July 13, 2021 – A new study from the C.D. Howe Institute assesses the legal hurdles to implementing vaccine passports in Canada and concludes they are not insurmountable.
In “Vaccine Ins and Outs: An Exploration of the Legal Issues Raised by Vaccine Passports,” five leading experts in health law and medicine at the University of Ottawa examine vaccine passports in the context of Charter rights, privacy rights, and implementation.
A vaccine passport certifies that its bearer has received specific vaccines, for the purpose of granting certain privileges such as entry to indoor gathering places like restaurants and concerts, air travel and attendance at workplaces on preferential terms. This C.D. Howe Institute Working Paper offers a detailed look at the legal issues raised by implementation of vaccine passports, with a particular focus on issues in public law.
The paper first explores whether a vaccine passport regime would infringe 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. Broadly speaking, the authors conclude that a well-designed vaccine passport regime, backed by an equitable vaccine distribution scheme, will likely withstand a Charter challenge.
The paper then turns to an in-depth discussion of privacy issues, first exploring key aspects of privacy compliance in the design of vaccine passports before turning to an analysis of their use conditions. Again, the paper’s broad contention is that privacy issues raised by vaccine passports can be adequately addressed through careful design and regulation.
The authors then discuss potential avenues for the implementation of vaccine passports, within the framework of Canadian federalism and its fragmented jurisdiction over healthcare and public health. As part of this discussion, we suggest some broad principles for the design of a vaccine passport regime, arguing that passport gating should be limited to non-essential services, and that wherever feasible, the unvaccinated should be accommodated with rapid testing.
The authors:
BRYAN THOMAS IS SENIOR RESEARCH ASSOCIATE & ADJUNCT PROFESSOR, CENTRE FOR HEALTH LAW, POLICY & ETHICS, UNIVERSITY OF OTTAWA.
COLLEEN M. FLOOD (FRSC, FCAHS FRSC, FCAHS) IS UNIVERSITY OF OTTAWA RESEARCH CHAIR IN HEALTH LAW AND POLICY. INAUGURAL DIRECTOR OF THE CENTRE FOR HEALTH LAW & POLICY, UNIVERSITY OF OTTAWA.
VIVEK KRISHNAMURTHY IS SAMUELSON-GLUSHKO PROFESSOR OF LAW AT THE UNIVERSITY OF OTTAWA AND DIRECTOR OF THE SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC (CIPPIC).
RYAN TANNER PHD, JD, FACULTY OF LAW, COMMON LAW SECTION, UNIVERSITY OF OTTAWA.
KUMANAN WILSON IS SENIOR SCIENTIST, CLINICAL EPIDEMIOLOGY PROGRAM, OTTAWA HOSPITAL RESEARCH INSTITUTE; PROFESSOR, FACULTY OF MEDICINE UNIVERSITY OF OTTAWA.
For more information contact: Rosalie Wyonch, Senior Policy Analyst, or David Blackwood, Communications Officer, C.D. Howe Institute, 416-873 6168, dblackwood@cdhowe.org.
The C.D. Howe Institute is an independent not-for-profit research institute whose mission is to raise living standards by fostering economically sound public policies. Widely considered to be Canada's most influential think tank, the Institute is a trusted source of essential policy intelligence, distinguished by research that is nonpartisan, evidence-based and subject to definitive expert review.