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Vaccine passports: Judge-proof by design | Heather MacIvor

Tuesday, October 26, 2021 @ 1:42 PM | By Heather MacIvor

Heather MacIvor %>
Heather MacIvor
As these words are written, public life in Ontario is slowly reviving. Indoor spaces that were dark and deserted for months on end are filling up. Schools have reopened. White-collar workers are trickling back to the office. This gradual return to pre-pandemic society is made possible by vaccines that prime the human immune system against the COVID-19 virus. And because the vaccinated look just like the unvaccinated, governments are creating mechanisms for fully immunized people to identify themselves before entering places with a heightened risk of transmission.

On Oct. 15, lawyers affiliated with the Calgary-based Justice Centre for Constitutional Freedoms (JCCF) filed a Notice of Application in the Superior Court of Justice in Toronto. They argue that Ontario’s “vaccine passport” system violates the Canadian Charter of Rights and Freedoms. Specifically, the Applicants allege infringements of their freedom of conscience and religion (s. 2(a)); their freedom of expression (s. 2(b)); their right to liberty and security of the person, contrary to the principles of fundamental justice (s. 7); their right to be free from unreasonable search and seizure (s. 8); and their equality rights (s. 15).

More broadly, the Notice claims that the government of Ontario is “threatening the Applicants with a loss of full participation in society in the event they refuse fully vaccinated” [sic]. May I respectfully point out that everyone suffered a “loss of full participation in society” in March 2020, and its restoration would be abruptly reversed by another wave of community spread?

The vaccine passport challenge has not yet been tested in court, but I wouldn’t put money on it. Courts in several Canadian jurisdictions have rejected constitutional challenges to various anti-pandemic measures. Most recently, Chief Justice Glenn Joyal of the Manitoba Court of Queen’s Bench dismissed a challenge to “second wave” public health orders in which the JCCF represented seven churches and some individual applicants (Gateway Bible Baptist Church et al. v. Manitoba et al., 2021 MBQB 218 and 2021, MBQB 219). With a few exceptions, mostly conceded by the respondent governments, the alleged Charter infringements have been dismissed by Canadian courts. The Ontario vaccine passport challenge will likely suffer the same fate.

Take the applicants’ claim that vaccine passports violate s. 7. The courts have already rejected several claims that public health orders to curb the transmission of COVID-19 deprived claimants of life, liberty or security of the person. In Spencer v. Canada (Minister of Health), [2021] F.C.J. No. 622, 2021 FC 621, for example, the evidence failed to establish that requiring Canadians returning from overseas to stay in quarantine hotels exposed them to physical risk or serious psychological trauma (although violations of ss. 9 and 10(b) were proven and found to be unjustified). In the Gateway case, Chief Justice Joyal found that a ban on large gatherings in private homes and houses of worship did not deprive anyone of their “liberty” within the meaning of s. 7. Nor did any of the alleged deprivations conflict with the applicable principles of fundamental justice, namely arbitrariness, overbreadth and gross disproportionality.

To be sure, forcing someone to take a vaccine that posed a genuine risk of serious harm would violate s. 7. According to the Ontario Notice of Application, some applicants have a history of blood clots and one suffered neurological symptoms after receiving a first dose of COVID vaccine. These applicants apparently fear that they will be denied medical exemptions because the criteria are “extremely narrow.” If the government were using “threats, coercion or duress” to force people to choose between physical harm and social isolation, as the Notice alleges, it would be easy to demonstrate an arbitrary, overbroad and grossly disproportionate deprivation of personal security.

Fortunately, the Ministry of Health guidance on “Medical Exemptions to COVID-19 Vaccination” (dated Sept. 14) paints a rather different picture. It explains how individuals with the conditions described in the Notice of Application can safely receive a vaccine and sets out the process to obtain an exemption in the rare cases where inoculation is too risky. The Ontario passport scheme, as a whole, seems tailored to comply with constitutional requirements.

If the vaccine passports were found to infringe rights or freedoms, the infringements would almost certainly be justified under s. 1 of the Charter. (That includes a possible violation of s. 7, even though no such violation has yet been saved under s. 1. In R. v. Michaud, [2015] O.J. No. 4540, 2015 ONCA 585, the Ontario Court of Appeal held that laws promoting public safety can be justified despite infringing individuals’ s. 7 rights.) The objectives of anti-COVID measures — saving lives, preventing serious illness and protecting the health-care system from collapse — have been universally accepted as pressing and substantial (R. v. Oakes, [1986] S.C.J. No. 7, [1986] 1 S.C.R. 103). They have also been found to be rationally connected to those objectives. They “minimally impaired” rights and freedoms, because the duration and scope of restrictive measures reflected evolving epidemiological evidence and exceptions were made for essential services. (Similarly, vaccine passports are required at bars and concerts but not grocery stores or pharmacies.) Finally, their beneficial effects outweighed any harms flowing from the measures themselves, as distinct from the damaging effects of the pandemic.

While the Charter challenges have failed to invalidate pandemic measures, they have affirmed the importance of Charter rights and freedoms in times of global crisis. (See Canadian Constitution Foundation v. Canada (Attorney General), [2021] O.J. No. 1463, 2021 ONSC 2117, per Justice Fred Myers.) The courts have deferred to the scientific and medical expertise of public health officials, but they have also scrutinized the evidence supporting (and opposing) restrictive laws and orders. COVID-19, unlike 9/11, seems unlikely to leave a judicial legacy of diminished rights and bloated executive powers.

Heather MacIvor is a content development associate at LexisNexis Canada. She is co-author, with the Honourable Stephen Goudge, of Halsbury’s Laws of Canada — Public Inquiries (2019) and Commissions of Inquiry (2019).

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