Living With Covid: Preparedness and Taxes

I've tried to suggest that "living with Covid" needs to mean something more than just trying to roll back the clock and ditch as many restrictions and public health measures as possible in what will be an effort to "get back to normal." Instead, it means recognizing the endemic quality of a dangerous disease. That will necessarily means that we cannot ask the most vulnerable elements of our population to bear the burden our normalcy because that will, in effect, mean that one person will suffer (pay the price) for another's benefits (behaving as if there were no disease). Instead, we need to recognize that there will be changes to the way we live our lives. Most of these changes, I'd argue, do not impose any loss of freedom or challenge rights. They are minor restrictions that can and should be accepted as the minimum action we can take in order to help ensure the security of citizens living under the conditions of an endemic virus. I am optimistic that, with further medical advancements, these kinds of limitations will lessen over time, but I don't think they will disappear entirely. Or, at least I think they shouldn't. We will, for instance, still need to have provide for outbreaks, localized lockdowns, new variants, booster shots, access to new medications, and potentially a range of other factors. 

I hope you can see my point: living with Covid does not mean doing nothing. On the contrary, it means being better prepared for public health emergencies. (If I had my way, I'd extend this to other potential emergency situations, as well, like, for instance, climate. change. I don't means to suggest that Covid is somehow unique as an emergency. But, it makes a good example because it is current and that can, I hope, allow us to also think about other issues and preparedness in general.) One of the problems with the early stages of the pandemic was that Canada was not prepared. I suspect that planners knew we should be but were caught between a rock and a hard place. I've not had to plan for a pandemic but I've been involved in administration and I suspect I know what is going on. 

Preparedness requires money. You need to buy a bunch of stuff and keep that stuff on hand in case it is needed. In the case of Covid, this included PPE, ventilators, hospital capacity, medicines, isolation capacity, among other things. We also needed human capacity on a significant scale. One of the problems with preparedness stuff is that you keep it on hand but don't use it. It is stored somewhere (in basements, warehouses, etc.) and, if you are the planner (the government officials and civil servants in charge of preparedness), you really, really hope you never use it. That's right: you go out and buy tonnes of stuff that sits around with the aim of not using it. 

I suspect you can see why this instantaneously becomes a problem. Governments don't like stuff sitting around unused. For more than one reasons, governments are always looking to cut spending. They look to cut spending because some governments simply disagree with government spending, because they need to balance the books, because there is more than one good cause on which to spend (that is, there are multiple demands for government funding). And, if you are the government of the day, there are opposition parties that are sitting around telling Canadians that if they just elect them, things will get better. They will balance the books or provide a tax cut. In this situation, governments -- just about any government -- will look to control costs. An NDP government (hypothetically) will not necessarily want to cut taxes but they tend to not want to raise them and they tend to want to spend the money on things that citizens need in the here and now. It is not just moderate Liberal or right-wing Conservative governments that can run into this problem. 

The result is that governments tend to skimp on preparedness. You might even feel for them. After all, leaving all this stuff sitting around hoping we don't use it seems like a dead loss, a waste of resources. If we didn't spend the money on stuff that will sit in a warehouse, someone might reason, we can spend it on other things: safe roads, proper water supplies for Indigenous communities, keeping post-secondary tuition within the bounds of reason, doctors and nurses for rural communities, new schools.  The temptation to skimp grows and it grows more and more if you get away with it. If you skimp on preparedness spending one year and we don't have enough PPE on hand for a health emergency but *there is no health emergency* -- well, that skimping seemed to pay off. If you were a Conservative government, you could take that money that you did not spend on PPE (or, other preparedness measures) and turn it into a tax cut. If this goes on for a number of years, well ... that is the problem. Each year you "get away" with not spending on preparedness (which is, again, buying stuff you will not use), a greater gulf opens up between what you have on hand (preparedness) and what you will need if there is an emergency. 

That is what happened in the early stages of the pandemic. Moreover, it didn't just happen to the government (although government is easiest to fault). What we discovered is that same thing was going on in the private health care sectors as well, such as senior citizen care facilities.  We know the Ontario situation best because the situation seemed particularly bad but I suspect it was not unusual. What we saw was that private seniors care facilities simply did not have a stock of PPE on hand. Government regulation was shockingly limited (in some cases, it appears that no inspectors visited facilities). And, human capacity was lacking. Each of these factors combined to create a disaster. Seniors dying and a complete breakdown, in some instances, of services that could only be addressed by the military. 

More recently, we've seen this again and this time, and I will confess, it is more than a bit annoying. We've seen a lack of rapid test supplies and, in NB at least, no public distribution of N95 masks. 

What does all this mean for "living with Covid?" It means that we need to learn to think in a different way. We have to take preparedness seriously. That means that we need to be willing to commit the resources we need to ensuring that we're ready for the next wave even if that wave does not come. Why is this a "bigger issue?" Because it costs money and potentially a lot of money that may never be recouped. If we are taking the idea of having a proactive policy to live with Covid seriously, it will mean that we will buy a bunch of stuff that will -- ideally -- never be used. Where are we going to get the money to buy this stuff?  Two places and they are both the same place: taxes and charges that private businesses levee for things like senior care facilities. You can see why it is a big issue. If we are going to live with Covid, taxes will almost certainly need to increase. 

Is that good? Is that right? Is that fair? I don't have the space to address those issues. It seems to me that we need, however, to address this matter as a society. In fact, a willingness to commit the resources that we need to preparedness might be a sign of the degree to which one is actually willing to live with Covid. 

Living with Covid (Part III): More on Restrictions

In my last post, I tried to argue that it was important both to protect vulnerable populations from Covid and they should not be asked to absorb the cost of "returning to normal."  I want to make this point clearly. If we are going to accept that Covid is endemic, it mean (to me at least) something other than making that statement and ignoring the effects of it as if they did not matter. It means making reasonable provisions for the safety of citizens and ensuring that the cost of our return to normalcy is not paid unduly by one part of society. 

Another thing it means is that there is a need to think about what restrictions mean and what restrictions will need to be in place. This matter, I think, cuts to the heart of the question of normalcy for a significant number of people. While I strongly suspect that the word "normal" has a range of meanings (as I intimated in my last post), one meaning it has for some Canadians is that they can live their lives without the restrictions that were imposed on them as a result of the pandemic. We heard a lot about this in the early pandemic days. People complained about not being able to get to their cottages or see family and friends or play sports, among a range of other things. Different people clearly have specific issues that are closer to their hearts than others. I have friends, for instance, (and this is in no way belittling or disagreeing with them) for whom attending sporting events is paramount. I know others for whom religious services top the list. 

If we are serious about living with Covid, however, we are going to have to think about the character of liberty in our society. The list of actions I noted in my original post on this subject contains a number of actions that amount to restrictions. For instance, masking is a restriction. The requirement says that you must be dressed in a certain way to enter certain premises and this is different (a change) from the way things were in 2019  (in New Brunswick at least).  How can we justify restrictions if our objective is to "return to normal"? Or, put differently, are these restrictions justifiable in a free and democratic society? 

We should begin by acknowledging that this is an issue where "the devil is in the details." It is also dependent on context. To get around these proviso, let me take an example that is as specific as I can. Is the requirement to wear a mask a mask, for instance, an unreasonable requirement that undermines an individual's right? How this question is answered depends a great deal on the specifics. For instance, if a person cannot wear a mask because of, say, a medical condition, then that requirement becomes unreasonable because it threatens someone's life. But, what if it does not?  Let's continue with this example to illustrate the the point about restrictions and rights. 

A number of people who oppose masks have asserted their right as an individual to make up their own mind about their own face coverings. The idea here seems to be that an individual has the right to decide matters related to their self. It is difficult to disagree with that ... except, we already have a bunch of rules that limit people's control of their own actions and we have introduced these rules often for public safety. For example, people who have certain dread diseases do not have a right to enter Canada. The government might still choose to let them in, but entry in that circumstances is not a right.  My behaviour is regulated every day and in a range of different contexts. What is more, these requirements come from a range of different sources: different levels of government, private businesses, minor sports associations, schools, places of worship, etc.  For instance, the government requires me not to drive in excess of a certain speed. If I do (and allowing I am caught), I can be fined. Businesses require me not to loiter, my church requires me to behave in specific ways. The minor sports association for which I coached required me to be certified, etc., etc. I'll bet you could add in some other ones related to your work or recreational activities. 

The upshot of this is that regulation -- restrictions, limitations -- sound really horrible (an affront to freedom!), but they are actually part of our lives. They don't do anything to harm our lives and they do a lot of make improve it. One of my objectives as a coach was to try to introduce kids to games I really liked in ways that allowed them to keep playing the game long after they were on my team. Many of the rules of my minor sports association were intended to do precisely that as well. They restricted behaviour (fans were not supposed to curse at players, for instance) but that restriction was intended to build attachment to the sport (our common aim). While restrictions sound bad, most of us just go about our days, do our jobs, drive at the right speed, lower our speed in school zones, pay for our food at restaurants, etc. Said differently, there is nothing in itself horrible in these restrictions. Not only do we have them, most other societies do and most people in ours support them. 

Does it actually harm me not to be able to break these restrictions. Again, context is important. I might, for instance, need to exceed the speed limit in order to get to my doctor for a life saving procedure. In that context, obeying the restriction would threaten my life. But, in other instances, does it? While there may be six year olds who are upset that they can't drive cars, I suspect most of us are quite happy about it because it keeps us (and, the six year old) safe. I am happy that my neighbour can't legally break into my house and take my TV. That is a restriction on her behaviour (a limit on her freedom) but it is one that is reasonable and acceptable. 

What is more, we voluntarily enter into many of these restrictions. When I volunteered to coach, there were rules I had to accept. My employer requires a certain standard of behaviour from me (I have to be honest, for instance, and do my job). Said differently, far from being an imposition, most of us not only accept certain restrictions but voluntarily enter into more of them. And, there is the rub, what happens when someone does not want to obey restrictions and claims that they don't accept them. We'll need to come back to this because it is a complicated question. For now, you can see my point. We have a range of restrictions in our lives and, unless someone happened to mention it to you, you would not have known about most of them. As a society, we tend not to see these restrictions as a problem, we tend to see them as important for our and others protection, to ensure that businesses and schools can function, and to promote common objectives. 

With that in mind, and allowing no medical problems, let's go back to the original question: does wearing a mask pose an undue restriction? I'd argue not. It does not restrict one's freedom of movement. I can go to the next town over to shop just as I could before. It does not limit my freedom of association (I can still hang out with my friends). It does not limit my freedom of worship (I can attend my church or another one, if I so choose). I do not forego due process because I wear a mask, I don't lose my job, I don't have to give up my blog. Said differently, virtually nothing has changed. I can still go where I want, see who I want, watch the TV show I want, read the book I want, write what I want. The only thing that has changed is that when I do go out in public, I need to wear a mask. 

With *that* in mind, we can ask again: is that a valid restriction? No freedom nor democracy is sacrificed. There might be problems with election in Canada, but those pre-dated masks and they will post-date them, too. No other key rights are lost. The only thing that has gone on is that I have to take a small step (at very little cost, although I think the cost should be zero) and perhaps suffer a bit of inconvenience. Is that inconvenience worth it? If it saves someone's life ... sure it is. More than sure. In fact, consider the message we would be saying if we said "no." What we would be saying is that someone's life is not worth my inconvenience. This is not a threat to a fundamental right or my life or my security of person or my job. What I am saying I am unwilling to accept a minor inconvenience to help protect someone else's life.  If I made that statement, what would it say about me? What message would I be sending to my kids? 

We often like the message as long as it pertains to us, but what if the situation were flipped? What if your life could be endangered because I did not like a minor inconvenience? Or, you partners? Or, your children's? If you establish the principle that someone's life is not worth a minor inconvenience, you have established the principle that *your* life is not worth a minor inconvenience. I think my life is worth more than that. 

Sometimes, I think about these issues in personal terms. With all this argument laid out, would I want to be friends with someone who persisted with an anti-mask perspective. I don't know about you, but I am not at all certain that that is a person I'd want to associate with. If I could not trust them to take simple care for someone else with a minor issue of inconvenience, how could I trust them with something important? 

Living with Covid: Part II (Costs and Benefits)

In my last post I tried to argue for a pro-active approach to "living with Covid." What I mean is something different than this discourse often means which, it seems to me, amounts to doing nothing in an effort to turn back the clock. What is the problem with this approach? Why not just turn back the clock and eliminate public health measures and restrictions? After all, Covid (we are told) is endemic and so we might as well "get on with our lives." 

To me, this is an irresponsible approach to living with Covid. It is an approach that abrogates our responsibilities to provide safety and security for citizens. The security of citizen, in liberal-democratic thought, is, in fact, a fundamental requirement of the state and states that cannot guarantee this security, in fact, abrogate their power and authority. 

That sounds vaguely ominous but if we stop to think about it, it makes a certain level of sense. It is an idea embedded in the western liberal tradition (a tradition with appreciable strengths and weaknesses) and, hence, is not new. It is not some sort of "woke" (another word I don't fully understand nor seem to know what it actually means other than lefty) plot or discourse. It is a foundational element of western liberal democracy. 

It is also irresponsible on an ethical level because it is, often, a way of unloading costs. Let's think about Covid as an economic problem. I don't mean the effects of state spending during Covid and government deficits. Costs are born in a number of ways. They are born through taxes, prices that we pay for masks,  lost time from work, extra expenses at the grocery store, and they are born in health. Those who suffer from ill health (or, worse) from Covid are paying one of the prices of the disease. What I am asking who bear the costs of Covid? We know that Covid affects different populations unevenly. It tends to have more deleterious effects on older people, people with pre-existing conditions, poorer people, and minorities, more than it effects others. Anyone can be negatively effected by Covid, but the chances are much higher that if you are younger and in average shape, you'll get through Covid without dying. You may be laid up for a couple of weeks or you might have at worst cold-like symptoms. Others, however, are not so lucky. 

What happens when we accept (too quickly) that Covid is endemic and continues to circulate in society? We make a judgement about who will pay the health price for this endemic circulation. If I were to say that I don't want restrictions because I want to "return to normal," there is a good chance that I'll get through it. The chances for others are less, however, and what I am actually doing is asking someone else to pay the health price for my liberties. Because I don't want restrictions, I am willing to let other people become sick and, potentially, die, particularly those from vulnerable populations. Is that fair? That can be a tricky question to answer because we can have different definitions of fairness. A better way of putting it is this: should someone else pay the price for me? If all we meant by "returning to normal" is that I would have to pay my own price, then that might be acceptable.  At the least, in my view, it would be a stronger position than asking someone else to pay the price. What do we think about a healthy twenty year old asking an ill sixty year old to pay with their health so that the twenty year old can go to a pub without restrictions? 

I have phrased the question this way because the supposed "right" to avoid health restrictions (to not mask, to not take vaccinations, to not isolate, etc.) is often phrased as an individual right: "I have the right to ...". Individual rights are important. But, we should also not forget that all rights are bounded. In western liberal thought, for example, no right is absolute. It exists to the extend that it does not harm another or limit the rights of others. Thus, for instance, I have a right to walk to down the street, but I don't have the right to push people out of my way and injure them so that I can walk.  They have the exact same right as I do and so have the same right to be walking down the street. The price of my right is recognizing that others have the same rights. They cannot interfere with my rights, but I have to also not interfere with theirs. 

This is important for a range of reasons. Personally, I think it is a more mature and accurate perspective. When I see people asserting "I have a right to" without considering who pays the price of their rights (potentially with their lives), it has always struck me as an immature approach to rights. It reminds me of a kid screaming for a cookie or yelling at their parents to watch a TV show. Surely, our political philosophy and the organization of state and civil society, I think at such times, should rise to a higher level than that? 

But, even if you don't like my analogy (and that can be a matter of personal taste), asserting rights as if they were some sort of trump card is inaccurate because it neglects the fact that we live in a society and that society is required for the exercise of our rights. What do I mean? Let's go back to the security of the person argument. Most of us like security of the person and we should. I'd argue that it is necessary for a good life and that good societies (and we can talk about what a good society is another day), provide for it in one way or another. Have you thought of all the things that are needed for your security of person? We have fire departments, and urgent care facilities, ambulances, and laws, courts, police departments, coast guards, and health regulations. And, that is just the short list. Without the police, we are subject to predation and crime, without fire protection and urgent care we are at the whim of fate, without laws people could break contracts with us without recourse, and the list can go on.

You can see what I mean: the full realization of our rights requires an apparatus of state to make it meaningful. I would argue that the meaningful part of right is that it can be operationalized, that it is guarded, protected, enhanced. Asserting rights without this recognition -- with the recognition that society plays a vital role in the protection and preservation of our rights -- is to make an inaccurate statement about the character and nature of rights. It is to misapprehend society and believe something that is not true. 

I want you to note something. I am not, here, asserting that "society" has rights, which is something I also often hear. I've not given it a lot of thought and so don't have a view on that particular perspective at this point in time. What I am saying is something different: society is necessary for the realization of our rights. It is how we know that fires are put out, criminals are apprehended, that the food we eat is safe. Far from being a drag on our rights, we need society to create the conditions for the full and meaningful exercise of those rights. I am not saying that society does this well, or perfectly, or that it could not be made better. As my friend Mark says, "don't hear what I am not saying."  With regard to Covid, however, what I am saying is that assertions of rights that ignore the significance of society and social context begin from an inaccurate perspective. They begin from the assumption that society (almost) does not exist. 

This is important because "living with Covid" will involve collective social action and, if I am even close to being right, some sort of new restrictions. It is these restriction against which many people rage. I do understand that people want to "get back to normal" because "normal" for them signifies a whole bunch of nifty things (safety, lack of anxiety,  being able to see friends on the spur of the moment). I would that it were true, but I also don't want a society that builds my normalcy on someone else's life. I want a society that works to enhance and make rights meaningful and that, I suspect, will require that we accept some level of restrictions (masking, directionality in grocery stores, restrictions on the numbers of people in buildings, etc.). Maintaining these restrictions is a way of ensuring that we accept the idea that one person should not have to pay the price of another's rights. 

Living with Covid: What does it mean?

Over the last year or so I've heard a lot of people talk about "living with Covid." I will confess that I was not entirely certain what they meant because they themselves were often not clear. In the case of Republicans in the United States (or, at least the Trumpist wing of the Republican Party), living with Covid seemed to mean doing nothing in terms of public health while an unusually large number of people died who -- and this is the sad truth -- did not actually need to die. 

I've met a number of people in my neck of the woods who basically meant the same thing. When they talked about living with Covid, they tended to mean that public health measures should be as limited as possible and restrictions should be as limited as possible. For me, this is a particularly poor way of thinking about what it means to live with Covid. After all, if we flipped the question around and asked about what it might mean to, say, live with Polio or the Plague or Ebola on similar terms, most people would view that as a really bad public health policy. After all, we do have to live with Polio, the Plague, and Ebola, but no one counsels doing nothing about them. We have to live with crime, but does that mean that we will take no actions to limit or control or punish criminals? 

On the other hand, the extreme response on the other end -- lock us down -- is likely unproductive for a range of reasons. These include: no government is going to do it. It is not a viable long-term strategy for the kind of interconnected world in which we live (for example, it assumes a security of supply chains and I am not certain I would make that assumption). I have not seen the data on mental health and I am worry that these two words have become some sort of catch all discourse mobilized in any situation to justify just about any particular policy recommendations someone is making but it is an important consideration. Indeed, I'd argue that it is so important that we should be making specific provisions for it, rather than assuming that "going back to normal" will resolve mental health problems in and of itself. 

So, what does -- or, should -- "living with Covid" mean? I think it should mean several things. Most importantly: I think it should mean that we will need to redefine "normal" and to understand the stresses, strains, and opportunities that it provides. What might this look like? For purposes of discussion, I think it could involve a number of things. A non-exhaustive list might look something like this: 

• Maintaining stricter limits on the number of people who can be in a store or restaurant or gym, etc. 
• Maintaining contact information for patrons 
• Keeping sanitizer at entrance ways and requiring its use upon entry
• Maintain directionality in grocery stores and potentially other venues like restaurants and pubs, where this is possible.  Planning for directionality can be added to considerations in new construction (much in the saw that access requirements were in the past). 
• Vaccination education is a long story, I know, but it should be maintained and there may be a need to restrict access to some venues to the vaccinated. I personally believe that vaccination can also become a requirement for immigration and travel to Canada. I recognize that there are problems with this that will need to be addressed. For instance, not everyone has the same access to vaccines. In the shorter term this will need to be taken into account, but we can maintain the longer run objective as an aspirational ideal. 
• It might also be useful to restrict hours. In my town, for instance, hours for the liquor store and for shopping were more limited at the height of pandemic concerns last year. 
• I personally like senior hours for grocery shopping. One of the stores in my town, for instance, opened early a couple of mornings each week to provide space for seniors to shop (they should shop at other times, but two hours each week were reserved for seniors alone). 
• Masking in public areas may need to be maintained. 
• Public provision of N95 masks (or, whatever the kind of mask that is needed).
• Public provision of rapid tests.
• Ensuring a robust public health care system that can both respond to flare ups and conduct its regular work. 
• Providing a globally equitable access to vaccinations and public health measures. 

I'll venture more slowly into a consideration of education because, the truth of the matter is that I don't know a great deal about public education and how it operates. I'm reticent to start suggesting things to teacher and parents who have a much higher level of first hand knowledge than I. However, I do think there are consideration for higher education that can help and I'll address those in a future post. 

My list above is not exhaustive and there is, of course, room for discussion but you can see what I am trying to suggest. The current discourse is to impose restrictions in response to public health problems when those problems reach a certain level. They are often imposed "with regret" and with the proviso that this will be for as short a time as possible. I find this approach reactive. What we need to do is to think about a pro-active response.  We may not be able to eliminate Covid (I might debate that but let's assume it for now), but that doesn't mean that we can't take steps to provide for as high a level of safety and security as possible. 

There are a couple of questions that my proposals need to answer. I have mentioned in the past that the burden of proof rests on those making proposals. I often hear, for instance, people say "we have to do something." This could be true but what we need to figure out is whether the specific course of action is both useful and viable. The key questions that need to be addressed are:

1. Will these kinds of permanent changes create more harm than good? Are they not undo restrictions that can be accepted in emergency situations but which, under other conditions, become an unwarranted and perhaps unconstitutional intrusion on individual rights (among other things)? 
2. Will these changes actually do any good? 

Let me take the second question first and leave off the first for another day. The short answer is that no one knows the future. We can't provide guarantees on just about anything, but we can make reasonable projections. For instance, ensuring that seniors have a dedicated grocery shopping time does not mean that seniors will not catch Covid (or, something else). But, it can lower the chances and it can proactively address mental health issues with regard to seniors, many of whom are deeply concerned about -- indeed terrified of -- Covid. It seems to me that the great merit of (to use just this one example) of special seniors shopping times is that they can address both the health concerns (providing better protection for a vulnerable population) and mental health concerns (alleviating some measure of fear with regard to being out in public). It is a proactive statement that shows "hey, we are thinking about this issue." And, it quite literally harms no one.  The most I can figure is that there might be a small staffing cost increase for some groceries stores. Moreover, in larger centres, different stores could take turns so that whatever minor costs there might be can be spread around. 

This is just an example. I use it to show how living with Covid should not mean going back to 2019. But, instead, developing a proactive strategy that looks at how we can actually live with Covid. This involves changes to how we do things as as society but we need not resist those changes. They can help address mental health issues and can provide services that ensure a higher level of protection for vulnerable populations. 

Now, I recognize that that one was easy. Other provisions I have suggested will likely be greeted with a higher level of skepticism. There are costs to providing M95 masks and rapid tests. Some may have concerns about limiting capacity in spas and gyms and classrooms. In my next post I will try to address those or at least lay out a way of thinking about these issues. 

Vaccinations and the State (Part II)

In a previous post I tried to show that two of the key arguments against requiring vaccinations miss the mark.  The inflamed rhetoric of "freedom" verses vaccination is an abstract debate that has little applicability in the real world. In the real world, we constraint freedom of action all the time in order to enhance people's freedom. We don't allow people to beat up others to get what they want, we require parents to look after their children, and we have rules that prevent you from lying publicly about other people (defamation). What this means is that once we move the issue of vaccinations out of the realm of a first year debating club and consider how requirements actually function in our society, this becomes much less of a yes/no issue. 

Not only that, while we compel people do all manner of things in our society (not drive until a certain age and passing a test, properly store fire arms, drive below a certain speed on the road), we do these things in the name of freedom.  A quick example: I start a business because I know people cannot lie about my product. Imagine the reverse situation. I start a restaurant and people (say, my competitors) are allowed to say I poison my customers ... I'd likely not start my restaurant. The law against libel and defamation enhances my ability to make meaningful choices.  Likewise, preventing people from beating others up to get their way expands freedom allowing us to do the things we want without fear that someone will come by and beat us up and, say, rob us. 

I also tried to show that the slippery slope argument is problematic. It is not a trump card (we don't know what will happen next so ....), but an argument and that argument can, in that case, be subject to reasonable proofs. It is a question of evidence; not of speculation and necessarily needs to be. If speculation was our policy and legal standard, we would be in pretty bad shape. Why? Because speculation is, necessarily, speculative. It is a hypothetical situation that might or might not happen and different people's speculations can lead in different directions. What one person sees as a reasonable speculative probability; another does not.  Because there is little way to determine which speculation is correct we cannot, without recourse to some kind of evidence, make it the basis for policy decisions. Thus, I see little evidence that a vaccine requirement (something we already have had for a range of vaccines and for certain professions) will cause an erosion of democracy. 

Finally, there are other grounds on which we can and do compel behaviour. We compel behaviour because it is fair. The example I've used before is paying taxes. We have people pay taxes because they derive benefits from public policy. I periodically hear people say things like "I should not have to pay tax X if I don't want." This comment is often made, however, from a perspective of ignorance. For instance, some people might not want to pay the percentage of their taxes that go to fire protection because, they might say, they don't intend to use the fire department. This argument sounds reasonable except when you consider the fact that these people have already benefitted from having fire protection.  Having fire protection makes everyone safer whether you use it or not. It stops fires from getting out of control, increases property values, etc. Same thing with public works (water, roads, bridges). Consider this example. Someone might say "I don't drive, why should I pay a gas tax?" Well, you don't. That is levied at the gas station but you do benefit from roads. Do you buy groceries or clothes or heating oil? Did someone hook up your wifi or did you need to use the hospital? Roads are essential for all of our well being, Hence, we have to pay for them because they don't build or maintain themselves. Hence, paying something for the benefit (even while not as much as the person who drives) through indirect costs is fair. If you did not pay, you would be in a situation where others were paying your share and you were benefitting. You were, in effect, off loading costs onto me. 

Vaccinations can be like that. When you have a large population where most people are vaccinated, it is possible that non-vaccinated people can off-load the cost. Because a large enough people are vaccinated a population immunity of sorts is created and you (or, say, your child) can derive a benefit (not getting ill) without paying the cost (getting vaccinated) because others have paid it for you. Sometimes there is serious confusion about this. I have heard people say "well, my kid is not vaccinated against measles and they didn't get sick." There is a real faulty logic here that we won't get into but you can see what has actually happened. The anti-vax parent has, in effect, offloaded their child's safety onto parents who vaccinate their kids. 

The real problem, of course, is that the anti-vax parent has mistaken safety caused by population immunity for safety in general.  The irony is that it is the very efficacy of the vaccine that makes people safe and allows people to think that they don't need to vaccinate. And, yet, you can see what happens when we are unable to get to population immunity. The situation becomes more grave. It starts to strain resources (say, in the health care system), threatens the economy (there is a further irony here that we don't have time to address), and threatens people who have been vaccinated via breakthrough infections. The key thing about these points is that they are not speculative. They are empirically demonstrable. Thus, we can point to hospitals with increased numbers, for instance, in American states well into their next wave. 

From a rights perspective, the issue is this: where does your right begin and my right end?  This is the old "fire in a crowded building" argument. The standard argument is that your right ends when it infringes on my right and vice versa. I don't have any easy answer to this but rephrased the question might be this: do you have a right to engage in behaviour that we know endangers my life?  In terms of speeding on the highway of driving drunk or misusing a fire arm, the answer is no. 

This is not a lock sync argument. It is, however, a way of saying that compelling vaccinations is an argument that is on a continuum. People who believe that they can easily assert their right against it as if calling something an individual right made it immune to any argument is inaccurate. 

In my view, then, the state is within its bounds to require vaccination for certain jobs, particularly but not exclusively those that deal with high risk populations (say, those living in long-term care facilities or those with health problems). In my view, private institutions (say, universities) are also right in so doing -- although for slightly different reasons that I won't get into. Finally, requirements are also legitimate in those instances where there is a risk of passing on infections that can create dangerous situations for third parties (say, people who work in the public schools) or creating situations for widespread infection. 

Does this mean that we say "my way of the highway" to those who oppose vaccination? I don't think so. I think that we can, depending on the circumstance, do our best to accommodate people.  Such accommodations might range from transfers to other departments, working or studying from home, providing timelines, or perhaps other measures.  Said differently, where possible, we should do what can reasonably be done to accommodate differing perspectives on vaccination. But this would not be a relationship of equals, as it were. The anti-vax position would be accommodated where it could be. I don't imagine, for instance, that students would be forced to learn from home because their teacher refuses a vaccination. I do imagine that it might be possible to transfer that teacher into a different job (say, curricular development) that does not involve interaction with unvaccinated minor populations.  In short, I am not looking for a balance of a half-way point but something that can work for most people while underscoring the legitimacy of requiring vaccination. 

Travel Bans and Constitutional Challenges

This first of what will undoubtedly be a number of constitutional challenges to inter-provincial travel restrictions is set to take place in Newfoundland today. Here is a report on this challenge. There are other organizations and other citizens who are also challenging various restrictions in other provinces. In the case of Newfoundland, the restriction created a heartbreaking situation where an individual was not allowed in the province at the time of a parent's death. Travel restrictions are complicated issues and need to be assessed as such. I favour them and I am about to explain why, but I also want to explain that they are often poorly understood. I hope the courts uphold the restrictions and, if they do not, I would urge governments to revisit their legislation or use the notwithstanding clause (if applicable in this situation) to maintain restrictions while the emergency situation remains.  In making this argument, I am not trying to say that we should not feel sorry for individuals who need to travel for compassionate reasons. Indeed, I think we can make exceptions to the rules and this might be proper grounds for an exception.  But, my point is that we need to be very careful before we argue that an individual's constitutional right to mobility (which does exist; this is not made up) trumps might right to security of the person (aka, to live). 

There are several reasons I support these restrictions: 

The first point to note is that there is no such thing as a travel ban. Inter-provincial travel was restricted but it was not eliminated. That restriction fell onto most would-be travelers, including myself.  But, there was movement across borders where that movement was deemed necessary and there was always the possibility of applying for an exemption. I live in a small town close to the border between Nova Scotia and New Brunswick. Most traffic across this border was stopped (and some people turned back) but not all. Essential travel, transportation of goods, and some people who worked on the other side of the border went across.  This is important because it is not a technicality. It is important because we are dealing with a restriction. That restriction was serious and it did effect people who needed to travel for compassionate reasons. But, travel was not prevented. The technicality here is that we are dealing with an issue of degree not kind. The intent of these restrictions was to prevent the spread of Covid-19 (and I will address that below) and the target audience was non-essential travel, which is the vast majority of inter-provincial travel. In fact, I had not realized how often I traveled across the border to shop, go to dinner, see friends or family, go for a hike, etc. The intent, then, was not to stop all travel but to restrict travel that did not need to take place, like mine. 

Second, this is a temporary measure. The constitution -- and precedence -- allows the state to take temporary actions that it would, in other circumstances, not take. To the best of my knowledge, these kinds of restrictions are nearly unprecedented. That is: they are unique in Canadian history and were designed to respond to a unique challenge. The last global pandemic (Spanish Flu) may have killed 50 million people. By any account this is an emergency situation. The argument against border restrictions seems to be either (a) there is no emergency (which is empirically untrue) or (b) an individual's right to move across the border trumps the authority of the state to introduce temporary measures to respond to an emergency situation. This is an interesting argument -- and one I will address below -- but it should not detract from the fact that we are not talking about a permanent restriction. In effect, the argument against restrictions is suggesting that even temporary emergency measures cannot impede the exercise of individual rights. I find this ethically challenging but the key point to make here is that that is simply not consistent with Canadian history (where temporary emergency measures were introduce to respond to Nazism, terrorism, natural disasters, and other health emergencies) nor the constitution. In point of fact, and admittedly provincial governments may not have used the full scope of constitutional powers available to them, the Canadian constitution provides for precisely this kind of matter through the notwithstanding clause. This clause (the use of which should be restricted as I have argued before in this blog) was created precisely to recognize that there could be unforeseen emergency situations that required the temporary suspension of Charter rights. 

What does this mean? It means that the proponents in this case find themselves in an odd situation. They have to use part of the constitution (mobility rights) to argue against another another part (the recognition that there are emergency situations) should not have effect. Said differently, the proponents in this case need to argue that the constitution both has and does not have authority at the same time. It has authority for mobility rights but not for emergency situations. They must use constitutional authority to subvert constitutional authority. It is, I think, the contradictory nature of this argument -- at once arguing that the constitution should and should not have force and effect -- that leads, I suspect, most opponents of restrictions to argue against them on other grounds (for instance, that there is not really a health threat) because they inherently recognize that this argument is going to be difficult to carry off precisely because it is embroiled on the horns of a contradiction. 

Third, I full recognize that in this case of the individual bringing this case in Newfoundland that the exemption status through which she originally tried to gain access to the province did not have worked well in practice. In other words, an error may indeed have been made. There is appreciable evidence of this: the decision was reversed upon further consideration. IOW, a horrible mistake was made. That is not, I think, at issue. The issue, in my view, is the proposed remedy: to eliminate restrictions. In Canadian law, there is a principle -- by which the courts operate -- called least intrusive remedy. What this means is that the response to the problem should be proportionate to the problem causing the least possible disruption to the legal infrastructure of society. Thus, for instance, Canadian courts rarely "strike down" laws because that would be a serious and intrusive response to a problem. They usually suggest that government's fix the problem (as opposed to the courts) and when they do fix the problem, they usually try to do so in a way that preserves the rest of the law. 

Here is an example: the marriage act (or, whatever its precise name) was never "struck down" to allow same sex marriage. Instead, the courts, after multiple warnings to the federal government, removed the words "between and a man and a woman" (again, or whatever the precise wording was) and inserted "between two people." Why do this? Because, in this case, the rest of the law was not at issue. No one was asking the courts to get rid of marriage. Instead, a defined group of people were, in fact, asking for access to that institution. Moreover, striking down (getting rid of) the entire law would create a legal mess: no one would, any longer, be legally married because the law would no longer exist. You can see why this principle -- least intrusive remedy -- is, in fact, a good way to proceed with judicial review.

In the case of travel restrictions we need to ask if striking down temporary travel restrictions that respond to a national health emergency is, in fact, the best remedy to address what may have been an mistake. I recognize the pain of the individual involved, but I would still argue against the idea that a constitutional challenge is the best way to address a mistake. Even if the courts were to find in her favour, I'd suggest that there are better remedies (ordering the state to develop a better appeal process, for instance) and that striking down a law like this should be a last resort. I'd also argue that the process of interaction between the courts and legislatures should continue. Canadian courts have been notoriously reticent to assert authority over matters that they -- and most people -- view as falling within the competence of the legislatures (the elected representatives of the people). The courts have not rejected the idea that they exercise judicial review over laws (brought to them by citizens), but they have been unwilling to impose remedies without first allowing legislatures a chance to fix the problem. The recent ruling regarding safe third country legislation is a case in point. Here, the courts recognized that this legislation infringed Charter rights but did not get rid of the law. Instead, they imposed a  time limit (six months) and accorded the Parliament that length of time to address the matter. Said differently: the court said "here is a problem that needs to be fixed but we would rather the elected representatives of the people fix it. If you won't in a reasonable length of time, this is what we will do ...."  I could see something similar in this case. I'd disagree with it, I think, but I could see something similar whereby the courts said "you know, we have problems with this but we will let the legislatures fix it up and you have X length of time to do so."

Finally, if it were me and I were lawyers for Newfoundland, I would be arguing the ethics of lifting travel restrictions while a health threat exists. I have noticed a few people in Canada following the lead of American protesters saying something like they don't need to wear masks (I suspect this law will be challenged in Canada, too). And this is similar. I commented before on the way in which travel restrictions impeded access to summer cottages. The people making the case against travel restrictions have a tough job because they don't need to argue just for an unusual remedy (striking down a law because of a mistake in its administration) or against the idea of emergency responses (which are by nature temporary). They also need to argue that one's right to move across a border to, for whatever reason, supersedes my right to safety. 

This is basic political theory. There are here two operative principles. The first is that the state has a basic obligation to ensure the security of its citizens. That is one of its priority and paramount objectives and the reason it provides, say, police and fire protection and a coast guard. The state can be about many things but one of the key things it must be about to security of its citizens. This is, in fact, so important that we have a name for states that cannot do this: failed states. The second consideration is the scope of individual rights. I've noted this before but the old principle is still a good beginning point in discussions on this matter: my right ends where it infringes the rights of another. I might like punching people, as a fictional example, but in that case I need to take up boxing. I can't just walk down the street and start hitting people. My exercise of my right cannot impede other people's exercise of their rights. My rights, to state this clearly, are not superior to their rights. Each person's rights are equal. 

In this case, the opponents of travel restrictions need to argue precisely the opposite of both of these points. They have to argue that the state should not be concerned with the security of its citizens and that their right to mobility is more important than my right to, say, not get a death-inducing disease. On a personal level, I find these arguments difficult to sustain. 

I will sum up: the people bringing this case are not doing anything wrong. They are doing what we all should do in a society that is supposedly governed by the rule of law. They are taking their case to court. That is their right and they are exercising it in a responsible way. No one should fault them for it and we can and should learn from the specific cause and re-assess how we exercise and show compassion to people in the midst of grieving and traumatic personal and familial events. No one should fault people for this case. I still don't think they should win and, if they do, I think there are other and better approaches to dealing with the problem. I'd argue that travel restrictions are working and they are allowing us to gain control over pandemic, at least in a few countries. I'd be worried if we took a step away from that.