Canadians are being inundated with arguments that a vaccine mandate (facilitated by QR codes) is a simple solution to the COVID-19 pandemic that is consistent with Canadian culture, values and rights. While this rhetoric from the political and media pulpit is nearly unanimous and increasingly angry, it is characterized by an incredible oversimplification of a complex ethical issue.

Rather than engage in meaningful debate, our institutions have ordained a monumental shift in Canadian public policy. With no significant resistance from the main opposition parties and a media almost unanimously friendly to vaccine mandates, Canada is implementing an overbearing and autocratic health regime without proper consideration.

Canadians ought to weigh the implications of the measures they are implicitly or explicitly endorsing and, in the least, demand robust discussion and debate on the social and political consequences they are likely to incur. To begin, it is important to answer whether vaccine cards are a mundane addition to public policy or an unprecedented infringement on civil rights.

Part 1: Has This been Done Before?

Those supportive of vaccine requirements insist that vaccine passports are commonplace in modern Canada, with the Covid-19 mandate simply being the most recent in a long trend of similar policies. This perspective is surprisingly common, in large part due to a loose definition of what actually constitutes a mandate.

Despite the central importance of the question, discussions of non-Covid vaccine policy found in media and news commonly fail to disclose whether the mandates in question have exemptions or not (and what the exemptions are). This information is uncritically accepted by many because the arguments made are amalgamous with personal experience. For those who have submitted vaccination records to schools previously, showing proof of Covid-19 inoculation today feels no different. The fact that non-Covid mandates have broad opt-out options is often not known.

This common impression aside, school enrollment in most Canadian provinces pre-Covid did not require vaccination. Some provinces did require reporting of vaccination history—a condition satisfied even if reporting a lack of vaccination—and the few provinces that did mandate vaccination allowed families to opt out for medical or religious reasons, or even for reasons of conscience. An exemption that includes reasons of conscience clearly should not be categorized with mandates that allow no exemptions, as a policy`s coercive element is that which makes it a mandate or not.

Other arguments for modern precedents generally include travel and work. Travel vaccination rules pre-Covid, however, applied only to international travel and were generally set by destination countries that have no obligation to uphold Canadian freedoms. And work vaccine requirements were exceedingly rare before the pandemic, found—with great controversy—in hospital disputes involving nurses and influenza vaccinations.

Finally, there is the line of argument that compares vaccine mandates to a much broader category of modern rules. Vaccine requirements, the argument goes, are similar to certain businesses and circumstances requiring proof of ID, or the government requiring the use of seat belts in motor vehicles, or businesses requiring shirts and shoes on their premises, or smoking being banned in many public and private spaces, and so on. There are a few things going on here and time constraints limit the detail of responses to address them, but the problem they all share is that they fail to acknowledge the importance, practically and ethically, of individual bodily integrity.

The continuity from these policies to Covid-19 policies are very strenuous, and even if one accepts their analogous nature, it is still not compelling to argue that because a (tenuously) similar policy has been used in very narrowly-defined circumstances it is necessarily appropriate to expand writ large across society. Allow the use of an analogy: airport security grants far-reaching powers to security professionals, including the ability to frisk individuals (to the point of touching their genitals) and conduct strip searches. Is it compelling to argue that because such practices are used in airports it is appropriate to use them in malls, movie theatres, restaurants, bars, weddings, schools, and private residences? Demonstrating that intrusive screening techniques are (arguably) appropriate in discrete settings does not prove that they should be used everywhere in society. So too with vaccine requirements.

Part 2: Do Vaccine Cards Have Historic Antecedents?

Failing to demonstrate the continuity of modern policy with Covid mandates, many fall back on historical analogues, making the case that if vaccine mandates do not have modern precedents they certainly have historic ones. This is an oversimplification, though it is certainly true that the mandate debate is not new. The struggle between medical autocracy and personal medical choice has been ongoing for over one hundred years. Despite the length of time, a full consensus on the question of choice has not emerged, as efforts to introduce vaccine mandates in Canada’s past were often short-lived, unsuccessful, or fiercely contested. If vaccine mandates, or attempts to implement them, are part of our normative history, so too are religious and conscientious objections—and in many cases, exemptions.

If one still insists on searching for analogous vaccine mandates in the historical weeds, perhaps the strongest to be found are the draconian efforts to combat measles and smallpox in the US and Canada. While it is worth noting that smallpox typically had a 30% fatality rate (and the Windsor outbreak of 1924 had a nearly 50% rate), the more important point is that the search for past policies that align with one position over another is not a useful approach.

Historical precedents for vaccine mandates—or lack thereof—are not arguments for their ethics. They simply demonstrate frequency of occurrence, which no reasonable person would conflate with moral robustness. Clearly the moral character of decisions being made now should be assessed on their own merit. “We did it in the 1800s” is a poor moral rallying cry and certainly not one to be used to justify sweeping public policy measures.

Are vaccine mandates appropriate in Canada today? This is the question that must be addressed.

Part 3: Vaccine Cards and the Canadian Charter of Rights and Freedoms

The fundamental premise of vaccine cards is that the government can strip people of rights with threat or use of force (force, real or threatened, underlies all government mandates) and only return these rights when you—the individual—inject yourself with the medical product the government demands, in many cases then being assigned a (non-figurative) barcode to track compliance.

For those supportive of vaccine cards (or simply indifferent), consider the abstract principle rather than the specific iteration. Does it not cause worry? Even if comfortable with the Covid shots (two and counting), would you be comfortable with a Covid jab every six months? How about the annual flu shot too? Is there no vaccine or pharmaceutic therapy that you would not want forced on you by the government? The principles justifying vaccine cards are sufficiently broad to encompass all manner of medical interventions for the safety of yourself and others. This is a government invasion of bodily autonomy, which brings us to the Canadian Charter.

Section 7 of the Charter states that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” While vaccine mandates may conflict with other Charter sections (freedom of religion comes to mind), Section 7 is a reasonable candidate for a Charter challenge, in part because of existing case law. The Supreme Court case R. v. Morgentaler centres around security of the person and abortion law (think Canada’s Roe v. Wade), but more broadly provides case law precedent protecting people from forced medical care.

Whether vaccine mandates are constitutional is ultimately a matter for the courts to decide (something over-zealous media commentators ought to consider before pronouncing the issue settled), but what can be said is that the definition of rights violations emerging among vaccine-card enthusiasts cannot be correct. The definition goes something like, “unless the government kicks down doors and puts a (non-figurative) gun to people’s heads to enforce compliance, the fundamental right in question has not been violated.”

Apply this principle to any other right and consider again. Take Freedom of Religion from Section 2 and you have the argument that anything short of police entering homes and using force to convert individuals or make them denounce their religion is not a rights violation. In this category of ‘not a violation’ would be entrance denial to restaurants or theatres or even ineligibility for certain jobs on the basis of religion. No reasonable person would set the standard for rights violations so high. It is essential, then, to have a more nuanced discussion of what constitutes medical choice and what consent means in different contexts.

With certainty, the courts—when they inevitably are called to adjudicate the issue—will set the standard for rights violations much lower than direct use of force. And even if the courts allow vaccine passports to stay—as this author predicts they are likely to do—consider that a law surviving a Charter challenge does not necessarily mean that no right was violated; it can simply mean the court determined the rights violation justifiable under Section 1 of the Charter. This ought to engender a sense of caution and remind Canadians that legal rulings do not necessarily protect and preserve ethical principles, as a great many legal cases demonstrate.

Moving forward, Canadians should speak honestly about what vaccine mandates are: a government intrusion into the medical choices of individuals, a violation of fundamental freedoms, and a departure from norms that have defined Canada for a very long time. Any honest conversation about vaccine cards should begin by acknowledging these facts.