Whatever else may be said about Quebec’s proposed tax on the unvaccinated, say one thing for it: It has aroused in Canadian conservatives a hitherto undetected fondness for the Charter of Rights and universal public health care.
Commentators who scant weeks ago would have been fulminating at the Charter as an assault on parliamentary supremacy (“enough about rights, what about responsibilities”) are now in hysterics at the Charter rights supposedly violated by such a levy.
Pundits who until about the last five minutes were demanding that patients be charged user fees to access the public health care system have suddenly discovered the virtues of the Canada Health Act, which prohibits them.
Others fret at the precedent being set. The beachhead of mandatory vaccines having been established, they ask, what other imposition on liberty will governments impose “for our own good”: a tax on skiing, perhaps, or on eating sausages? Never mind that this is an emergency measure, imposed during a worldwide pandemic that has already killed millions of people and is threatening to overwhelm our hospitals.
“Here is the fundamental principle of state power,” Rex Murphy thunders in the National Post: “What the state once gathers to itself it does not return.” For example, did you know that universal military conscription, imposed during World War II, is still with us? Well it isn’t, but it might have been.
The precedent argument can be dismissed first. It isn’t even a precedent, for starters. If taxing an activity that endangers individual health and imposes costs on the health care system is unprecedented, then what are existing taxes on tobacco and alcohol? Private home and life insurance, likewise, typically charges smokers and drinkers more than others, based on the associated risks. Even mandatory vaccines are not unknown: in schools, in the military, and during previous outbreaks of highly contagious, and lethal, diseases.
Macron and Legault play politics with the unvaccinated
Should the unvaccinated pay a special tax?
So the question to ask, when someone suggests that a tax on obesity is next, is: is obesity a highly contagious disease? That is what distinguishes the case for a tax on the unvaxxed from a tax on, say, sugar. It isn’t only for the sake of the individual’s own health, or even the costs to the health care system: it’s to prevent that individual from infecting others. Omicron may have reduced vaccine efficacy in this regard, but it has not eliminated it, especially among those with a booster shot.
Is that a violation of the Canada Health Act? The CHA prohibits user fees. But this isn’t a user fee. It would be, if the tax were charged as a condition of treatment. But that’s clearly not what the Quebec government has in mind. Rather, the charge would likely be collected via the provincial income tax return. So there’s no implication for accessibility.
The Charter argument is the one worth taking seriously. There’s no doubt that fining people who refuse to get vaccinated intrudes upon their rights, in a way that previous measures, such as vaccine mandates for flying or eating in restaurants, do not. The latter implies a choice such as we are commonly called upon to make; the former leaves very little choice – especially if failure to pay the fine is enforced by imprisonment.
The question is whether the intrusion can be justified. It’s not a particularly onerous one: trotting round to your local pharmacy, at no cost to yourself, to do something that 90 per cent of your fellow citizens have already done without ill consequence. There’s clearly a compelling public policy rationale: a demonstrable public-health emergency to which mass vaccination is a rational, indeed essential response.
Whether compulsory vaccines can be justified, however, is another matter. It will depend in part on the purpose for which it is intended. If its purpose is, as the Legault government has said, to recoup the costs of the unvaccinated to the public health system, then it should presumably be charged only to those who are actually using the system – which would indeed raise Canada Health Act issues.
If, likewise, its purpose is to limit the spread of the disease, it should arguably not apply to those who stay home and otherwise limit their contact with others. Either way, the policy leaves itself open to the argument that it is overbroad, causing greater harms to rights than was necessary to fulfill its purpose.
A better argument for the tax is simply as an incentive to get vaccinated. That was always the real argument for restaurant-and-flight vaccine mandates; Quebec is only making explicit what was previously implicit. But that runs into a couple of other potential roadblocks. One: is it likely to work? Will it persuade hardcore vaccine refuseniks to get the jab, or will they simply pay the fine – or even refuse to do that? Even if the cost to rights is small, if the benefits to public health are even smaller, it fails the test of proportionality.
And two: are there other ways to achieve the same end, less harmful to rights? Arguably, there are. For example, my colleagues on The Globe editorial board have proposed a census-style, door-to-door vaccination campaign. If so, the courts may find the tax goes too far.
These are fairly technical arguments, however. I don’t think the tax will do much good, but I also don’t think it’s the kind of “unprecedented” assault on “bodily integrity” and “personal medical choices” that some of the more extravagant critics pretend. If there were no pandemic on, or if getting vaccinated were a purely personal matter, or if vaccination were some unusually perilous or hideously invasive procedure, then yes, mandating it would be the kind of monstrous proposition claimed. But in the circumstances, it is the critics, more than the government, who are guilty of overreach.
Still, the onus is not on those who object to limiting freedom to make their case, but on those who wish to restrict it. Bad arguments against compulsory vaccination should not be mistaken for good arguments in its favour. In the end, the fate of any such measure will be up to the courts to decide, whose verdict I’m sure conservatives will be happy to accept.
Keep your Opinions sharp and informed. Get the Opinion newsletter. Sign up today.