Every Wednesday, our parliamentary correspondent in Ottawa Marie Vastel analyzes a federal political issue to help you better understand it.
Quebec has successively adopted some of the most restrictive measures in the country to try to manage the pandemic. François Legault’s counterparts have sometimes followed suit, elsewhere in Canada, or on the contrary have often judged that he was going too far. But this boldness of the Legault government contrasts with the timidity it demonstrates in terms of compulsory vaccination of state employees. On this front, Quebec is almost the only one to have resisted. The government mentions legal constraints; others see it as an unexplained political decision.
Ten of the thirteen provinces and territories have imposed compulsory vaccination on their civil servants, or at least on their health care workers (in the case of British Columbia, Ontario and Alberta). Prince Edward Island and Nunavut are, like Quebec, a band apart. Everywhere else, the recalcitrant risk unpaid leave. Although in Manitoba, New Brunswick, Nova Scotia, the Northwest Territories and Saskatchewan (which only requires vaccination for its Crown corporations), the rapid testing option is permitted.
At the federal level, civil servants, contractors, workers in the rail and airline industries as well as cross-border truckers must prove that they are fully vaccinated.
“It is in Quebec that there have been the most severe measures in various sectors. But the government has been very reluctant to impose compulsory vaccination for certain activities, such as employment or education,” observes University of Ottawa law professor Carissima Mathen.
François Legault was the first to introduce a vaccine passport. He was the only one to declare a curfew. And he aroused the indignation of English Canada by announcing the imminent imposition of a health contribution on the unvaccinated.
Although the Legault government is determined to force the hand of the latter in society, it refuses to do so by imposing vaccination as a condition of employment in the public sector.
Behind the scenes, we talk about legal considerations. The right to work and earn a living is protected by the Canadian Charter of Rights and Freedoms. Violating it would be too great an infringement of a fundamental right, and the measure would be likely to be invalidated by the courts, according to Quebec.
However, the federal government and those of the majority of the provinces have gone ahead, presumably with their own legal opinions in their pockets. Ottawa ensures that its policy complies with the Charter, the Canadian Human Rights Act and the collective agreements of its unions. The Canadian Human Rights Commission also ruled at the end of October, explaining that “the rights are not absolute”, that “reasonable limits can be imposed […] when it comes to public health and safety”, and that requiring “that a person be vaccinated in order to be able to work or travel is not discriminatory”.
Professor Mathen and her legal colleagues surveyed by The duty are all of the opinion that a government could try to justify before the courts an infringement, in the context of a pandemic, of the rights guaranteed by the Canadian and Quebec charters. Or invoke the notwithstanding clause, to get rid of it.
“I am surprised that a government that does not hesitate to invoke the notwithstanding clause frequently makes these considerations in connection with fundamental freedoms a matter of principle to justify its decision not to go ahead”, observes Université de Montréal law professor Stéphane Beaulac.
Even when the Legault government tried to impose vaccination on health care workers (before backing down, for fear of running out of staff), there was never any question of imposing it on the entire public sector.
It must be said that some have criticized Justin Trudeau for having imposed a purely “political” directive on hundreds of thousands of civil servants holed up alone at home working from home.
The Quebec Minister of Labour, Jean Boulet, pointed out recently on Radio-Canada that “in the public sector, we do a lot by using telework, which is really the work organization that best allows fight against the effects of the pandemic”.
This poses an ethical problem, an image problem and a problem of state legitimacy, because the state itself is pushing for everyone to be vaccinated, but its employees are not obliged to be.
But it is not this explanation that is brandished by the Legault government, which rather sticks to purely legal arguments.
Political scientist Daniel Béland also suspects “political and perhaps even electoral issues”.
Compulsory vaccination of public sector workers would force the hand of a few tens of thousands of them, while expanding the vaccination passport would have a wider reach in the general population. “But this poses an ethical problem, an image problem and a problem of state legitimacy, because the state itself is pushing for everyone to be vaccinated, but its employees are not obliged to do so. to be,” adds the professor of political science at McGill University.
The Legault government may also wish to avoid, a few months before the elections, provoking the ire of its thousands of civil servants who are unionized, “very well organized” and “geographically concentrated in an important region for the CAQ in terms of policy”, in Quebec.
This limit to the remedies that François Legault is ready to consider to finally convince the non-vaccinated does not date from yesterday. But it clashes more and more, for a prime minister who seeks to tighten their screws even more and who has never hesitated to be the most restrictive in Canada.