Would national vaccine mandates work in Canada? Experts aren't sure

With European states turning to mandatory national vaccination regimes to deal with record COVID-19 infections, experts in Canada say that while science and the law may back the Liberal government if it chose to follow suit, it might not be the panacea the public is hoping for.

There are significant challenges to imposing a national mandatory vaccination program for all Canadians, the first of which is the age-old jurisdictional battle between the federal government and the provinces.

Under the Constitution, the provinces are responsible for delivering health care, and a vaccine mandate would fall under that remit. If the federal government wanted to take over that responsibility, it would have to either use the Emergencies Act or pass legislation giving it the authority to act.

"To do that, all hell would break loose from the provinces," Michael Behiels, a constitutional law expert at the University of Ottawa, told CBC News. "It's theoretically possible, but this would go to court immediately, and they would have to prove that the crisis is in fact a national crisis."

Behiels said a federal government taking this route would likely win any challenge in court, providing it could prove that the rate of infections, the death rate and ongoing mutations were creating a threat only a national response could mitigate.

Even in victory, he said, the move would likely create a backlash among provincial governments that see the step as unnecessary at this stage of the pandemic.

"Up until this moment in Canada, there has not really been a need to consider it," Dr. Allison McGeer, an infectious disease specialist at Toronto's Mount Sinai Hospital, told CBC News.

"We're not back to normal, but we're getting there — and there's no guarantee that we'll be right back to normal even if everybody is vaccinated because there are breakthrough infections," said McGeer, who is also a professor at the Dalla Lana School of Public Health at the University of Toronto. 

Behiels said a national vaccine mandate could not only create bad blood between the unvaccinated and the federal government but also between the provinces and Ottawa that could undermine the vaccination effort.

If the situation were different, he said, with a much higher death rate or a more aggressive infection rate, making that move might be easy and the provinces might even ask for the intervention if the situation got bad enough. But experts are not sure Canada has reached that point just yet.

European countries such as Austria and Greece appear to believe they have, and they're moving in the direction of national vaccine mandates because they are seeing infection rates three times higher than at any other time during the pandemic, and vaccination programs have stalled.

In January, Greeks over the age of 60 who are not yet vaccinated will be subject to a monthly fine of 100 euros ($140 Cdn). Slovakia is looking at taking the opposite route and offering 600 euros ($844) to encourage people to get their shots.

Austria, with one of the lower vaccination rates in the European Union, is looking at plans that, if implemented, would fine unvaccinated Austrians more than 7,000 euros ($9,880). There are already signs that enforcing that mandate will be a challenge; late last month some 40,000 protesters turned up in Vienna to challenge the new rules.

Only 67 per cent of the EU's population has been fully vaccinated against COVID-19, according to Our World in Data, while in Canada, 76 per cent of the population is fully vaccinated. Greece sits at 64 per cent, while Austria's population is only 66 per cent fully vaccinated.