Is mandatory COVID vaccination legal? Here’s what Canada’s charter says

Governments are stepping up their efforts to convince people to get inoculated against COVID-19, with Quebec becoming the first province to announce a special tax on the unvaccinated.

The move, announced by Premier François Legault on Tuesday, mirrors that of European nations that have forged ahead with a form of mandatory vaccination.

Dr. Andrew Boozary, the executive director of social medicine at the University Health Network in Toronto, described Quebec’s policy as “grossly inequitable.”

“If we see rushed public policy that’s punitive, that can really set us back, especially with marginalized communities, in ways that will have long-standing effects,” said Boozary. “Populist policy, in any direction, can be a public-health hazard at a time like this in a pandemic.”

But, the debates over the ethics of mandatory vaccination, and the debates over whether or not it will actually work, obscure a simpler question: Is such a policy even legal in Canada?

As with many constitutional questions in Canada, the answer is, it’s complicated.

When it comes to Quebec’s proposed tax, which Legault called a “health contribution,” it’s tricky to say because the details haven’t been explained, including how much the monetary penalty might be.

The greater the extent of the infringement, the higher the threshold that a government has to reach in justifying that interference

 

“It doesn’t take a rocket scientist to figure out the greater the extent of the infringement, the higher the threshold that a government has to reach in justifying that interference,” said Eric Adams, a law professor at the University of Alberta.

“This pandemic is itself dynamic, and there are moments in time when it might be fully appropriate for certain kinds of state interference to be found to be justified by courts.”

Not so, perhaps, at other times: If hospitalization rates are dropping, Adams said, could a government justify taxing the unvaccinated?

“That makes this particularly challenging area,” Adams said.

Just shy of 10 per cent of the Canadian population does not have even one dose of a COVID vaccine.

The Canadian Civil Liberties Association said in a statement that the charter guarantees autonomy over our bodies and medical decision-making.

“Allowing the government to levy fines on those who do not agree with the government’s recommended medical treatment is a deeply troubling proposition,” the CCLA said. “The government must provide clear and compelling evidence and demonstrate that there were no reasonable alternatives.”

The federal government has previously said immunizations “cannot be made mandatory because of the Canadian Constitution.” This claim, made in a 1996 Health Canada report on immunization, provided no evidence to back that assertion. Asked this week about this claim, Health Canada responded with information about its vaccine mandate for the federal workforce.

“It is up to the provinces and territories to determine their policies and exemption processes,” wrote spokesperson Anne Génier, in an email.

Carissima Mathen, a law professor at the University of Ottawa, said that Canadians’ charter rights can be limited — such as, in this case, one’s security of the person or conscience rights — if the government can sufficiently justify such an infringement.

“Like, is the government going to be able to tell the court, ‘We need this greater pressure or we will be in a semi-permanent state of pandemic?’” said Mathen.

At this point, Quebec, where 16 per cent of the population is unvaccinated, remains the sole jurisdiction to embark down this path, although before Quebec’s announcement, New Brunswick Premier Blaine Higgs said he expects the topic to receive more discussion in his province.

It has been flat-out dismissed in some jurisdictions. In Alberta, which has the highest unvaccinated rate (22 per cent) in the country, outside of Nunavut (23 per cent), Premier Jason Kenney has said there will be no compulsory immunization. British Columbia and Saskatchewan have said similarly. On Wednesday, Kieran Moore, Ontario’s top doctor, said he would not recommend Ontario follow Quebec, and said the province would not mandate COVID-19 vaccines in schools.

When it comes to the possibility of more forcefully compelling people to receive the COVID-19 vaccine, a fine or tax is one option before governments. So, too, would be restricting access to government services, or private services, such as liquor stores or gyms. Though highly unlikely, the federal government could make being unvaccinated a Criminal Code offence.

“Those who are against mandates or even against vaccination more broadly, they try to portray it in the most extreme form, as if people are going to show up at your door, hold you down and force you to get vaxxed,” said Tim Caulfield, a Canada research chair in health law and policy at the University of Alberta. “It isn’t going to be some kind of forced vaccination policy. On the contrary, it’s likely to be some kind of fine or something similar to a fine.”

Regardless of which tack a provincial government may choose to take, any such rule is almost certain to be challenged in court — and the court of public opinion — as have many other public-health measures, such as travel restrictions, isolation requirements, vaccine passports and workplace vaccination mandates, throughout the pandemic.

“The government’s gonna say that, say, a monetary tax is simply of a kind with policies that have already been widely implemented around the world and certainly across Canada,” said Adams.

In Italy, those 50 years of age or older must get vaccinated, or they will be suspended without pay until they do so. Greece will fine those over the age of 60; Austria, back in November, became the first European country to say it would mandate vaccination, vowing fines of more than $5,000 every three months on the unvaccinated.

While there’s no society-wide vaccination mandate in Canada, a number of sectors have experimented with mandates prior to, and during, the pandemic.

The Liberal government has insisted all federal public servants will need to be vaccinated and a number of provinces attempted to mandate COVID-19 vaccinations for health-care workers (who are, in many cases, already expected to get other immunizations).

Some provinces also impose mandatory vaccinations on schoolchildren. Ontario, for example, even prior to the pandemic, required children to receive nine inoculations in order to attend primary and secondary school, although there are exemptions for conscience, religious or medical reasons. Other provinces, such as Alberta, do not insist upon vaccination for students.

Section 7 of the Charter of Rights and Freedoms protects “life, liberty and security of the person,” rights both physical and psychological. Section 2 protects freedom of religion and belief. Section 15 protects equal treatment before the law, regardless of features such as disability, sex or religion. All three sections of the charter could be engaged in a legal challenge, experts said.

Rights in these sections can be limited. Section 7 rights, the charter says, cannot be deprived “except in accordance with the principles of fundamental justice.” In other words, they can be deprived, it’s just these violations must adhere to certain standards; it’s an “internal reasonability limit,” explained Adams, that’s used to evaluate whether or not something that justifies your rights is reasonable.

“Is it an arbitrary law? Is it overbroad, grossly disproportionate? So that’s why it’s not enough to just say, you know, your autonomy is being interfered with,” said Mathen.

There’s also Section 1 of the charter, which says rights are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

This section provides, basically, an outline or series of tests for how governments can justifiably limit rights, and that’s done through a legal principle known as the Oakes Test.

In brief, this requires the court to analyze whether there’s a pressing and substantial objective to do so, and whether or not the strategy is proportional (Does the benefit derived, such as stopping the pandemic, outweigh the infringement?) and rationally connected to the objective (Does a tax on vaccine status help solve the pandemic?) and is the impairment of rights minimal (Does it have effects beyond the desired, does it overreach in suppressing rights?).

While courts have been fairly deferential to government decision-making during the pandemic, the courts could be more willing to step in on something like mandatory vaccination.

“It would be difficult. Courts would be in a tough spot. But this would be a significant elevation of government intervention with fundamental personal choices,” said Mathen.

In order to be found constitutional, such a policy would need to be tailored carefully, and narrowly, argued Caulfield.

A court would look at a number of things, he said, such as whether or not the policy didn’t overly infringe on rights, with reasonable fines and exemptions for medical, conscience and religious reasons.

“We do have through emerging policy around the world and emerging jurisprudence that suggests that there’s this growing consensus that mandatory vaccine policies are reasonable and can be enforceable,” Caulfield said.

With additional reporting from Christopher Nardi, National Post |  Email: tdawson@postmedia.com | Twitter: tylerrdawson