By: Meena Durrani

Introduction

Amidst the COVID-19 pandemic, the call for implementing a mandatory vaccine passport to regulate access has raised important legal and ethical questions for the Canadian government challenged with protecting public health in a way that continues to uphold civil liberties. A vaccine passport refers to a means of confirming a person’s COVID-19 vaccination or immunity status. [1] 

While some argue a vaccine passport unnecessarily infringes on the Canadian Charter of Rights and Freedoms guaranteed to all Canadians,[2] others believe government mandates are not only necessary, but justified so long as the limits to freedoms are reasonable and minimal.[3] 

Charter rights ranging from privacy, safety, mobility, and discrimination based on disability are brought to the fore center of these debates. [4] Similarly, concerns around the risk of vaccine passport systems being discriminatory and inequitable for specific demographics based on gender, race, income, and ethnicity have also been raised.[5] 

Below we look at a few ways in which the government could justify the implementation of a vaccine passport. 

Legislative Justifications

The government is permitted under the Canadian Charter of Rights and Freedoms[6] to limit fundamental freedoms if the government can show that the limitations are reasonable. Historically, the government invoked the War Measures Act, predecessor to the Emergencies Act, during national emergencies such as the First World War and Second World War, which gave the federal cabinet sweeping lawmaking powers to ensure safety.

Block and Goldenberg (2020) contend that the Emergencies Act is the most powerful tool in confronting a national emergency but state the threshold for declaring a “national emergency” based on COVID-19 would require several criteria to be satisfied.[7] 

Furthermore, the government may justify enacted COVID-19 measures using Charter Statements. A Charter Statement identifies potential justifications for any limits a bill may impose on the Charter. Charter statements issued for COVID-19 legislation can be found on the Government of Canada Website.

Additionally, the government maintains that public and private sector entities requiring individuals to present a vaccine passport to receive services, must derive such authority from a statute or public health order.[8]

With regards to privacy concerns, the office of the Privacy Commissioner of Canada has stated that vaccine passports remain “exceptional measures” and “should only be imposed after careful consideration of privacy and other human rights principles.” [9] The Associate Ministry of Digital Government has said that scanning phones of businesses will not store any information about a person or their status.[10] 

Additional principles the government is relying on to protect the privacy of individuals concerning vaccine passports include independent oversight, limiting the collection of information, providing transparency and safeguards around the collection, use, and disclosure of personal information among others.[11] (See here for more). 

Reasonable Limits

In a ruling in 2020, a court held that while a travel ban did violate Canadians’ mobility rights, it was a reasonable limit on rights as it was for the “…collective benefit to the population as a whole.” [12] Justice Donald Burrage of the Newfoundland and Labrador Supreme Court wrote “The courts do not have specialized expertise to second-guess the decisions of public-health officials,” in rejecting a temporary injunction to the federal policy of quarantine hotels. [13] 

Such cases suggest that deference to public health authorities and prioritization of safety of the public at large may be potential justifications for the government implementing similar restrictive measures like a vaccine passport. Proponents of the vaccine passport point out that it is time limited, will prevent the need for more stringent public health restrictions and expedite the return to a normal life.[14]

With regards to accommodations, provinces are now allowing for exemptions to the COVID-19 vaccine under medical grounds, or human rights exemptions.[15] Providing a vaccine passport to participate in public life varies based on provincial guidelines. 

Travel and Documentation

CTV News reports that Canadian travellers will soon need vaccine documentation for almost every mode of transportation, as the federal vaccine mandate for domestic air and rail travel is set to come into effect.[16]  Trudeau stated that a standardized vaccine passport would benefit Canadians by simplifying the documentation needed to travel.[17] 

Although individual provinces are creating the vaccine passports, the placement of a “Canada” wordmark in the upper-right-hand corner is anticipated to standardize vaccine passports so that border agencies, organizations, and businesses across the globe will be able to recognize and rely on these passports as Canadian documents. [18]

Conclusion

By using legislative powers, maintaining transparency through Charter Statements, issuing scientific reports on implementations of a vaccine passport, adapting its approach in response to ethical and privacy concerns and lastly, appealing to the public longing for a return to normal; the government may be able to provide some justification for implementing vaccine passports. However, human rights and Constitutional freedoms advocates continue to raise essential equity issues with regards to the implementation of a vaccine passport. (Click here for a related article)

Disclaimer: This article provides information of a general nature only. It does not provide legal advice nor can it or should it be relied upon. All scenarios are specific to their facts and will differ from the situations in the articles. If you have specific legal questions you should consult a lawyer.

 [1] Office of the Privacy Commissioner of Canada. (2021, May 19). Privacy and covid-19 vaccine passports. Office of the Privacy Commissioner of Canada. Retrieved October 25, 2021, from https://www.priv.gc.ca/en/opc-news/speeches/2021/s-d_20210519/

[2] Globe and Mail. (2021, July 19). Christine Van Geyn: Vaccine passports are an unnecessary infringement on civil liberties. Lexis® – Sign In | LexisNexis. Retrieved October 23, 2021, from https://advance.lexis.com/api/permalink/5c1706d3-6d4c-46be-a0a7-a7e12ef9a0a0/?context=1505209

[3] Globe and Mail. (2021, September 8). Legal questions around rights linger as some provinces bring in COVID-19 vaccine passports. Retrieved October 23, 2021, from https://advance.lexis.com/api/permalink/60e56a84-5912-4292-bd2a-4c5d143cf01d/?context=1505209.

[4] Katz, G. M., Born, K. B., de Wit, M., McKenzie, K., Flood, C. M., Bell, C., Cooper-Simpson, C., Evans, G. A., Gibson, J. L., Hopkins, J., Khenti, A., Lunsky, Y., Maltsev, A., McGeer, A., Morris, A. M., Pai, M., Perkhun, A., Razak, F., Reid, R. J., … Stall, N. M. (2021). Covid-19 vaccine certificates: Key considerations for the ontario context. https://doi.org/10.47326/ocsat.2021.02.39.1.0 

[5] Phelan, A. L. (2020, May 4). COVID-19 immunity passports and vaccination certificates: scientific, equitable, and legal challenges. Retrieved October 23, 2021, from https://doi.org/10.1016/S0140-6736(20)31034-5.; Ryan Tanner, P. D., & Flood, C. M. (2021, April 21). Vaccine passports done equitably. JAMA Health Forum. Retrieved October 23, 2021, from https://jamanetwork.com/journals/jama-health-forum/fullarticle/2779298. 

[6] Government of Canada. (2020, June 8). Guide to the Canadian Charter of Rights and Freedoms. Canada.ca. Retrieved October 23, 2021, from https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html.

[7] Block, E. S., & Goldenberg, A. (2020, March 18). Covid-19: Can they do that? part II: The Emergencies Act. McCarthy Tétrault. Retrieved October 23, 2021, from https://www.mccarthy.ca/en/insights/articles/covid-19-can-they-do-part-ii-emergencies-act.

[8] Office of the Privacy Commissioner of Canada. (2021, May 19). Privacy and covid-19 vaccine passports. Office of the Privacy Commissioner of Canada. Retrieved October 25, 2021, from https://www.priv.gc.ca/en/opc-news/speeches/2021/s-d_20210519/. 

[9] See Footnote 21

[10] See Footnote 21

[11] See Footnote 8

[12] CBC/Radio Canada. (2020, September 17). N.L. travel ban upheld in provincial Supreme Court ruling | CBC News. CBCnews. Retrieved October 23, 2021, from https://www.cbc.ca/news/canada/newfoundland-labrador/nl-travel-ban-supreme-court-decision-1.5727549. 

[13] Geyn, C. V. (2021, April 28). Van Geyn: Quarantine hotel court case should matter to all Canadians. Retrieved October 23, 2021, from https://torontosun.com/opinion/columnists/van-geyn-quarantine-hotel-court-case-should-matter-to-all-canadians.

[14] CTV Winnipeg News. (2021, September 2). Winnipeg News: Local breaking: CTV News Winnipeg. Retrieved October 23, 2021, from https://winnipeg.ctvnews.ca/proof-of-covid-19-vaccination-status-required-to-get-into-these-manitoba-businesses-and-services-starting-friday-1.5570823/manitoba-covid-19-vaccine-card-1.5571733. 

[15] Ministry of Health. (2021, September 14). Medical exemptions to COVID-19 vaccination – health.gov.on.ca. Retrieved October 23, 2021, from https://health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/vaccine/medical_exemptions_to_vaccination.pdf.

[16] See Footnote 18

[17] Aiello, R. (2021, October 21). Feds say provinces will issue ‘standardized’ proof of vaccination for Travel. Retrieved October 23, 2021, from https://www.ctvnews.ca/health/coronavirus/feds-say-provinces-will-issue-standardized-proof-of-vaccination-for-travel-1.5632390.

[18] See Footnote 18