Proposed Quebec tax on unvaccinated likely is within rights of province to impose: Davies lawyer

The Quebec government’s plan to tax residents who deliberately persist in remaining unvaccinated from COVID-19 would likely not be seen as violating the Canada Health Act, says Davies Ward Phillips & Vineberg LLP lawyer Jean-Philippe Groleau. However, there could undoubtedly be some Charter issues that would ultimately have to be settled by the courts.

“What is unprecedented here is that the Quebec government is looking at a tax policy meant to have people obtain a certain medical treatment,” Groleau says. In the past, governments have used different policies, including those with financial consequences, to change behaviour, he says, pointing to taxes on cigarettes, high-sugar beverages, and other junk foods.

He also points to high fees for registering motorcycles in Quebec to deter the use of the vehicles for strictly recreational purposes. In 2019, the province announced that annual registration fees would rise for motorcyclists in Quebec over three years, costing some riders hundreds of dollars more than they had previously paid.

“But a tax meant to try and motivate you to get a vaccine is a totally different beast.”

Groleau says the Quebec government has deliberately chosen to go this route instead of another solution some jurisdictions such as Singapore have imposed — pushing the costs of treating COVID-19 on patients who have chosen not to be vaccinated for philosophical or political reasons.

He says that going the route of forcing those not vaccinated against COVID-19 to pay the bill if they get sick would likely be in contravention of the Canada Health Act. It states explicitly that no one in our universal system can be denied access to healthcare. Ottawa can enforce this rule by withholding healthcare funding from provinces and territories to maintain the system’s universality.

That provision of the act also means that the willingly unvaccinated will never be denied care for COVID-19 or any other ailment. Instead, an anti-vax tax would be added in when returns are filed, and non-payment of this tax would be treated like any other taxes owed to the government.

He also notes that the hard-core unvaccinated would likely not care if the government told them they would have to pay for their COVID-19 related illness, even if it were legal to do so. “These people don’t believe in the seriousness of COVID-19 or think it’s a hoax. So, telling them they might be stuck with the bills wouldn’t be an incentive to get vaccinated, because they don’t think they’ll get COVID-19, of if they do, it will be very mild.”

Any proposed tax on the unvaccinated would very likely have to consider marginalized people or those who, for legitimate reasons, can’t get the vaccination or those who can’t readily access the vaccine.

Says Groleau: “I don’t think the government wants to impose that tax upon marginalized people, people who have medical excuses, people who have not been vaccinated because of isolation, language issues or simply a lack of understanding. They want to tax those not in those categories who willingly decide to not be vaccinated.”

Groleau adds that while there are not a lot of details about the proposed tax, the government will likely take all this into account and try not to impact those with very low incomes who are not vaccinated or who have other “legitimate” reasons for not getting the COVID-19 vaccine.

Groleau says there are signs are the government recognizes marginalized groups should not be hit by the tax. He notes that Premier Francois Legault was recently on the popular Quebec current affairs TV show Ici en Parle. While on the show, Legault said the intention is not to tax marginalized people, people with mental health problems or those with less access to the vaccines. The group being targeted, Legault said, is made up of those who make a conscious decision not to get vaccinated.

The other concern over an anti-vax tax, Groleau says, is whether it could withstand a constitutional challenge. One argument against the tax would be under Section 7 of the Canadian Charter of Rights and Freedoms, which protects the right to “life, liberty, and security of the person.” It protects personal autonomy and bodily integrity from laws or actions by the government that violate those rights.

However, Groleau says the province is being “pretty smart” about how it is proceeding with the tax. “They are not forcing anyone to get the vaccine – there’s no one holding you down and injecting you. What it is doing is imposing consequences for not getting the vaccine.

He notes that so far, attempts to motivate people to get vaccinated have centred around making everyday life more difficult, such as not being able to go into a bar, restaurant, or liquor store. Now it is expanding into the realm of financial consequences. The Charter does not protect these financial and economic consequences.

Groleau says the Quebec government would argue that Canadians don’t have a constitutional right to a “free” healthcare system paid for by general tax revenue.

“I think the government could say here that it’s not forcing people to get vaccinated; it is just imposing economic consequence for a decision that has an impact on the rest of society, Groleau says. “It would have an argument that is based on current case law, which indicates there is no breach of the right to life, liberty and security.”

Even if the tax were somehow deemed to breach a constitutional right, Groleau says the Quebec government could argue that it could be justified under Article 1 one of the Charter. That section says Charter rights can be limited by law so long as those limits can be shown to be reasonable in a free and democratic society.

“The fact that there is a breach of a right doesn’t necessarily mean that the measure is unconstitutional.”

Figuring out what is “reasonable” under Section 1 involves a three-prong test, Groleau says.

“First, is the objective of the government important here - to get as many people as vaccinated as possible? Second, is there a rational link between the measure and the objective? Is there an argument to be made that that tax will help get more people? Third, is there a minimum impairment of rights? Did the government do all it could before coming to this point – education, restricting access?”

On that last point, Quebec has most recently hoped to cajole unvaccinated people with pop-up clinics, hotlines and other outreach projects.

“We’re going to intensify our efforts in order to establish strategies in areas with lower vaccination rates, in order to connect with the most people possible,” said Dr. Lionel Carmant, Quebec’s junior health minister, at a news conference on Jan. 24.

“I think it’s important to make sure that as many people as possible get their first doses,” Carmant said. He added that the more people they reach in this new initiative, “the fewer people will be paying the vaccination tax.”

The campaign would mainly target marginalized and vulnerable communities – more than those who believe they are in good health and don’t need a vaccine. Carmant also vowed that these efforts to get more people on board would not be used to gather personal information with the proposed tax in mind.