A tax on the unvaxxed would be legally and ethically questionable — even if it worked

The pandemic is now in its 23rd month and a highly contagious new variant is running rampant. Safe and effective vaccines are readily available and unvaccinated citizens are contributing disproportionately to a medical crisis that makes life harder and more dangerous for everyone.

So there are surely some — perhaps many — among the vaccinated who would like to see the unvaccinated suffer significant consequences for their intransigence, up to and including financial penalties. Ideally, such consequences also would minimize the number of people who remain unwilling to get the shot.

But however much Quebec's threat of a tax on the unvaccinated might appeal to feelings of frustration and desperation, it doesn't necessarily follow that Premier François Legault's proposal is the right way to go about confronting the problem.

Though the details have not been finalized, it does not seem that what Legault is proposing would run afoul of a strict reading of the Canada Health Act. That federal law — which Ottawa can enforce by withholding funding for health care from individual provinces and territories — specifies the principles of universality and accessibility. But Legault is not proposing a direct fee for necessary medical services.

Whether an annual tax on the unvaccinated undermines the idea of universal medicare is more of a philosophical or political question. Some might say it does.

But there are other big legal and ethical questions to ask about such a policy.

"The [Charter of Rights] argument that will be made is that basically, [you're] doing something coercive," said Lorian Hardcastle, a law professor at the University of Calgary.

"We probably will see people argue that [Quebec's proposal] violates the [charter] rights to life, liberty and security of the person. And there are cases that talk about [how] part of that right to life, liberty and security of the person is bodily autonomy and making your own medical decisions and the right to self-determination."

Charter rights aren't unlimited. They can be subject to reasonable or minimal impairments. That means it could fall on the Quebec government to justify the infringement.

"I think that this case would really turn on this question of, was the government reasonable in doing this? Do they need to do this? Could they have achieved increased vaccination rates through mechanisms other than this kind of coercive mechanism?" Hardcastle said.

"We don't ordinarily prescribe what health care treatments people must get … And so this is quite a jump, and we wouldn't want to make this jump if there were other stones left unturned."

A court might also want to know how effective the tax is at increasing vaccination rates. It could look to examples in Europe for evidence.

It's the degree of coerciveness, Hardcastle said, that separates a tax from other restrictions, such as barring the unvaccinated from accessing non-essential businesses or activities. When it comes to limits on movement, the unvaccinated have easy options. If they can't enter a restaurant, they can order delivery.

A number of other current public policies might seem loosely analogous to what Legault proposed on Monday – charges or regulations targeting unhealthy behaviour that can impose a cost on society.