How much caution is enough? As the pandemic continues, the benefits of coercive caution may decline, while its human costs rise. Only time will tell whether our recently acquired coercion habit can be broken, with a return to a more normal balance between private rights and social needs.

By Andrew Roman

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New knowledge of Covid-19 often suggests new policies that contradict existing policies. A prime example is the early advice not to wear masks, soon reversed to make masks mandatory. Many journalists called this an illogical flip flop, while others praised it for basing action on the latest and best knowledge.  It now appears that despite, or maybe because of the Omicron variant we are close to the limit of public tolerance for lockdowns and other such coercive policies.

Wearing masks and social distancing are still required.  Masking may be somewhat helpful, but of limited value in avoiding infection because most people wear cheap, leaky masks and often ignore social distancing in busy places like grocery stores, or among the 10,000 cheering spectators at a recent Toronto basketball game.

We now know that infection is transmitted not only by visible droplets but also through invisible aerosols, exhaled for up to 27 feet, even by talking and laughing. These aerosols can float in indoor air and be circulated by heating and AC systems. Thus, 6 feet of distance sporadically observed, with the typical loose masks, may be as much a symbolic gesture as highly effective infection prevention. But it is still popular to insist that responsible citizens must exhibit their concern for the safety of others by masking and social distancing, and, of course, by full vaccination of the remaining unvaccinated.

I personally comply with the masking and social distancing guidelines for whatever benefit they may provide. I am also not opposed to getting vaccinated if it makes sense for the person to do so. At my age and medical condition it made sense for me to get two shots and a booster as soon as they became available. But I am not you, and your situation may differ.

Should Vaccination Be Coerced?

Full vaccination is now required, even if you have had the virus, recovered, and now have stronger natural immunity than the vaccine can provide. Why, for the naturally immune? This coercion is not based on current medical knowledge but on collective moral symbolism.  We have a duty to be good citizens, so prove your goodness by getting vaccinated, whether you need it or not.

It is one thing for government officials to recommend that every adult should have two jabs plus boosters. It is quite another to require it, as a necessary condition for admission to work, university or other important places.  We now know that vaccination doesn’t prevent either being infected or transmitting infections. However, it can reduce the severity of illness of those infected who are not asymptomatic. 

In response to the question “What’s in it for me to be vaccinated?” the answer is clear. If I become infected I’m less likely to become severely ill or to die.  In response to the question “What’s in it for society if I am vaccinated?” the answer is less clear. 

Although vaccination won’t prevent infecting others or being infected, it may reduce — somewhat — the likelihood of transmitting infection or being infected. But the societal benefit of mandatory vaccination depends on a number of factors, not just the percent of the population vaccinated, such as: the percentage of infected people who develop symptoms, the severity of illness caused by the current variant, peoples’ ages and other comorbidities, and the unknown long-term risks from the briefly tested vaccines.  If my vaccination won’t prevent me from infecting you, and won’t even prevent me from getting a breakthrough infection, then the social benefit of mandatory vaccination is unclear. If, with Omicron, the primary benefit of vaccination is for the vaccinated individual rather that for protecting others from infection, then the case for mandatory vaccinations of the small, remaining unvaccinated portion of the Canadian population is now much weaker; likewise, the case for mandatory vaccine passports (except perhaps for international travel).

Forecasters at the University of Washington’s Institute for Health Metrics and Evaluation have made predictions for the US which may be proportionately somewhat similar for Canada:

These researchers also estimate that out of the millions of projected new daily infections, only about 400,000 cases may be reported, as most Americans (and probably also most Canadians) infected with the virus won’t feel sick and may never get tested. They estimated that the infection-hospitalization rate of Omicron is about 90% to 96% lower than delta, and the infection-fatality rate is about 97% to 99% lower. If they are right, that is cause for optimism.

Modeling also suggests that Omicron could peak in mid- to late January in the US, with case rates steeply declining — and activities becoming correspondingly safer again — in February. Canada may be on the same timeline.

Angela Rasmussen, a virologist at the University of Saskatchewan, told Vox that the key determinant of when the pandemic ends globally is how long it will take to make vaccines accessible around the world (and to combat ongoing vaccine hesitancy). Currently, we’re not vaccinating the globe fast enough to starve the virus of opportunities to mutate into something new and serious.

Rasmussen is also modifying her own behavior in light of Omicron, though she emphasizes that’s not the same as going back to a spring 2020-style lockdown:

Although 87.25 % of Canadians age 12 and older are fully vaccinated according to health-infobase canada, compulsory vaccination of everyone remains a popular policy. Why? Because many people have strong resentments against the unvaccinated. As 29 million Canadians were put through the clinic lineups, the jabs and the post-vaccination symptoms, so should everyone else be, they believe, because:

• only selfish people will shirk their social duty to be vaccinated,
• don’t let the shirkers get away with it, make them get vaccinated.

Balancing Individual Rights with Collective Rights

Every person has the right to control the medical interventions that a government may impose upon our bodies. But there is also a collective social need for safety from dangerous and persistent pandemics. Elected officials have the difficult responsibility to set and adjust the appropriate balance between individual rights and collective rights that give rise to public duties. This collective rights idea for public safety is not neo-Marxist, it goes as far back as Roman law. The maxim “Salus populi suprema lex esto” is Latin for: “The safety of the people should be the supreme law.” That is found in Cicero’s De Legibus (written around 45-50 BC).  

That said, however, compelled medical treatment via injection is profoundly invasive for a democracy, especially when the average Canadian death rate from Covid-19 to date is relatively low (apart from those with comorbidities like age over 70, diabetes or serious heart disease) and is likely to be even lower with Omicron. Theoretically, the death rate could have been a lot higher if many countries hadn’t taken extreme measures like lockdowns, but that would be difficult to prove, given the experience of Sweden, which imposed no lockdowns and kept the schools open, but didn’t have an extraordinary death rate. 

Deaths With/From Covid Versus Excess Deaths From All Causes

Excess deaths are calculated by comparing deaths from all causes this year minus expected deaths based on the average of the previous five years. I have been unable to find good recent data for Canada on how many total excess deaths there have been during the pandemic, from strokes, heart attacks, cancer, opioid addiction, mental health problems and other illnesses as well as from/with Covid. People have avoided going to emergency rooms for fear of catching Covid, and hospitals have had to keep delaying or cancelling essential treatments. Consider a person with a cancerous brain tumour that doesn’t yet need emergency surgery, but when it has grown to that emergency level the surgery may be too late. A policy solely addressing Covid-19 deaths that largely fails to reduce total deaths may, literally, kill more people than it is saving.

The Weakening Case for Mandatory Vaccination

The usual policy explanation for the high level of coercion with Covid-19 is that we should exercise an abundance of caution. But how much caution is enough? As the pandemic continues, the benefits of coercive caution may decline, while its human costs rise. And an abundance of caution often has an abundance of costs. As it is difficult to argue against something as vague as caution, coercion in the name of caution is too easy a path to more coercion. Continued coercion creates habituation to coercion, by those doing the coercing as well as those receiving it. The coercion habit may be difficult to break after legitimate justification for coercion has passed.

The downhill toboggan ride to increasing coercion is accelerated by scary media stories of Covid case numbers, presented out of context. Words like a “spike” in cases to describe an Omicron infection increase over the recent brief lull in infections is misleading. The so-called “spike” may also be the result of the sudden increase in the availability of test kits. If X tests last month showed 10 % positive and 2X tests this month show 10 % positive we would have twice the number of cases without any change in infection rates. Similarly, the story of the “surge” in the number of hospitalizations from Omicron is compared to a recent lull in hospitalizations. But the current number of ICU cases is nowhere near the previous peak. This shows decreasing, not increasing risk, calling for less coercion, not more of the same.

Is There Light at the End of the Omicron Tunnel?

Governments can’t coerce what they can’t control. Ironically, the rapid infectiousness of the Omicron variant may create an unintended decrease in coercion. That’s because the suddenly increased demand for testing has exceeded even the recently increased supply of test kits. If health officials can’t determine who, or how many, are infected they have lost control.

As Robyn Urback explained in her Globe & Mail column of January 1, 2022, if you woke up this morning in Canada with Covid-like symptoms:

Conclusion

2021 was a year of abundant caution and abundant coercion. Looking ahead to 2022, although the Omicron numbers in no way justify throwing caution to the winds, they do justify reducing its abundance and reducing the resulting coercion. Covid-19 is not the only serious health problem our society faces, and all the rest have been ignored for far too long.  

Experience from previous virus pandemics would suggest that viruses morph from pandemic pathogens to become “endemic” sources of disease within a year and a half or two of emerging. (According to Wikipedia, an infection is endemic in a population when it is constantly maintained at a baseline level in a geographic area without external inputs. For example, chickenpox is endemic in Canada, but malaria is not.) But a different virus could mean a different pattern of evolution.

Ongoing mutations of more infectious but less severe Covid-19 variants will probably not be eliminated any time soon, so we will have to learn to live with them. Only time will tell whether our recently acquired coercion habit can be broken, with a return to a more normal balance between private rights and social needs.

Andrew Roman sits on the board of the umbrella organization Probe International belongs to (see Energy Probe Research Foundation).

Andrew Roman recently retired from a successful law practice spanning 45 years. He has practiced administrative law at all levels of court, including the Supreme Court of Canada, and has appeared in courts and administrative tribunals in all the Canadian provinces and territories. His practice has included advising and representing professional regulatory tribunals, both for the tribunals and for members subject to disciplinary proceedings.

Mr. Roman is the author of more than 90 publications, including reports, articles, monographs and a book. His writings have been cited in judgments of the Supreme Court of Canada. He has taught administrative law and advocacy as an adjunct faculty member at four law schools.