Legal questions around rights linger as some provinces bring in COVID-19 vaccine passports

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Several provinces are entering uncharted waters around the legality of vaccine passports that require patrons of a wide variety of establishments to be fully vaccinated with the COVID-19 shot.

Manitoba and Quebec have brought in vaccine passports in recent weeks, while British Columbia and Ontario announced they would implement such policies beginning later this month. On Tuesday, Newfoundland and Labrador Premier Andrew Furey announced the province would follow Quebec’s lead and introduce a vaccination passport that uses a QR code, while Yukon Premier Sandy Silver said the territory was launching an online vaccine credential system. Officials in New Brunswick and P.E.I. have said those provinces will likely also institute their own vaccine passport systems soon.

Governments are permitted under the Charter of Rights and Freedoms to limit basic freedoms if they can show why such a limit is reasonable. But there is scant Canadian case law on what is reasonable in a health emergency.

The creation of wide no-go zones on the basis of vaccination status – in places that governments deem non-essential, such as gyms, restaurants and sports events – has become a focus of political jockeying in the federal election and of angry, even violent demonstrations on the campaign trail by those who oppose vaccine mandates.

But if vaccine passports are a topic of heated political and philosophical dispute, they are not entirely controversial in a general legal sense.

“A government can’t hold you down and inject you with a vaccine without interfering with your life, liberty and security of the person’s constitutional right,” David Fraser, a privacy and employment lawyer in Halifax, said in an interview. (Quebec’s Public Health Act does authorize compulsory vaccination in an emergency, but such a policy has not been implemented.)

“But nobody’s doing that. They’re saying, ‘Here’s a bunch of things you can do if you’re double-vaccinated – and you can’t do them if you’re not.’ ”

Even so, Mr. Fraser said, to be compliant with the Charter of Rights and human-rights codes, any such laws should accommodate “anyone who cannot be vaccinated on the basis of health condition or a bona fide religious belief – which doesn’t include [that] you’re just upset about something you read on Facebook.”

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Two provinces, B.C. and Manitoba, do not allow exemptions to date as part of their vaccine passport policies.

Brandon Trask, an assistant professor of law at the University of Manitoba, said he is concerned that those provinces’ guidelines fly in the face of long-established requirements for reasonable accommodations. Given that approach, he said, they should have considered using the Charter’s notwithstanding clause, which allows provinces to override the protection of certain rights.

“Governments should only be bringing in laws that they have reason to believe are actually legal, unless they’re going to do something through the notwithstanding clause,” he said, noting that he himself supports vaccines and is fully vaccinated. “But then they have to wear the political risk.”

Manitoba officials say there simply isn’t a medical justification for any such exemptions.

“The government of Manitoba consulted with our Medical Advisory Committee, which is comprised of a wide range of specialty physician, pharmacy and nurse leaders,” said a statement from the provincial Vaccine Implementation Task Force e-mailed to The Globe and Mail. “The advisory committee did not identify any health conditions that would be a permanent contraindication to the vaccine. However, we continue to actively assess this situation and will adjust our approach if it becomes apparent that there are health conditions that would preclude vaccination.”

B.C.’s Provincial Health Officer Bonnie Henry disagrees on that point, noting there may be rare cases where people cannot get the shot for medical reasons – but in rejecting accommodations, she stressed the temporary and non-essential nature of the activities restricted by the province’s vaccine card.

“This is a temporary measure that is getting us through a risky period,” she told a news conference last month. “If there are those rare people who have a medical reason why they can’t be immunized, these are discretionary events that we’re talking about.”

Legal observers say noting policies are simply temporary may be legally questionable as a justification for any violation of rights. What is or isn’t discretionary may also not be a simple matter, says Robert Russo, a lecturer at the University of British Columbia’s Allard School of Law.

Consider restaurants, for instance. “If you prohibit someone from going with their family for an extended period of time, it might be seen a bit differently,” he said. Or someone with a valid medical reason for not being vaccinated may find themselves unable to attend exercise classes at a gym because of the policy, he added.

The Canadian Constitution Foundation (CCF), a legal advocacy group, has written to the governments of B.C. and Manitoba to say it is prepared to launch a court challenge unless the provinces make accommodations for individuals who cannot be vaccinated for medical or religious reasons.

Winnipeg resident Sarah Tait, 30, says she was vaccinated with a single dose of Pfizer and experienced heart inflammation so serious she had trouble walking up a flight of stairs – though she regularly runs several times a week. As a result, she was put on anti-inflammatory medication, and her doctor advised her not to get a second dose. As she was born with only one kidney, she had to have her renal function checked every two weeks while taking the medication, she said.

Being excluded from certain activities has harmed her mental health, she said. “It feels like we’re being punished because our bodies couldn’t properly take in the vaccine and we had a bad reaction.”

Christine Van Geyn, litigation director of the CCF, said some people face a difficult choice because they have health issues such as blood clotting or autoimmune disorders or pre-existing heart inflammation that may put them at greater risk from both the vaccine and COVID-19 itself.

“This is a very difficult trade-off for some people to make, and the decision is deeply personal,” Ms. Van Geyn said. “They resent the government trying to force an outcome in one direction through policies like vaccine passports.”

One court last year struck a note of deference to public-health orders. The issue before Justice Donald Burrage of the Newfoundland and Labrador Supreme Court was whether restrictions on entering the province violated Canadians’ mobility rights.

“The courts do not have the specialized expertise to second-guess the decisions of public-health officials,” he wrote, describing the border rules as a reasonable limit on rights.

An Ontario court struck a different note earlier this year when asked to call a temporary halt to the federal policy of quarantine hotels. While he rejected the request, Ontario Supreme Court Justice Frederick Myers wrote: “Our rights are never more fragile than in times of national emergency.” He cited the internment of Japanese Canadians and Japanese Americans during the Second World War.

In a nod to labour laws protecting the autonomy of workers, the vaccine passport systems in provinces which have instituted them do not cover employees. Employers may still impose their own requirements.

When it comes to employees, the vaccine issue is different than for visitors or customers, since workers could face a choice of either being injected or being fired if full vaccination was required at their workplace. But workers’ right to bodily integrity is protected, including in Quebec by the province’s Charter of Human Rights and Freedoms and the Civil Code. On the other hand, employees also have the right to a safe workplace, and employers have the obligation to protect workers’ health, safety and dignity.

“There’s very much a balancing act that has to be done,” Montreal lawyer Janet Michelin said, adding: “The courts generally are very respectful of the rights of people to refuse treatments or to refuse invasive bodily procedures.”

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