rather, it recognizes the importance of ensuring the protection of public health.
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The characteristics of the respondents play no part in the denial of access; instead, the denial of access to school and daycare for unvaccinated children is based on the proven scientific proposition that those who are unvaccinated pose a risk to other children who are medically unable to be vaccinated or have not developed an immunity to bigpox. The risk is only magnified in areas such as schools and daycares where children spend a lot of time in close