Colleen M. Flood
The following op-eds were published on March 27, 2021 in the Toronto Star by University of Manitoba Faculty of Law Assistant Professor Brandon Trask and University of Ottawa Common Law Section Professor Colleen Flood, Research Chair in Health Law & Policy and director of the uOttawa Centre for Health Law, Policy & Ethics. Both gave their kind permission to republish their arguments here.
Colleen M. Flood
Canada has pinned much of its pandemic hopes on vaccines. The cavalry has shown up but only now are we asking serious questions as to whether and when proof of vaccination (vaccination certificates) should be required so as to open up society more safely.
Some critics worry about the human rights impacts of vaccination certificates and, for example, that racialized, and historically marginalized groups may vaccinate in lower numbers. Opposition is based in part on concerns about unequal access to the vaccine itself.
In Canada, each province has processes in place to fairly allocate vaccines, which, are not perfect and rollout has been too chaotic and slow. But vaccine allocation is not inherently unfair within Canada, and while there may be temporal inequalities (young adults not being vaccinated early) the plans are to offer vaccination to most of the population quickly without charging a cent.
Globally, it is true that access to vaccination is far from fair. And Canada must help other countries access vaccines, if only for the self-interested reason of preventing variants and future pandemic waves. But opposition to vaccination certificates won’t help with that goal.
We also need to test the claim that certain groups (for example, Indigenous peoples) are opposed to vaccination and thus will be further marginalized by vaccine certificates. Canadian governments must consult with Indigenous governments as it may well be that Indigenous governments wish to require proof of vaccination for people entering their borders, for example.
And it must be also remembered that most of the deaths and suffering from both COVID-19 and the precautions taken to prevent its spread have fallen upon the elderly, long-term care workers, migrant workers and the poor. If vaccination certificates can help lift precautionary measures more quickly and spur increased rates of vaccination, then vulnerable groups will be better off.
Opponents seem to imagine that there is some real choice as to whether vaccine certificates will happen. In fact, requiring proof of vaccination is and will continue to erupt from a number of external and internal quarters.
For travel, other countries and airlines will require Canadians to show proof of vaccination prior to boarding. The EU has just announced plans for a passport to enable travel between EU countries. Domestically, those provinces that have closed their borders to other Canadians may require proof of vaccination to permit entry in the future, perhaps at first in addition to testing and isolation requirements but eventually supplanting those.
Within provinces, once there is sufficiently robust evidence that vaccination prevents transmission, proof of vaccination may be required to allow large venues to open for concerts, sporting events and so on and perhaps even by universities looking to safely reopen. Proof of vaccination seems also likely to be required by, for example, staff caring for patients in long-term care facilities and in high-risk environments like meat-packing plants.
All of these potential use cases raise a range of genuine and concerns that Canadians governments should address:
It is important in my view that immunization certificates are not “immunity certificates”— having had COVID-19 should not suffice given that this could spur someone to try to be infected.
Our governments should be pressed to regulate the use of vaccine certificates. But wholesale opposition to vaccine passports will merely permit a Wild West to emerge with differing standards that don’t sufficiently protect against discrimination or attend to privacy and fraudulent use concerns.
Opposition from anti-vaxxers, libertarians and some human rights advocates enables foot-dragging by Canadian governments on the need to prepare for and appropriately regulate vaccine certificates. But as the rest of the world moves forward on this issue, our governments will have to scramble to catch up.
Since Canada has no control over the requirements other countries impose on travellers entering their borders, and because of the inapplicability of the Canadian Charter of Rights and Freedoms and provincial human rights codes to other countries, “vaccine passports” are a necessary evil for international travel purposes.
But they should have no role within our borders.
The discussion about domestic vaccine passports relates to the notion of mandatory vaccinations. In contrast to the United States, where mandatory vaccination regimes have been commonplace since they were first ruled to be constitutional by the U.S. Supreme Court in 1905, Canada does not have a history of truly mandatory vaccinations.
Although Ontario and New Brunswick purport to require schoolchildren receive vaccinations, there are significant exemptions available, including for parental objections on the basis of conscience or religious belief. While British Columbia collects vaccination records of schoolchildren, this information is used to preclude attendance only during outbreaks of disease.
Because of Canada’s Charter, it would likely be impermissible for governments to directly require that individuals receive vaccinations — at least without including a broad scope of available exemptions, which would render the “mandatory” label a misnomer.
It is against this backdrop that some provinces are considering the use of domestic vaccine passports in order to indirectly make vaccines compulsory. For instance, Ontario Health Minister Christine Elliott has said that vaccine passports are “going to be really important for people to have for travel purposes, perhaps for work purposes, for going to theatres or cinemas, or any other places where people will be in closer physical contact.”
Essentially, through a domestic vaccine passport regime, governments would create the documentation but then off-load to the private sector the responsibility for checking a person’s health-related information and enforcing societal exclusion for those unable, or unwilling, to provide proof of vaccination.
While the Charter applies to public institutions, it does not apply to the private sector. Because so many everyday activities — including the provision of essential goods and services — are dominated by the private sector, discrimination on the basis of health status, if allowed, would effectively make vaccines mandatory.
Private-sector actors — including shops, restaurants, service providers, and employers — must adhere to provincial human rights codes, which prohibit many forms of discrimination.
Although these codes, which vary by province, permit discrimination where there is bona fide and reasonable cause to discriminate, reasonable accommodation must be offered in those instances. It is therefore unclear how discrimination in relation to health status would be treated through our administrative regimes and courts.
Though there would likely be some legal tolerance for discriminating against unvaccinated individuals in some labour contexts (for instance, those working in the health-care field, if vaccines are definitively proven to prevent individuals from being carriers of COVID-19), we must be vigilant to ensure that discrimination against individuals is not permitted to expand unchecked to everyday activities.
Governments should not be permitted to sidestep Charter rights and liability for the creation of a discriminatory regime simply by claiming that they are not responsible for how government vaccine passports are used domestically by the private sector; this is particularly true where domestic vaccine passport regimes are created precisely with a discriminatory goal in mind — ultimately, to compel individuals to receive vaccinations or live on the margins of society.
While I will certainly opt to receive a COVID-19 vaccine when it is offered, and while I hope that everyone else who is medically able to be inoculated will also decide to receive vaccines, as someone living in a free and democratic society, I have no ability to force anyone to do anything against their will. Governments and private-sector actors should take note.
One of the costs of living in a democracy is that our fellow citizens may do things other than we wish they would. In the end, this is a small price to pay for all the benefits that flow from having meaningful rights.
It is not a contradictory position to be in favour of both rights and vaccinations; we must rail against any suggestion that these are mutually exclusive pursuits. Canada is — and must remain — a free and democratic society.