The question of the scope of vaccine passports often opposes the freedom of the non-vaccinated to the coercive power of the State, the right to autonomy of the former to the repressive authority of the latter.
Posted at 11:00 a.m.
To pose the problem in this way is not inaccurate, but suggests that freedom has only a negative dimension, that it has no positive counterpart, and that the State is only an abstract entity rather than the representative of very concrete citizens.
Negative freedom or freedom-independence, best rendered by its English equivalent freedom from, refers to “the right to an irreducible sphere of personal autonomy where individuals can make inherently private decisions without interference from the state” (Godbout, Supreme Court of Canada, 1997). Freedom-independence protects us against the coercive power of the state (which can however reasonably limit this freedom). It is this form of freedom to which the non-vaccinated claim themselves.
Let us point out immediately, however, that negative freedom, as defined by the courts, relates only to the freedom to make existential choices. As the Supreme Court has said (Malmo-Levine, Supreme Court of Canada, 2003), “the scope of the Constitution cannot be extended to protect any activity that a person chooses to define as essential to his or her way of life. There are people who choose to smoke marihuana, while some are obsessed with golf and others compulsively gamble. […] A society that extended the protection of its Constitution to such personal preferences would be ungovernable. [D]Such life-style decisions are not fundamental choices that partake of the very essence of what it means to enjoy individual dignity and independence. “
As evidenced by this decision, the desire to access non-essential businesses (SAQ and SQDC) or to practice non-essential activities has nothing to do with what the fundamental law of the country intended to protect.
By the way, the United States Supreme Court (Jacobson, 1905), the French Constitutional Council (Decision No. 2021-824 DC, 2021) and the European Court of Human Rights (Vavřička, 2021) have found perfectly valid mandatory vaccination strategies and vaccine passports, insofar as the limits imposed have been deemed proportionate to the legitimate aims pursued.
Not only is the freedom-independence argument very weak, but it ignores that alongside the right to be free to do something is the right to be able to do something (freedom- capacity). The individual autonomy guaranteed by freedom only makes sense if we have the means to exercise it, which the English expression freedom to makes it perfectly fine.
Children deprived of school, my students stuck at home, patients whose operations are postponed can all claim respect for their freedom, that is to say their right to access the means that will allow them to project themselves in the future as autonomous people capable of making meaningful choices. The right to health and the right to education are the cornerstones of freedom-capacity. And these rights, it is the State, and the citizens through it, which can ensure their realization. The state is not just repression.
Freedom, contrary to what they say, is not a sphere of selfish impermeability, but the result of a social relationship. Robinson Crusoe had nothing to do with freedom. The personal autonomy of each depends on the will of the majority (speaking through the mouth of the State) to remove him from his dependence in a given sector (freedom-independence), just as much as on the will of this same majority of give them the means to flourish by guaranteeing them a competent education system, an efficient health system and a social safety net allowing them to escape poverty (freedom-capacity).
In short, it is simplistic to say that the pandemic simply opposes the negative freedom of some to the power of the majority or of the state. Rather, it forces us to come to terms with two forms of freedom and with a definition of personal autonomy that takes into account the fact that it cannot truly flourish without the help of others.
It is therefore a clash of freedoms that we are talking about. No one holds the moral upper hand in this debate.
That said, the imposition of a vaccination obligation, or a vaccination passport limiting access to essential businesses or activities, cannot be done cavalierly. The legality, but also the legitimacy, of the vaccination strategy, that is to say its social acceptability, will depend on the nuanced nature of the methods of its implementation.
It is therefore absolutely fundamental that this strategy be adopted by means of a law and not a simple decree; that its adoption be preceded by a multi-party parliamentary process accompanied by consultation with medical authorities, trade unions, experts, employers, etc. It is possible to do such a thing in a relatively short time. On this occasion, the objectives of this exercise, the implementation mechanisms and the types of sanctions that will be the most appropriate can be specified.
If we reduce freedom to the right to say no, then inevitably we will say no to those who, the youngest in particular, understand freedom as the possibility of embracing life with enthusiasm and with a minimum of hope.