The reactions to Prime Minister Legault’s proposal of Tuesday, January 11 for a significant “health contribution” from non-vaccinated COVIDs evade the legal nature that such a contribution could or could not take. It has been described as a “penalty”, “tariff”, “tax” or equivalent to the “insurance premium” to be paid for RAMQ coverage under the general prescription drug insurance plan. However, such a contribution cannot be any of this!
Let’s settle one thing first. Could the contribution be imposed by simple decree under the exceptional powers granted to the government in a health emergency situation by the Public Health Act? A negative answer is necessary. It is true that emergency measures can apply despite any contrary provision of a law, including the charter, but the measure must also be deemed “necessary to protect the health of the population”. It is conceivable that the government may deem it useful or fair, as Mr. Legault pointed out, but its necessity would be difficult to demonstrate; not to mention that its application could then only hold for the time of the health emergency, which all hope to see lifted as soon as possible.
It is clear that such a contribution is prohibited, both by Quebec laws (Hospital Insurance Act and Health Insurance Act) and by the Canada Health Act, if it is related to the consumption of care . According to the snippets of information given by Mr. Legault, this is not the direction the proposal would take, since all non-vaccinated adults would be subject to the contribution, and not only those who are sick with COVID and require care. Justin Trudeau can therefore keep his calm. It cannot be maintained that the contribution would contravene the principle of universal access to care.
What would its nature be? It is not a penalty, since it is not linked to a legal obligation, the government having not mentioned the possibility of introducing compulsory vaccination. Nor is the contribution a premium like the one paid to the RAMQ for prescription drug coverage, since it does not give access to an insurance plan. Is it a rate similar to the health contribution ($200 starting in 2012) introduced by the Couillard government and imposed on all RAMQ policyholders when filing their income tax? No, since it is not linked to access to a service and targets a sub-population with a particular characteristic: that of not having received the COVID vaccine.
What is it ? Resembling a tax, without being one, the health contribution mentioned could fall under the concept of the regulatory charge. It is a financial levy mechanism available to the federal and provincial governments (as well as municipalities, more recently) and recognized by the courts, even if it is not explicitly stated in the Constitution Act, 1867. The regulatory fee has particularities that distinguish it from taxation and its constitutional requirements. But above all, the regulatory charge must, from its conception, establish a solid link with a regulatory regime that falls under the jurisdiction of the collector. It can have two possible objectives: to finance the regulatory regime, or even, through the amount of the levy, aim to influence the behavior of the people subject to the levy towards the achievement of the objectives pursued. The proposal seems to lean more in that direction. As the regulatory fee is not a tax, the duty also limits the persons who may be subject to its levy. Two categories can in principle be targeted: people who benefit from the regulatory regime, or those who create the need for it. The first category is not possible under the universal care scheme, as outlined above. On the other hand, it could be relevant to target the people who increase the risk of interruption of care for everyone, which corresponds entirely to the structure of a regulatory fee. Indeed, the data would demonstrate that unvaccinated people increase the risks not only for themselves, but also for others, through contamination, but also due to the offloading of other health care services that become unavailable to the general population.
In this sense, outside the context of emergency powers, the regulatory fee could represent a particularly well-designed tool for preserving the universal healthcare system in a pandemic situation. If the analysis of the proposal is to continue, it is therefore from this relatively new angle of the regulatory fee that it should be done.