Copying Germany’s compulsory vaccination legislation would be a mistake for Canada

Alarmed by a spike in COVID-19 cases in Germany, incoming Chancellor Olaf Scholz plans to introduce compulsory vaccination legislation. Canada should not copy this bad idea. Federal and provincial governments have done a good job of convincing Canadians of the need for vaccines. Forced vaccinations would stoke political polarization and would probably be overturned by the courts.

What we are doing now we are doing well. Let’s continue. The Germans are looking to make vaccinations compulsory because only 69 per cent of their population is fully vaccinated, according to the John Hopkins Coronavirus Resource Center.

“Mandatory vaccination will save us from having thousands of people fighting for their lives in intensive-care units again next winter,” Stephan Weil, premier of Lower Saxony, told a public broadcaster.

Germany would be joining Austria (68 per cent), which has already moved to implement compulsory vaccinations, and Greece (62 per cent), which is imposing monthly fines on people older than 60 who refuse the vaccine.

But 77 per cent of Canadians are vaccinated, a higher level than any European country except Portugal (87 per cent) and Spain (80 per cent).

Though lives were needlessly lost, especially those in longterm care facilities, in the early days of the pandemic, and the original rollout of vaccines was laggard, on the whole the federal and most provincial governments have worked co-operatively: making vaccines available to all, retaining mask mandates, requiring proof of vaccination for indoor gatherings and at most workplaces.

“Governments have adopted policies that have worked well,” says Anindya Sen, an economist at University of Waterloo who has studied the behaviour of Canadians during the pandemic, “which is why we’re different from what you see in Europe.”

Still, a small minority of Canadians refuse to take the vaccine. Some may require more information and education, but most are just being ornery. These refuseniks can become infected much more easily, can infect others, and may end up in intensive-care units, forcing people in need to forgo important procedures.

So should we drop the hammer and follow our European cousins by compelling them to be inoculated?

The answer, for now, is no.

The federal government lacks the power to legislate compulsory vaccinations, short of invoking the Emergencies Act. And unless the situation seriously deteriorates, the courts would likely overturn any provincial law as an unjustifiable violation of individual rights.

“Based on what we know right now, if Nova Scotia or Ontario decided to impose a mandatory ‘you have to be vaccinated or you are going to be fined’ law, I think it would be challenged in court and I think it would be found unconstitutional,” said Constance Macintosh, a professor of law at Dalhousie University who specializes in health law and policy.

And compulsory vaccination could bring about the sort of political polarization that plagues the United States, where only 60 per cent of the population is fully vaccinated.

While some commentators warn of growing polarization in Canadian society, there is little evidence it exists. The only national party that opposes existing measures to contain the pandemic, the People’s Party, received 5 per cent of the vote in the recent federal election.

A sure-fire way to increase support for populist protests would be to force people to receive the vaccine.

“The social reality is that we live in a multicultural, diverse, heterogeneous society,” said Craig Janes, director of the School of Public Health Sciences at University of Waterloo. Compulsory vaccination, he says, “would be seen as heavyhanded, and I worry it would create more division, more problems, than it would solve.”

Tolerating anti-vaxxers, even at a certain risk to public health, is a necessary evil in a free society. That doesn’t mean we should make life easy for them – they shouldn’t be allowed to work among us, to fly or take the train, to eat in restaurants, work out in gyms, or sit in theatres or arenas.

But if they want to live in isolation and howl at each other and the moon, we should let them. It’s worth the risk to keep the peace.