The Trudeau government’s refusal to budge on its vaccine mandates has increasingly little to do with public health
Author of the article:
May 05, 2022
On May 2, in a landmark judgment, India’s Supreme Court, the highest court in the land, ruled that “no one can be forced to be vaccinated” and that “bodily integrity and personal autonomy” are protected under the law as a constitutional right. Citing emerging scientific opinion “which appears to indicate that the risk of transmission of the virus from unvaccinated individuals is almost on par with that from vaccinated persons,” the judicial bench went on to argue that since infection rates are currently low, restrictions imposed on the unvaccinated, including those that curtail their freedom of movement and access to welfare and other services, are not “proportionate,” and urged organizations that imposed these restrictions to review these measures and modify them as necessary.
The court was responding to a plea filed by a former member of the country’s national advisory group on immunization, seeking disclosure on vaccine clinical trials and the posting of vaccination-adverse events data. The plea argued that Indian states’ legislation mandating vaccination for government employees and as a precondition for accessing welfare and other services, including travel in public transport, was a violation of basic individual rights and, therefore, unconstitutional.
The federal government in India itself has not issued any vaccine mandates and has always maintained that it is a voluntary, individual choice. The judgment was rendered even more extraordinary by the fact the directives were limited to the “present situation alone,” and the court upheld government restrictions on the unvaccinated “if the situation so warrants,” thereby striking a delicate balance between a person’s right to choose and the government’s responsibility in protecting public health.
The judicial bench … urged organizations to review these measures
What is fascinating is that this extraordinary Supreme Court judgment in India is in the context of a Westminster system, a system originating in the United Kingdom but also, of course, shared by Canada. Unlike in the United States, with its tradition of activist courts that are not shy to push back against the executive or legislature, and are highly protective of constitutionally enshrined civil liberties, the Indian judicial system, like the British and Canadian systems, tends to exhibit a culture of deference to Parliament. While India’s Supreme Court has clearly circumscribed the extent to which the federal or state governments can impinge on individual rights in the interest of public health, it’s noteworthy that nothing comparable has occurred in Canada. This is striking, given the similarities between the two countries’ judicial systems.
Why haven’t we seen greater pushback from the courts in Canada against federal and provincial vaccine mandates? While there have been numerous challenges at both the federal and provincial levels, arbitrators have been exceptionally deferential to the mandates, agreeing, in particular, with the federal government’s rationale that vaccine mandates are justified to protect the safety of the workplace. Given this, and the fact that courts are loath to intervene, federal government vaccine mandates in Canada have remained almost entirely intact.
Most recently, for example, arbitrators ruled against the Canadian Union of Postal Workers in that union’s national grievance against Canada Post’s mandatory vaccination requirement. It’s very unlikely that any future such challenge will have any chance of success. Lifting vaccine mandates will, therefore, ultimately be left to the discretion of governments and will not be in the hands of the courts or (nominally) impartial arbitrators.
The niceties of our legal system’s culture of deference aside, Canada is increasingly an outlier amongst comparable advanced Western democracies in how our governments, especially the federal government, are handling the end game of the pandemic. On May 2, Switzerland, and Greece at the same time, lifted all remaining pandemic-related travel restrictions. Visitors, and returning residents, no longer need to show proof of vaccination, proof of recovery, or a recent negative test.
Even New Zealand, which had one of the strictest pandemic responses in the world while pursuing a “zero Covid” policy, has not required domestic travellers to provide proof of vaccination or a negative COVID test to fly domestically since April 13, and, as of May 1, international travellers no longer need to show proof of vaccination to board a flight.
Given that other advanced Western countries are walking back pandemic rules and clearly have the end game in sight, why is the Trudeau government not easing its vaccine mandates? It’s becoming increasingly clear that, at this point, it’s not about the science. The rationale for mandates was originally to curb transmission of the virus, but, in the wake of the highly transmissible Omicron variant and its newer sub-variants, this renders vaccine mandates absolutely nonsensical, given that the vaccinated — even those with three or even four doses — are becoming infected and are transmitting the virus. This was even recognized by the World Health Organization in an April 2021 policy brief. For whatever it’s worth, the WHO says vaccine mandates should be used “only as an absolute last resort.” Many countries have gotten the memo — but not the Trudeau government.
Bizarrely, Transport Minister Omar Alghabra, responding to a question in the House of Commons, defended travel-related vaccine mandates by pointing to the life-saving properties of vaccines. This is disingenuous, at best. While someone who is vaccinated is likely going to experience less severe symptoms than someone who is unvaccinated, and more likely to avoid serious illness or mortality, travel-related vaccine mandates were never about the seriousness of symptoms but about curbing transmission. With the advent of Omicron, this rationale has entirely fallen away.
This rationale has entirely fallen away
The bottom line: the Trudeau government’s refusal to budge on its vaccine mandates, which no longer have a sound public policy basis, is all about politics and has increasingly little to do with public health. The mandates are a perfect wedge issue for the Liberals, allowing them to continue to demonize the unvaccinated. While no one will admit it, of course, nothing could be better politically for the Liberals than, say, an anti-vaccine protest turning violent, as an increasingly demoralized, marginalized and frustrated group finds its patience wearing thin as they continue to face taunts from the government and its cheerleaders in the commentariat. There is also no better way to smear political opponents, especially in Conservative ranks, who have gone on record to show their sympathy and support for anti-mandate protesters, such as the erstwhile Freedom Convoy in Ottawa.
Those protests were almost entirely peaceful, despite the aggressive pushback by police, especially after the Trudeau government invoked draconian emergency powers. The recently concluded Rolling Thunder convoy, also in Ottawa, with a different set of organizers, was also largely peaceful, with law enforcement out in full force. However, according to some individuals who attended the event, the protesters seemed a little more willing to push the edge of the envelope when facing off against the police than during the Freedom Convoy. Again, according to some present, the more recent protest had a darker edge than the previous one, although it remained peaceful. But it’s pretty clear that, with each subsequent protest, those involved are increasingly fatigued, demoralized, and perhaps have less to lose if they more directly confront law enforcement.
The predetermined Trudeau government narrative, that the Freedom Convoy protesters were a despicable group of violent insurrectionists and white supremacists, was proved patently false.
However, as the government digs in its heels and continues to demonize those unwilling to fall in line with its illiberal mandates, the popular narrative attempting to delegitimize the protesters as violent may end up becoming a self-fulfilling prophesy — and if that happens the buck, and the blame, stops with the Trudeau government.