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Gerard Kennedy: Settle the legality of vaccine mandates with the notwithstanding clause

Commentary

Forced medical procedures must be one of the most egregious violations of a person’s physical and psychological integrity against the will of an individual.”

Most Canadians, whether constitutional lawyers or not, recognize truth in this holding of Justice Ian Binnie in A.C. v. Manitoba. The violation of personal integrity is aggravated when, as in A.C., a strong religious belief is the basis of an objection to medical treatment.

But what about society’s interests? The number of Canadians vaccinated against COVID-19 may be insufficient to guarantee a return to normal life. An obvious way to encourage higher vaccine take-up is restricting the liberty, including taking away the jobs, of the unvaccinated. But with few, if growing exceptions, politicians, as well as other decision-makers such as university presidents and business leaders, have been reluctant to pursue this route.

Central to their hesitation are concerns, in the vein of Justice Binnie’s, about vaccine mandates’ legality. These concerns are not fanciful.

But this legal grey zone can become black-and-white. Governments can pass legislation, regulating use of vaccine mandates, noting where they are to be: mandatory (e.g., staff front-line heath care, elementary schools); permitted (most places); and prohibited (e.g., customers at grocery stores, pharmacies). Exceptions should, of course, be made for those who cannot be vaccinated, such as if they are too young, undergoing chemotherapy, or are otherwise immuno-compromised. 

And this legislation should be crafted by invoking section 33 of the Canadian Charter of Rights and Freedoms, also known as the “notwithstanding clause”.

The Legal Grey Zone

Concerns that vaccine mandates are unconstitutional may be overstated. Law professors Debra Parkes and Carissima Mathen have recently persuasively argued that restricting individuals from attending a university campus unless they are vaccinated would not violate the Charter. The Charter only applies to “government”.

Whether this includes universities is unclear. More importantly, they suggest that rights to liberty or security of the person would be limited in accordance with the principles of fundamental justice, meaning s. 7 of the Charter, which protects those rights, would not be limited.

Alternatively, and even more persuasively, they observe that all rights in the Charter (including rights to freedom of conscience and religion, cited as reasons for refusing to be vaccinated) can be limited if “demonstrably justified in a free and democratic society”.

Indeed, Justice Binnie was unable to persuade his colleagues in A.C. that the unwanted blood transfusion in that case violated the Charter, albeit only because the person was a minor.

But the devil is in the details. My colleague Brandon Trask has viewed the constitutionality of vaccine passports with skepticism. The right of adults of sound mind to refuse medical treatment existed in the common law before being constitutionalized in s. 7 of the Charter, even putting aside religious freedoms.

A majority of the Supreme Court of Canada has never found a limit on s. 7 rights to be justified. To be sure, in a leading s. 7 case, Justice Antonio Lamer suggested that limits on s. 7 could be justified in emergencies, including “epidemics.” And courts have been very deferential to policy-makers in emergencies in general, and the COVID-19 pandemic in particular. Even so, we are in unchartered waters.

The argument that the right not to be subject to unwanted medical treatment would not be infringed because no one would be forced to take the vaccine, but rather have their liberty restricted, is similarly detail-dependent. “Take the vaccine or go to prison” is a “choice”, but not one that a court would likely hold to be constitutional. “Take the vaccine or you cannot go to a Blue Bombers game” (as is currently the case in Manitoba) is at the opposite end of the spectrum.

A Manitoba vaccination card.

Where does “take the vaccine or lose your job, and thus your livelihood and a large part of your identity” land on this spectrum? Here, the answer is less certain. It is likely permissible to mandate that a critical care nurse be vaccinated upon pain of losing his job, given his interaction with the most vulnerable.

But would this also be true for a park conservation officer, who rarely interacts with individuals and, when she does, typically is outdoors (where the risk of COVID-19 spreading is minimal)? How the courts will balance her acute interests in bodily integrity upon pain of losing her livelihood, against a small risk of infecting a colleague, is very uncertain.

Prime Minister Trudeau’s recent announcement that the civil service is examining vaccines mandates for federal employees and those in federally regulated industries implicitly acknowledges nuance here.

The legal grey zone of vaccine mandates is complicated not just by the context-specific nature of Charter analysis, but by provincial human rights and privacy legislation that apply to private parties as well as governments. The details of these laws vary from province-to-province, muddying the waters further. And there is evidence that vaccine mandates would disproportionately impact certain racial and/or religious groups, potentially putting statutory and constitutional equality rights in play.

This legal grey zone has led many decision-makers to be reticent to mandate vaccination. This is understandable. How many employers and businesses want to end up in litigation? Even if they “win,” the cost, delay, and stress are themselves disincentives to act.

Enter the Notwithstanding Clause

The “notwithstanding clause” in the Charter allows legislatures to temporarily override Charter rights, or at least judicial interpretations of those rights. This is controversial in some circles, largely because it leaves the judiciary powerless in the face of legislative majorities subordinating minority rights (see Quebec’s Bill 21).

However, it can be defended as the part of the constitution that protects parliamentary supremacy. “Judges do not have a monopoly on constitutional wisdom” and the boundaries of the Charter’s meaning are a matter for reasonable disagreement. And but for the clause’s inclusion, the Charter never would have been enshrined.

Those across the political spectrum, but particularly small-c conservatives (in power in seven of ten provinces), should be particularly keen to take this route of legislation invoking s. 33 regarding vaccine mandates.

Most importantly, using the notwithstanding clause (in legislation also temporarily overriding other human rights and privacy statutes) eliminates legal uncertainty that is seemingly causing so much reticence to act. This would tell, for example, university presidents, in no uncertain terms, that they have authority to mandate vaccines on campus, allowing them to make decisions in the best interests of their staff and students without fear of litigation.

As Cass Sunstein among others have noted, legal uncertainty tends to particularly concern conservative jurists.

Moreover, legislation allowing businesses to mandate vaccines allows them to decide how to balance the interests of the vaccine-resistant against the needs and demands of their clientele. There may be some circumstances (such as front-line healthcare and elementary school staff) where the government should put its foot down as the risk to vulnerable and/or unvaccinated populations is too great.

There may be others (such as customers at grocery stores and pharmacies) where imposing a vaccine mandate should be prohibited as it would further impede the vaccine-resistant’s ability to live healthily. But having the “default” be choices of individual businesses and workplaces respects local autonomy and allows businesses to tailor their practices to their particular clientele and work force.

Using the notwithstanding clause can also demonstrate that legislatures, as much as courts, can interpret the Charter’s meaning, frequently a matter of reasonable disagreement. Explaining why s. 33 is being used — easy, in this context, given the possible dangers of disagreement on Charter interpretation — also better allows the public to judge the wisdom of using it and hold politicians accountable accordingly. Mark Mancini and Geoffrey Sigalet suggested as much last year.

Using s. 33 might be concerning to those who view the clause as illegitimate and are reluctant to normalize its use. Its use may also be objected to as unnecessary given plausible arguments that limits on Charter rights posed by vaccine mandates would be justifiable.

These were reactions to New Brunswick’s 2020 proposal to mandate vaccines in schools using s. 33. These are respectable viewpoints. But their consequence is that any vaccine mandate would be enacted in a legal grey zone — a grey zone that may lead to a lack of vaccine mandates.

In any event, concerns about normalization of the use of s. 33 should be less acute in this unique situation. Even critics arguing for constraints on its use, such as the International Commission of Jurists, have suggested that it would be permissible in “an emergency or [for] an overwhelming public purpose.”

Such constraints are unlikely legal requirements given the clear language of s. 33, and past judicial decisions interpreting it. Even so, the circumstances of a once-in-a-century pandemic would seem to satisfy even these critics.

Some libertarians may continue to have extra-legal, philosophical objections to vaccine mandates. But legislation, using the notwithstanding clause, would at least eliminate doubts about legality.

This would not just reduce inaction due to fear of litigation, but allow most businesses and employers to make decisions without fear of litigation, and demonstrate the role of legislatures in constitutional interpretation.

Ginny Roth: Don’t be shy about it. ‘Family values’ and babies are good things

Commentary

Last week, Paul Krugman, the Nobel Prize-winning economist and New York Times columnist, took an unspoken yet mainstream view and tweeted it out loud.

Responding to a growing interest (particularly among intellectual conservatives) in natalism, Krugman’s tweet thread initially seemed to be arguing that the economic case for natalism is weak. But he ended his thread on a more emotional note, critiquing the perceived real reason for the uptick in natalism, tweeting: “the economic case for pro-natalism is really weak — so you’re left with some kind of ‘family values’ argument (I mean, look at how fatherhood has mellowed and matured Donald Trump) or, not-so-hidden subtext, the need for more white Christians.”

Some kind of “family-values” argument, indeed.

Krugman’s tweets set off a series of arguments and counterarguments online. While some reacted to his drive-by anti-Christian smear, most engaged with his economic argument. This tendency, to want to hash this debate out on economic grounds, reflects the biases with which elites generally approach birth rate questions, including in Canada.

The global fertility rate, and birth rates in each country, is evidently important to civilization as we know it. The subject is the very definition of existential. And yet, in polite society, natalism carries with it a reputation for eerie religiosity, a concerning nationalism and a patriarchal, barefoot-in-the-kitchen kind of vibe. For secular liberals who make up the vast majority of elite opinion in the west, natalism sounds downright creepy.

This means that for the few centrist economists, policy leaders and politicians who do want to acknowledge the clear downsides of a shrinking population, economic language is the solution to the ick factor. A shrinking and aging population means a shrinking economy with more expensive (older) people to take care of and not enough GDP-contributors to do it.

While anti-natalists counter that immigration is the solution, natalists counter that immigration isn’t enough and as the decline in birth rates remains gradual rather than sudden, the issue lingers on the periphery. But this public discussion skirts the core of the natalism debate: the cultural conflict Krugman so offensively concluded his thread with.

The economic analysis is wholly inadequate for capturing the value of increasing birth rates (and the downside of decreasing birth rates) and by opting out of the cultural argument, natalists sideline the most powerful point of all: Children are a common social good in and of themselves and making more of them is a good thing.

First, it’s important to understand the stakes. Birth rates have been gradually declining across the developed world for decades. There are occasionally precipitous declines and occasionally rates tick back up, and some countries are worse off (depending on your perspective) than others, but in general, the trend is consistent.

There is a community of demographers who study birth rates and intellectuals who write about them, but the issue is relatively niche in policy circles, except for when we see steeper circumstantial declines, like during the pandemic, or mini baby booms.

Krugman and his peers are horrified by the notion that people who worship God have more kids.

Lately, natalism is back in vogue, if temporarily. Birth rates declined at the beginning of the pandemic, but then U.S. President Joe Biden rolled out a cash benefit for families with kids at home, similar in some ways to the Canada Child Benefit. Now, American birth rates are ticking back up, something demographers are calling a “baby boomlet.”

Research indicates that economic circumstances impact birth rates at the margins and the most recent U.S. trends support this. As American families faced economic uncertainty (not just about their finances but about their home life and work life) at the start of the pandemic, many put pregnancy plans on pause. Then, as stimulus funds flowed from the government, and home and work life re-normalized (in some cases with the knowledge that work-from-home might remain an option for parents with fewer leave options), families opted back into growing.

But, this kind of circumstantial impact seems to only impact birth rates at the margins. Longer-term research is clear that the global trend in declining birth rates is not likely to be reversed by one-off economic policy levers like better parental leave or baby bonuses.

This is not to say these policies shouldn’t be pursued. Indeed, the way a society redistributes its tax revenue and what its laws ask of employers reflect what it values and as some have pointed out, it is unjust that parenthood has become a luxury good. However, given the existential nature of the bigger natalism question, it is worth better understanding why birth rates continue to decline in many countries despite financial support for families.

The latest research suggests two major factors which impact birth rates: religion and work. To my mind, the two are connected. Workism, described by Derek Thompson in The Atlantic, is the modern, western phenomenon whereby the the “college-educated elite” derive a sense of meaning, identity and community from work (rather than from home life, family and religion). Demographers have drawn a link between the rise in workism and the decrease in fertility.

Meanwhile, as these same westerners become less religious, the stubborn few who continue to practice are the exception to fertility decline. If religion and the thing that often takes the place of it for the non-religious (work), seem connected, it’s because they are. People who value family over the individual, home life over work life and community over self are more likely to have more kids.

It follows that a society that elevates those same value-based priorities will foster higher birth rates, a younger population, and stronger communities. This is the terrain on which to hash out the cultural debate around natalism. And as Krugman’s tweets make clear, the anti-natalists are already doing so.

Krugman and his peers are horrified by the notion that people who worship God have more kids. It’s more acceptable to outwardly express this horror towards white Christians, but it’s safe to assume he would find natalists of all faiths and races suspicious in their fondness for procreation.

On the one hand, those of us who value community, family and the common good are at a clear disadvantage because while our opponents fight a culture war, we politely make a series of highly-technocratic economic arguments. On the other hand, despite declining birth rates, the family as an organizing principle is stubbornly persistent. Natalists should be bold in this knowledge and seek to win over hearts and minds on the cultural battlefield, not just in policy journals.

This means leaders who believe natalism is important should talk about it, like JD Vance did in a speech last week at the Future of American Political Economy Conference. It means people who believe starting a family is a good way to go should pursue it for themselves and model it for their peer groups. And it means we should seek to ensure our pop culture (so often dominated by the cultural left) celebrates babies and families.

The cultural left talks about and signals their values all the time. Natalists could take inspiration from Canada’s Liberal government, which, in signalling virtue for its brand of feminism, applies a feminist “lens” to public policy decision making. Sam Duncan has suggested in this publication that a similar approach could be taken by the right in the form of a family-lens applied to government policy making to avoid inadvertent policy penalties for families and encourage the application of family values to government decision making in general.

Natalist demographers are doing good work tracking birth rates and analyzing how economic policy programs impact them. But their work will languish on the sidelines of public debate unless those of us who care about the issue ignite and lead the cultural conversation.

Ironically, the cultural elite who are the most uncomfortable talking about natalism (that ick factor again), are the ones with the financial means to have more children. Financial supports (such as means-tested benefits) can make up some of this gap and empower the less fortunate to pursue the bigger families they desire, but birth rates will continue to decline overall unless natalists overcome their discomfort and seek to win hearts and minds on the cultural battlefield.

I’ll start. People should have more kids. They should talk about how great it is and we should endeavour to depict that more in our popular culture, our politics and our public conversations. That might mean that we need to do a better job supporting the growth and flourishing of our religious communities and it might mean we should nurture sources of identity and meaning beyond work. Not because of the economics, but because of – yes, Paul Krugman – family values.