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Would vaccine passports even be legal? C.D. Howe investigates

As Canada begins to ease into post-pandemic life, what exactly that life will look like is still to be determined. One particularly contentious issue is the proposal of vaccine passports. Some jurisdictions around the world are indicating that they will be a requirement for entry, for instance in the EU, which has rolled out a Digital Covid Certificate across all 27 member states. In Canada, Alberta and Saskatchewan have preemptively shot down the idea, while other provinces are still deliberating

Vaccine passports would determine Canadians basic abilities to do everyday activities such as travel, patronize businesses, and attend community events and gatherings. Would such restrictions actually hold up in the courts? 

A new report from C.D. Howe Institute investigates the ins-and-outs of the issue. The authors, five leading experts in health law and medicine at the University of Ottawa, outline some of the relevant legal challenges that may persist when trying to institute such requirements in Canada.

First, whether the passports would violate Canadian’s Charter rights, including mobility rights, rights to liberty and security of the person, freedom of religion and conscience, and rights to equality and non-discrimination. 

They determine that, given that it is well-designed and paired with an equitable vaccine distribution scheme, a vaccine passport regime would likely withstand a Charter challenge. 

Likewise, the authors believe that any privacy issues can be mitigated enough to withstand potential challenges if the concerns are handled with appropriate care in the program design. 

The authors also address how such a program could be implemented within the context of federalism and given the provincial responsibilities of healthcare. In conclusion, they argue that passport gating should be limited to non-essential services, and that wherever feasible, the unvaccinated should be accommodated with rapid testing.

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