Would an antivax tax violate the Canada Health Act?

Question

Legault’s plan, however, is markedly different in that rather than simply limiting the activities of the unvaccinated it imposes a financial penalty on them no matter where they are or go in their daily lives. It’s a “fine” as much as a “tax.” And whatever you call it, legal scholars are already warning Legault’s plan could violate the Canada Health Act because it would require some people to pay a special fee to access the public health system. They point out that Canada currently does not penalize people for declining a certain medical treatment even if that results in a cost on the rest of society. And they say it shouldn’t start now.

A different alarm is being sounded by the Canadian Civil Liberties Association. It says Legault’s tax could violate the Charter of Rights and Freedoms’ guarantee of security of the person, which gives individuals autonomy over their bodies and medical decisions. The association is also worried by the possibility — remote though it might seem — that unvaccinated people who don’t pay the tax could be jailed.

https://www.therecord.com/opinion/editorials/2022/01/14/quebec-anti-vax-tax-may-go-too-far.html

This article seems to suggest it's against it, but I am not sure if I can trust the author of that article. Is it really against the law or not?

Answer 1

There is not enough detail on the plan to say anything yet.

But it is important to understand that the Canada Health Act is not an obligatory law but outlines conditions for provinces to receive significant federal contributions to their budget.

Even if the conditions are breached, the federal government would be the only one who has the power to do anything, unlike a Charter violation that gives individuala a cause of action.

It likely does not breach the prohibition of user charges:

2 [...] user charge means any charge for an insured health service that is authorized or permitted by a provincial health care insurance plan that is not payable, directly or indirectly, by a provincial health care insurance plan, but does not include any charge imposed by extra-billing.

[...]

19 (1) In order that a province may qualify for a full cash contribution referred to in section 5 for a fiscal year, user charges must not be permitted by the province for that fiscal year under the health care insurance plan of the province. [...]

since the plan is to impose a financial charge on all vaccinated and such charge is not tied to their access to or actual usage of the public healthcare system.

The accessibility criterion may be another ground of breach:

12 (1) In order to satisfy the criterion respecting accessibility, the health care insurance plan of a province

(a) must provide for insured health services on uniform terms and conditions and on a basis that does not impede or preclude, either directly or indirectly whether by charges made to insured persons or otherwise, reasonable access to those services by insured persons; [...]

But again, it is the access or the provision of services that matters, the other side of equation is not directly touched except that any charge or other measures, if there is any, should not impede or preclude reasonable access to healthcare.

However, even if it does not violate the letters of the law, it violates, in my opinion and when framed like a tax on unvaccinated, the spirits of a universal, accessible health system underpinned by the Act, which is one of the political arguments against the plan.

It would be much harder to argue against the fiscal equivalent, though. A bonus for vaccination would likely be much more politically and legally acceptable and less controversial.