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COVID-19 vaccine mandates would likely face legal hurdles in Canada

COVID-19 vaccine mandates would likely face legal hurdles in Canada
Written by Publishing Team

Federal Health Minister Jean-Yves Duclos wants provinces to make vaccination mandatory. Quebec has proposed a health tax for the unvaccinated. Other democracies have proposed similar laws. But imposing fines or taxes on unvaccinated people raises practical and legal problems. Here, I focus on legal issues.

With the outbreak of the pandemic, governments are bringing in more and more mandates for vaccines. First you need a vaccine to go to bars, restaurants and gyms. Then there were workplace mandates, then mandates to travel on trains and planes. Quebec recently required vaccinations to enter liquor and cannabis stores.

With vaccination rates barely declining in recent weeks, governments are looking at new ways to get needles into the arms.

Penalties for those who are not vaccinated

The last suggestion is to request vaccination, a complete stop. But it is important to note that this does not mean that people must be vaccinated. Alternatively, the most likely scenario is a regional law criminalizing non-vaccination. The penalty will most likely be a fine, although a prison sentence is not out of the question.

Health Minister Jean-Yves Duclos at a press conference with Canadian flags behind him.
Federal Health Minister Jean-Yves Duclos has suggested that provinces consider mandatory coronavirus vaccination.
The Canadian Press / Justin Tang

Consider what some European countries have done. Austria was the first country in Europe to require vaccination, with fines of up to 3,600 euros ($5,150). In Greece, a monthly fine of 100 euros will be imposed on those over 60 who have not been vaccinated, starting January 16. In Italy, those over 50 will face fines if they are not vaccinated. While the penalty is still being determined, it appears it will be at least €100.

Can Canada impose vaccines?

Whether the government can release vaccines depends on what exactly the new law says. Canadians have the right to make decisions about vaccination, but these rights are not absolute. Having rights does not mean that there will be no consequences for your decisions.

If a province attempts to impose a fine or other penalty on non-vaccinators, a challenge under the Canadian Charter of Rights and Freedoms will surely follow. The argument would be that this violates people’s right to life, liberty, and personal security, and possibly other rights such as freedom of conscience.

Whether or not the law is constitutional is a matter of issues such as whether it is as narrow as possible, whether it will significantly increase vaccination rates and whether the government has done enough to promote voluntary vaccination.

For example, laws with exceptions for those with medical reasons for not vaccinating are likely to be constitutional. It would be easier to justify that limitation to people over a certain age (as in Italy and Greece). All other reasonable efforts to promote voluntary vaccination first would help make the law constitutional.

People protest against vaccine mandates.  One holds a sign that says
If the county tries to impose a fine or other penalty on non-vaccinators, a challenge to the charter will surely follow.
The Canadian Press / Lars Hagberg

With regard to dramatically increasing vaccination rates, it is debatable whether a vaccine mandate will do so. Many people may prefer to pay a fine over vaccination. If the fine is high enough to change people’s opinions, it can also be unduly harsh – especially for marginalized populations.

Governments should avoid a scenario in which the rich pay to avoid vaccination, while the poor have fewer options. One possibility is that the amount of the fine or tax depends on the individual’s income.

Timing also plays a role in the effectiveness of vaccine mandate. It is likely that the mandate will not take effect until after the peak of the fifth wave. The usefulness of current vaccines for future waves or variants is unknown.

This will make it difficult for governments to argue that such a law does not undermine rights too much – an important part of constitutional analysis. However, vaccines will certainly continue to be a very important tool in the fight against COVID-19.

Promote vaccination for cost recovery

A final issue, raised by Quebec’s approach, is whether the law aims to increase vaccination rates or recover health care costs. Both fines and taxes add to the boycott’s bottom line, but the purpose of the law is important in constitutional law.

The state is likely to incentivize vaccinations while the health tax is primarily aimed at recovering health care costs. (Singapore has gone even further by charging non-vaccinators to cover their own hospital costs if they are hospitalized.)

The states refer directly to the individual’s right to bodily independence. It can be said that the tax affects only the financial resources of an individual. This may make the tax more constitutional.

However, it raises serious political issues. Universal health care does not cost more to citizens simply because they are more likely to need health care. This is part of what makes it universal. It’s not like private insurance links premiums to risk. Tobacco and alcohol may be heavily taxed, but we don’t tax dangerous sports activities, unhealthy eating, stressful work, or lack of exercise.

Charging more universal health care based on personal choices is controversial and raises important ethical and practical issues. Governments should think carefully about the implications before undermining the principle of universality.

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