Quebec’s plan to tax adults who choose not to remain vaccinated against COVID-19 has already been called “constitutionally vulnerable” by critics – but experts say the province is well within its rights and challenges are likely to come fail.
Details on the proposed tax are scarce, but Prime Minister Francois Legault said on Tuesday the fine would be “significant”. Those with a medical exemption would be exempt from the tax.
Legal experts say provinces have constitutional authority to levy direct taxes to pay for services like health care, and that it makes sense from an equity perspective to force those who put the most burden on the health care system to pay more for them.
“They don’t take away people’s freedom, they just demand that people pay a price when they pose a risk,” said David Duff, a professor at the University of British Columbia’s Peter A. Allard School of Law.
“If the health care system were funded through private insurance, which are priced based on risk, you would expect higher premiums for unvaccinated people. This is a demonstrable risk.”
Quebec to tax people who have not been vaccinated against COVID-19
The tax is being proposed as Quebec faces unprecedented strain on its health care system due to the highly transmissible Omicron variant, which is sending more people to hospital than at any other time during the pandemic.
On Tuesday, more than 2,700 people were hospitalized with COVID-19, including 255 patients in intensive care. An additional 62 deaths were reported on Tuesday alone.
Legault noted that half of people in intensive care are unvaccinated, even though that group makes up 10 percent of the adult population.
Duff says that while the prospect of taxing people for choosing not to get the vaccine may be unprecedented, the tax system has long been used to incentivize people’s behavior through credits or exemptions.
“We get a tax advantage when we invest in our pension, why? Because (the government) wants to encourage that,” he said. “You give to a good cause, you get something in return. This is similar to that.
“Will it affect people’s behavior? That remains to be seen.”
Quebec introduces health tax for unvaccinated
While the tax is unprecedented in Canada, similar measures have been introduced by other countries. Austria announced in December that vaccine holders over the age of 13 must pay up to 3,600 euros ($5,139 Canadian) in fines every three months. From this month, Greece will impose a monthly fine of 100 euros (CA$142) on residents aged 60 and older who refuse the vaccine. And in Italy, residents 50 and older must now be vaccinated or can face fines of up to 1,600 euros (CA$2,287).
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It remains to be seen whether such policies will push up vaccinations in those countries. But Devon Greyson, an assistant professor in the School of Population and Public Health at the University of British Columbia, says the impact may not be as great as Quebec officials hope.
They point to studies conducted in BC that showed that while most people supported policies that improved access to and information about vaccines, that support declined slightly for incentives like cash payments to get the opportunity — and plummeted when respondents were asked. to punish procrastination.
“It’s fair to think that this could lead to an increase in vaccinations in the short term, but I think the questions are more about the long-term effects and just the ethics of going ahead with something like this,” they said.
“I think it’s interesting that this comes after Quebec withdrew its vaccine mandate for health professionals, who would reasonably be a greater source of infection than the general population.”
Greyson says it will be important for the Quebec government to ensure that vaccinations are accessible to all segments of the population — including low-income residents and racialized residents — before they begin punishing the unvaccinated.
That’s also a major concern of the Canadian Civil Liberties Association, which released a statement Tuesday evening that predicted the “distribution measure…will ultimately punish and alienate those who may be most in need of public health support and services.”
“We will not penalize individuals who make poor dietary and exercise choices, those who choose higher-risk occupations or recreational activities,” said acting general counsel Cara Zwibel. “Some essential services – such as basic health care for the sick – transcend such individual choices.”
In an interview, Zwibel said the tax may also violate the protections of individuals’ bodily autonomy, as enshrined in the Canadian and Quebec Charters of Rights and Freedoms.
“You have to ask, is it justified?” she said. “The burden is on the government to prove that they have an urgent and substantial objective that (they) are trying to achieve and that this is a proportionate response to it. And the government has not said what the goal is here.”
Legault did not explicitly say his goal with the tax was to increase vaccinations, but his administration has repeatedly emphasized the importance of vaccinations in alleviating the pandemic and reducing pressure on the health care system.
COVID-19: Constitutional expert weighs in on Quebec health tax
Constitutional law experts also say the proposed tax would not restrict people’s access to health care as charging unvaccinated patients for services would, exceeding the threshold set by the Canada Health Act.
Stephane Beaulac, a professor of constitutional law at the University of Montreal, told Global News that any legal objections to the tax would likely be based on discrimination arguments, which would be difficult to pass.
“The problem is that under the Canadian Charter or the Quebec Charter… there are specific grounds for discrimination that are prohibited,” he said. “And the last time I checked, there’s nothing specific about a person’s vaccination status.
“In other words, choosing not to get vaccinated is within the realm of liberty, of one’s liberty, under Canadian and Quebec law. But that does not mean that if there is a measure that goes against the choice one has made for oneself, it would be discrimination.”
Alberta and British Columbia said Tuesday they would not follow Quebec’s lead and introduce a financial penalty for unvaccinated people.
Duff says those provinces and others will still be watching how the proposed tax plays out in Quebec — and whether it makes any difference in the fight against the pandemic.
“Whether others follow, we’ll see,” he said. “But I doubt it will be soon.”
— with files from Global Montreal and the Canadian Press
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