Those in support of vaccine mandates and passports often say that “rights come with responsibilities”. What they are implying is that I have a responsibility to get vaccinated for their safety, otherwise, I should lose my rights, for example, to work, fly, eat in a restaurant and play golf. (Note: for those not familiar with the Nova Scotia Health Protection Act Order, even golf requires proof of vaccination.)
Although the Canadian Charter of Rights and Freedoms has no section titled “Responsibilities” or any clauses or terms even implying responsibilities, I will argue my position on the acceptance of their premise.
My argument is framed around two provocative questions.
Is it reasonable to take away my freedoms if I don’t take an action?
Does being responsible include being forced to take a risk in order to maintain my freedom?
Normally, people in democratic, free societies lose one or more fundamental rights for committing an illegal action that actually harms another person. In other words, you actually have to do something. This is not a small point and one that I will come back to.
In Canada, our laws are stratified - the more serious the infraction, the greater the penalty. In order to lose fundamental rights one has to do something fundamentally wrong - something that has or could have seriously harmed another and it can’t just be a remote possibility of serious harm.
Yes, there are countless other infractions that yield punishment, like a temporary license suspension and fine for driving too fast, however, those cited don’t lose their license to live freely. Although regular speeding is not a crime per se, the maxim of “the punishment fits the crime” from 106 BC remains a core principle of justice, be it criminal or otherwise.
Advocates for mandates and passports argue that the unvaccinated represent a safety risk to the vaccinated. That assertion is worthy of a separate debate. Their premise is that the unvaccinated are more likely to spread the virus than the vaccinated and that justifies taking away some of their Charter rights. While there is no evidence to support this assertion (especially now with Omicron), I will accept their premise and continue to argue my case.
When have we ever taken away the rights of an individual for not doing something? I don’t think we have and I don’t think we should unless the circumstances are truly exceptional.
In the current context, for the circumstance to be exceptional would mean there was a high level of certainty in terms of cause and effect - ie. getting vaccinated would materially increase others’ safety. Even if that were the case, another predicate would need to be satisfied - that getting vaccinated has comparable certainty in terms of safety to the individual getting vaccinated (the risk of injury from the vaccine). If you argue this point in favor of vaccination then you are suggesting that it is acceptable to implement policies or laws that force individuals to take a risk in order to maintain their fundamental freedoms. Essentially, you are deeming that your risk from my inaction is greater than the risk to me from taking the action.
Our Charter includes exceptions (permitting infringements) which the proponents of mandates and passports rely on to justify their position. While I would prefer that our Charter didn’t have exceptions, or “subject to” provisions, such as Section 1 - “Reasonable limits prescribed by law, demonstrably justified…” and the Section 33 - “Notwithstanding” clause, I believe its authors did a pretty good job and that the Charter has served us well, at least to this point. I am confident the authors intended that only in the most exceptional circumstances should the fundamental rights of Canadians be taken away. If the vaccines were highly effective in preventing spread and exceptionally safe, there would be a balanced debate. The vaccines are neither. If they were, I am certain we wouldn’t be in this crisis.
Update: January 11, 2022
On January 10, 2022, the CEO of Pfizer, Albert Bourla, was interviewed by Yahoo Finance where he made a number of statements about the effectiveness of his vaccines.
“Two doses of the vaccine offers very limited protection, if any. 3 doses with a booster offer reasonable protection against hospitalization and deaths. Less protection against infection.”
These statements alone completely destroy the basis for vaccine mandates and passports. Clearly, medicine and public policy cannot outrun mother nature. The speed of mutation exceeds that of vaccine development. The hard reality is that the vast majority of the Nova Scotia population have been injected with a pharmaceutical product that is now obsolete. Not surprisingly, the CEO of the largest vaccine supplier is promising a new vaccine that he claims will be effective against Omicron. By the time it’s delivered, Omicron will have already swept through the population, once again, making the vaccine obsolete. This effort isn’t just futile, it’s harmful because vaccines have known rare but serious side effects, including death. Finally, there is the wear and tear (exhaustion) caused by overstimulation of the immune system. Simply put, more is not better.