CCLA Debates Vaccine Passports on TVO.org: Our Letter that Sparked the Debate

December 14, 2020

Rt. Hon. Justin Trudeau
The Honourable Patty Hajdu
The Honourable David Lametti
Government of Canada
Ottawa, ON

By Email:  justin.trudeau@parl.gc.ca

Dear Ministers,

We are writing you about the bad idea floated from an Ontario executive podium respecting immunity passports, so called. On this matter, Canadians deserve a national approach, for countless reasons. We would boil down our civil liberties concerns to five. These concerns are unrelated to the individual choice to get vaccinated. We are anti-oppression, anti-discrimination, not anti-vaxers.

But first it must be said, that the overall human rights challenge with Immunity Passports arises from the disconnect between means and ends. As you know well, the point of the vaccine is to achieve the herd immunity threshold, upon which the proportion of the population immune to the disease is greater than the percentage of the population capable of getting the disease for it to spread. That threshold crossed, the whole community becomes protected – not just the immunized. Herd immunity makes it possible to protect the population from a disease, including those who cannot be vaccinated, such as newborns or those who have compromised immune systems.

If the point of an Immunity Passport is to coerce inoculation, then this raises the issue of individual liberty and government mandated medical treatment, discussed below. But Canadian governments say that they are not mandating inoculation. Accordingly, the purpose of the Immunity Passport, or Immunization Passport, is unrelated to crossing the herd immunity threshold. If it is not about herd immunity, we would argue, then its purpose is wrongheaded and misleading.

It is wrongheaded because of its negative human rights consequences, discussed below. It is misleading, because possession of an inoculation record does not, in fact, equal immunity or proof of not being infected. Nor does the absence of a passport mean that the person is a carrier of COVID, or otherwise susceptible. The inoculated could be infected – they could be one of the few for whom the vaccine fails – just as the uninoculated could be immune. The herd immunity threshold can be achieved notwithstanding these exceptions, however, which is why immunity passports put the cart before the horse.

“Immunity Passport”: Top 5 Human Rights Wrongs

Privacy: to allow private entities to collect or use personal health information has ominous privacy implications. Requiring individuals to show proof of vaccination—that is, evidence of a personal medical decision—in order to participate in public life is inherently intrusive. The constitutional question is whether such a privacy intrusion is proportionate to public health benefits, particularly considering the current absence of empirical evidence regarding the protections conferred by any of the vaccines. Such tools would also require the capacity to identify those for whom vaccination is medically precluded due to pre-existing conditions, and sharing that information is even more privacy invasive. Even an ostensibly privacy protective choice, such as limiting the information on a proof document (eg., to ‘vaccinated,’ ‘not vaccinated,’ or ‘medically exempt’) would still reveal personal health information. This is particularly true since for such proof to be widely accepted and accountable, a list of conditions that would render one exempt would have to be publicly available. If the proof is rolled into a digital application rather than a physical token, be it CANImmunise or another tool, additional privacy concerns arise.

Mobility: the pandemic has raised unprecedented erosions of mobility rights for people across Canada, and a provincial/territorial patchwork of vaccination proof tokens or apps would exacerbate the problem. Federal leadership is imperative to ensure that vaccination status and the tools used to demonstrate it are not allowed to become yet another divisive element of already problematic border control measures instituted in some Canadian jurisdictions. Canadians have constitutional rights to mobility: a province or territory cannot deny entry or services to residents of another Canadian jurisdiction. If a jurisdiction seeks to legislate or regulate contrary to this right, there is an obvious role for the national government to restore mobility for all Canadians.

Equality (disability/health): the choice to be vaccinated is not open to some Canadians. There will be some with pre-existing medical conditions or disabilities where vaccination would be counter-indicated, the scope of which remains unknown. The recent UK experience with the Pfizer vaccine and the highly allergic vividly demonstrates this uncertainty, which will be amplified as each new vaccine arrives on Canadian soil. We noted above, under the discussion of privacy, that an immunity certificate regime that predicates access to public or private spaces, businesses, and services based on vaccination status would require all such individuals to disclose, on a potentially regular basis, the existence of their medical conditions, if not the details, to a potentially expansive range of organisations. But forcing those individuals who have health conditions or disabilities to engage in this disclosure is not just a privacy invasion, it is also fundamentally discriminatory against these groups who most need human rights protections to ensure equal treatment in workplaces and public life.

Equality (discrimination on other equality grounds): not all members of our society are at equal risk or have equal means to navigate a pandemic while maintaining their health, safety, and income. Front-line workers in service and retail are often women, often newcomers, often racialized, and often financially insecure. An immunity certificate regime that predicates presence in the workplace or participation in a range of social activities on proof of vaccination will disproportionately impact those individuals who have little social or political power to resist. As Hon. Rosalie Abella puts it, “we must never forget how the world looks to those who are vulnerable.”1 The vulnerable, after all, tend to be relegated to the back of the bus, the end of the line, and will probably be the last to get inoculated, and least likely to produce an Immunity Passport, because of their socioeconomic status, their social, economic and psychological incapacity, and pre-existing obstacles to both. This double-barreled disadvantage is reason enough for your Government to prevent this from happening in Canada.

Liberty (coercive): Intimately linked to the discriminatory impacts of immunity certificates are the potential coercive effects. Policies that facilitate (or the absence of policies/laws that prohibit) vaccination status from becoming a key to full participation in public life run the risk of rendering a voluntary vaccination regime de facto mandatory, via diffuse coercive impacts. If proof of vaccination is required to enter businesses, ride public transit, go to the theatre or a sporting event (all options that have been floated by different elected officials), this will inevitably have a coercive effect on the decision-making process individuals must engage in when considering whether to be vaccinated. Meaningful consent is required for voluntariness to be genuine, and state-sanctioned, coerced consent does not meet that threshold. Policies that incentivize choosing to be vaccinated, such as the recent vaccine injury support program announced December 10th by the Prime Minister, do a far better job of protecting rights by supporting individuals decisions to choose vaccination rather than penalizing their legally valid decision to forgo vaccination.

To conclude, there is a need for strong federal leadership to ensure that residents across Canada can meaningfully exercise their right to make informed decisions about their health and make a voluntary decision to participate in the vaccination roll-out to protect themselves and their loved ones against COVID-19.

Your government has set the precedent with the development and support of the COVID Alert app, which emerged under federal leadership with active engagement from provinces and territories. That same leadership is required to ensure a necessary proof of vaccination, for valid health purposes such as appropriate tracking of vaccine uptake, does not become an immunity passport, used either as a matter of policy or in the absence of constraints to create coercive decision spaces or violate rights of any person in Canada, including our most vulnerable who are most at risk of discrimination. CCLA calls on the government of Canada to ensure that any tools crated or used as part of a mass vaccination program are privacy protective and created and used in a manner that supports the letter and spirit of the laws that protect our liberty, equality, privacy, and mobility rights across Canada.

Yours truly,
Michael Bryant, CCLA Executive Director
Per Canadian Civil Liberties Association

mbryant@ccla.org
czwibel@ccla.org
bmcphail@ccla.org