Can vaccine passports be justified in a free society? We asked constitutional lawyer Wayne MacKay to weigh in

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A few days ago, Liberal leader Iain Rankin announced that if re-elected his government would bring in a COVID-19 vaccine passport system — what he called a “Scotia Pass” — which would provide proof of vaccination for individuals, and it would also be used by businesses and organizations as a way to limit access to their services.

Referring to whether the vaccine pass system would be voluntary or mandatory, Rankin was quoted as saying, “If we see a surge in cases, we’ll do whatever we have to do to keep Nova Scotians safe,” meaning it could be forced on people. But let’s face it, even if not mandated, a policy that makes vaccination status a precondition for participation in daily life makes it de facto mandatory. 

The Halifax Examiner recently reported that of those eligible to be vaccinated (12 years and older), 87% have received at least one dose, and 76.4% have received two doses. Thirteen percent are currently unvaccinated. For the province to enter into Phase 5, 75% of the entire population has to be “double dosed,” which translates into roughly 85% of the eligible population, and at the current rates of vaccination, this should happen by early September. 

But despite the province being very close to its minimum vaccination goal, combined with the very low number of cases in the province, Rankin is proposing a new COVID measure — the vaccine passport — which he says will provide a “proactive step to prevent a fourth wave.”

But will it?

And what will the fallout be of an exclusionary measure from an ethical, constitutional, and human rights perspective?

According to a joint statement by the federal, provincial, and territorial privacy commissioners published in May 2021, any vaccine passport initiative must be “necessary to achieve each intended public health purpose,” be evidence-based, likely to be effective at achieving the “defined purpose,” and with risks that are proportional to the benefits.

To find out more about the implications of a vaccine passport system in Nova Scotia, I contacted Wayne MacKay, Professor Emeritus of Law at the Schulich School of Law at Dalhousie University in Halifax.

MacKay is recognized for his work in the area of Constitutional Law, the Charter of Rights and Freedoms, Human Rights, Privacy Law and Education. In 2005 he received the Order of Canada, Chaired the Nova Scotia Task Force on Bullying and Cyberbullying, has been on the board of Canadian Civil Liberties Association, and was a former director of the Nova Scotia Human Rights Commission.

[My interview with Wayne MacKay was conducted over the phone. It has been edited for length and clarity]

Linda Pannozzo (LP): Do you think the implementation of a domestic vaccine passport infringes in any way on the Charter of Rights and Freedoms? 

Wayne MacKay (WM): So at the end of the day, my bottom line answer is no, I don’t think it does. Now, no court has decided that yet. Of course, even where it exists, as far as I know, there haven’t yet been challenges and no doubt they will be challenged in the courts. But I think the challenge will not succeed.

At the first level it does clearly infringe certain individual rights. I mean, it is an invasion of privacy to some extent to have to reveal personal health information about whether or not you’ve had a COVID shot, as an example. And it also in some ways will be a restriction on people’s freedom. If you have events that only people with a passport — a Scotia Pass — can get in, that’s a restriction on their mobility and freedom. And in some cases, it will certainly be argued as a violation of freedom of conscience for those that are anti-vaxxers or people who are opposed for reasons of conscience to being vaccinated. They’ll all argue, rightly perhaps, that at least at the first level, it violates and limits individual rights. And in even in some cases, I don’t think there’s very many, but I believe there are some fairly small religious groups that might also have a freedom of religion argument that they could argue is violated by requiring — it’s not that it’s requiring vaccinations — it’s giving privileges that require vaccination, having choices because you’re vaccinated that you wouldn’t have otherwise. So anyway, at the first level, there almost certainly are infringements on individual rights. 

The reason at the end of the day, I think it’s still a legitimate policy and legitimate law is because of Section 1 [of the Charter] that all rights in the Charter are subject to reasonable limits in a free and democratic society. I think most courts, as well as the court of public opinion — although that’s not legally enforceable one — I think most of them have concluded that this is a reasonable thing to do and that it can be done in a way that limits rights as little as possible. And that’s the key point. It seems to me that the idea of a passport is reasonable in some sense as almost necessary to get through the final stages of the pandemic, in the post-COVID world or the with-COVID world, whatever we’re entering.

But I think it has to obviously be designed, which is no small task, in a way that limits rights as little as possible. And perhaps the best example of that would be disabilities or health conditions that don’t allow you to be vaccinated. So if for medical and legitimate issues of disability, you cannot be vaccinated, then as part of human rights law, you need to do everything you can to accommodate those kind of people. They’re not making a choice to not be vaccinated. They are not able to be vaccinated. And again, it will require some creativity, but I think we have to be careful to not discriminate against those kind of people. But that all has to do with how you do it, not whether you do it.

LP: My understanding is that the rights and freedoms that are laid out in the Charter are not absolute, as you’ve just pointed out, but I’m wondering how a limitation on the Charter would be justified in this case, given the evidence that has been emerging over the last few weeks: namely that vaccinated people can get and transmit the SARS-CoV-2 virus. The incidence of breakthrough cases seems to increase as the effect of the vaccines wane — Israel seems to be providing a case study for this, and has already begun giving a third shot to citizens over 60 years of age. As well, the CDC recently changed its guidance on mask wearing and now recommends everyone, including vaccinated, wear them, to prevent spreading the virus. Also, the World Health Organization recommends against vaccine passports because there “are still critical unknowns regarding the efficacy of vaccination in reducing transmission,” and whether the vaccines provide any protection against asymptomatic infection. 

So, while being vaccinated does appear to provide good protection for a period of time in terms of preventing serious outcomes for the vaccinated individual — it doesn’t prevent transmission, including among vaccinated people, particularly with the Delta variant. 

If the vaccines can’t guarantee against either spreading or getting the infection, then how is a vaccine passport a good public health intervention at all? And, given these gaps, could this measure actually be justified under the Charter? 

WM: Well, that’s a really, really important point. And I’m glad you made that. Now allow me to walk back — not completely change it — I still think at the end of the day, it would pass the test of the Charter, but not necessarily in every case.

And it’s very, very important on the point you’re just making that the burden is on the state, who is imposing this passport or any of these kind of rules, to demonstrably justify that it’s reasonable in a free and democratic society. The person alleging the rights violation, they have to prove the violation, but that’s not that hard. Then it shifts over to the government to have a very high burden of proof and a burden of proof that goes directly to the kinds of things you’re talking about — scientific and medical evidence justifying that the COVID passport is a reasonable document that does promote the safety and health of others, because that’s the key objective. The key objective isn’t so much what you do in relation to yourself, by and large it’s still a reasonably free choice in a democratic society. What you do that may affect the health and welfare of others is legitimately regulated by the state. But as you state, that goes directly to the question of transmission, and that is the area where we’re still not completely clear what is involved. 

So at a minimum, if they do this, they will have to have a basis for the passport that gets constantly updated with changing and emerging scientific evidence, which, as we all know with COVID happens with great rapidity, right? 

LP: Yes

WM: And I think that goes back to the importance of how you design this thing. So, for example, it might well be that the passport is — this might be a poor example, but maybe not — maybe the passport would only be effective if the person using it for whatever purpose also wears a mask. You know, just as an example. That might not be realistic, might not be what people want. But it would be misleading — and I think that’s what the Department of Health and people like Dr. Strang are probably looking at — the danger of a passport is as though it’s saying, “I’m not a risk to anybody. I’m immune. I can go out and do the kinds of things I did before COVID ever hit. And those who don’t have passports are risky.” Neither of those is completely true on the evidence base that we have at the moment. 

So I guess my statement is, if the evidence supports that you’re better off — obviously you are — with double vaccination, then that’s what you should be holding out: that the passport says these people are more safe than those who aren’t vaccinated. I think we can say that. And I think the evidence does support that. So having a more official government document that says that would be more efficient and effective than what we currently have, which is you produce your own proof, which we have to either print off or find digitally or whatever, of having two shots of COVID vaccine. 

So we’re already kind of proceeding in that direction. What the COVID passport does is involve the government, and I think I heard just recently, in the last day or two, that the feds are now going to do it for travel. Dominic LeBlanc just announced that they’re going to put together some kind of a federal passport for travel purposes only. And I think that’s another really important point. For what purposes does the passport or whatever they produce get to be used? And it isn’t necessarily for all purposes. 

I think, first of all, the burden is clearly and heavily on the government to justify it [a vaccine passport] based on the scientific evidence, and so that’s one of the reasons I give my best guess, but until a court really looks at all the evidence and has a fully argued and full scale exploration of this with scientific evidence and witnesses and cross-examination, you really have to justify the validity of the passport.

LP: The Canadian Civil Liberties Association (CCLA) has also raised a number of concerns about vaccine passports, stating that they “risk giving rise to discrimination and serious privacy breaches, and may also be a way of coercing individuals into being vaccinated when this should be a personal choice” based on informed consent. You did allude to this earlier in terms of people who have medical reasons for not getting vaccination. Given that a percentage of the unvaccinated include the already marginalized, those who are not trusting of governments or institutions as a result of past harms they’ve experienced, does it worry you that a passport system could risk creating a two-tier society that exacerbates already existing racial and economic disparities — particularly when the scientific basis for it, as we’ve discussed, hasn’t been established? 

WM: I guess the short answer is yes, it does concern me and what they [CCLA] say is correct. I think statistically, a disproportionate number of those not vaccinated would most likely, I can’t say this for sure, but I think it’s true, be in more disadvantaged or disenfranchised communities for many reasons. Lack of access, in some cases, maybe not as much health education, there are a host of reasons. So there is some danger of that. 

I guess my answer to that is that that would be a part of how do you structure it and building into the passport structure some awareness and hopefully safeguards against that kind of discrimination, as best you can. But does it add an additional risk? I think it does.

The problem, I guess, that I keep running up against in taking a full kind of civil liberties position on this is, practically speaking, it’s going to be so difficult without some kind of an official passport. So let’s say we don’t have the official passport. You’re still going to have both government and private individuals allowing people to do things only if they can demonstrate that they have had two COVID shots. And isn’t that equally problematic that people who have been disenfranchised are less likely to have that kind of credential with them or may not have the cell phone to demonstrate that digitally, that they’ve got it, whatever? So some of that is going to be there with or without a passport. 

If, as is almost certainly the case, we are going to limit some events to people who have had two COVID shots, that decision, which I think is going to happen and is happening already, is mainly what is going to produce some discrimination. And then we have to be alert to try to ensure that it’s not inappropriate discrimination.

For example, to make an extreme case, if you were more likely to be assumed to be not vaccinated because you were Aboriginal or Black or a woman or whatever, then obviously that’s a discrimination problem. If you are going to scientifically assess and look at documentation to determine who does or does not have two COVID shots, then the race or gender or sexual orientation of that shouldn’t matter. It’s the evidence and the proof of the actual vaccination, right? So I think some of these problems — not that they’re easy — can be dealt with by some careful structuring of the system.

I guess one of the problems that really strikes me because my sort of instinct by training and background, both as a lawyer and former director of the Human Rights Commission and a civil liberties person myself, is to be very sympathetic to this CCLA position and those kind of things, and I am, but I think the reality is I don’t see how we can very effectively function as a practical society without something like this.

And I guess when I say that, it’s functioning in a way where people are not exposing others to a significant and undue health risk. Some could say, well, we could say the same about the flu and all these things. Well you can up to a point. But they don’t have the potential — and here the scientific jury is out on this too — what are the long term effects? What are the real effects of having COVID and we don’t know all that, but we know it’s pretty serious. 

So what we have here, I think, is a very compelling state objective that can legitimately limit rights. The only question is, can the means of achieving that objective be designed sufficiently to minimally limit rights so that we can achieve both goals: not unduly infringe people’s rights, but on the other hand, pursue a way of allowing people to be less threatening or less likely to infect others? That’s the balance we have to strike, I think. 

LP: And as you said, it needs to be justified scientifically. 

WM: Exactly. Yes. It’s not just we think it looks this, or people feel this. You hear people say, “Well, people will be more comfortable.” Well, that doesn’t do it. The comfort level is not part of the test. Does the scientific evidence justify the value of a passport as a way to keep your fellow citizens safe from contamination? That’s the question, I think.

There are also legitimate privacy concerns about COVID passports because you are effectively revealing personal health information, which is on its face a violation and being required to get into a certain event, a violation of the Personal Health Information Act in Nova Scotia and maybe the Freedom of Information and Protection of Privacy Act. But both of those statutes do also have in it an exception, if it’s necessary to do so to protect public health. So that the balance that we talked about in the Charter also plays out in relation to the two privacy statutes and how that gets played out there as well, just to be clear on that.

LP: I also wanted to ask you about the State of Emergency. In Nova Scotia it was declared, as I’m sure you know, on March 22 of last year “to help contain the spread of COVID-19.” It’s now 17 months later and the state of emergency is still in place, with no stated metric in place for ending it. Are you at all concerned about that? 

WM: The state of emergency is something that really does deserve a fair bit of attention because declaring a state of emergency is a very big thing and it greatly increases the power and the centralization of power in government, as we saw with all the things that happened under COVID and also the fact that our closest neighbor, New Brunswick has now ended their state of emergency. And I think that we should now be turning our attention to that question.

Have we reached a point where, in fact, the situation with COVID no longer justifies a declared state of emergency? And can we achieve the same public health benefits under the Public Health Protection Act, which is there in non-emergency times as well? Or do we need the added kind of emergency powers, which at the height of COVID, I think most everyone felt, yes, we did need that and every province concluded that. But we should not get overly comfortable as a free and democratic society living under a state of emergency. And there again, the burden is clearly on the government to justify the continued state of emergency. 

Now in Nova Scotia, we may be at a bit of a disadvantage on that because of the current election, because everything is kind of focused on the election. And so that may, in fact, explain why it isn’t being debated in the House like what should happen. And every time the renewal of the state of emergency comes up, then the opposition party should be challenging that or at least dealing with that as a matter of whether or not the evidence still supports a state of emergency.

And we shouldn’t get too comfortable with just saying, “Oh, well, we trust the government to do good things.” Even if it may be true, it’s not a good thing to assume or take for granted in a democratic society. So I think the government, whichever government we have after August 17th comes in, one of the early things that hopefully will be addressed and debated is a real discussion and debate about whether or not the state of emergency needs to be continued at this point. 

LP: Do you think there could be a permanent erosion of our rights and freedoms as a result of this pandemic or do you see these restrictions of the last 17 months as just temporary?

WM: Well, again, I’ll wear my civil liberties and Human Rights hat. I think there are dangers with people getting too used to their rights being limited and too comfortable with saying, “Governments are benign and they’re doing good things. So don’t worry about it.” I think we should not take these kind of important liberties for granted.

And so I think there is a concern and I do have a concern about some erosion of our sensibilities about civil liberties, and that we need to constantly keep in mind that this is an abnormal state of emergency and that the burden is constantly on the government to justify these extraordinary powers.

If right now Dr. Strang said we should all wear our pants upside down, we probably would, right? If he said it’ll help for COVID if you wear your shirt inside out, a huge number of people would actually do that, because Dr. Strang is very impressive. If he ran for Pope he would be elected. If he ran for the government, none of the others would have a chance! Anyway, you get my point.

And notwithstanding what an impressive individual and how good a job he’s done, we should always be cautious about that because it’s subject to individual people and their merits. The system should protect you from an evil Dr. Strang. What if there was his evil brother or evil sister who took over these powers and wasn’t doing such good things. I partly joke, but I partly don’t. I think regardless of whether it’s Tim Houston or Iain Rankin or Gary Burrill, I don’t think anybody would have the level of trust that Dr. Strang does. 

LP: You mentioned just now that there’s been an erosion of our sensibilities about civil liberties. Can you give me an example? 

WM: Well, I think the extent to which we accepted just about any limits at the height of COVID, and you can understand that, people are scared. But I remember doing radio interviews at the time where, for example, they were not letting people go on public trails and park trails, even though they weren’t clear on what was to be defined as a municipal trail and therefore subject to the Act and some of the rule of law kinds of things that we have to be very careful about is we should not allow the government to penalize us unless we know clearly what the offence is, number one, and number two, we should always be very cautious that they’re enforced equally so that it shouldn’t come down disproportionately negatively on the homeless or it shouldn’t come down disproportionately negatively on the young or whatever, unless you can justify that. 

So basic democratic principles such as equal and fair treatment and clearly knowing what the rules are, are important things, which I think did get kind of less attention during the height of COVID; that we accepted things that were not always clearly articulated and we did have some enforcement that wasn’t as evenhanded as it should be. And I think that’s a kind of an erosion of the basic rule of law principle. Even in a time of pandemic and crisis, the rule of law does not go out the window, and in fact, if anything, it’s kind of more important in those times because people are otherwise distracted by the crisis and governments can easily abuse their power. 

LP: And whose responsibility is it to raise those issues in society, since most people are distracted by fear and maybe not able to recognize the erosion. Whose shoulders would it fall on to sort of raise these rule of law issues as they’re happening?

WM: Well, here’s a good illustration. One of the things that should happen is that in the legislature itself, the opposition would raise it. But here’s a vivid illustration in Nova Scotia under our former Premier Stephen McNeil, the sitting of the legislature and even most of the committees were all suspended. So one of the critical mechanisms for raising these kinds of concerns in a time of an emergency was put on hold, and we were all very accepting of that. And I think that’s another illustration, maybe even a better one, of where our basic rights were allowed to be eroded somewhat. I think that they did not have a very good justification for why the legislature could not sit. I mean, all kinds of other far more risky workplaces continued to operate. Why not the legislature?

So that would be one. And then my second answer, failing that, would be the courts. That is one of the obligations in a democratic society, that the courts are your final protector of your constitutional and basic rights. But that requires someone going to lawyers and going to someone who’s going to raise it in court. Now, organizations like the Civil Liberties Association, organizations like the Human Rights Commission, in terms of discrimination, those kind of agencies can and do raise it to some extent, but I do think it’s really significant that one of the main representatives of the sort of minority view was suspended for virtually all of the COVID period. 

I’m glad you’re raising it — the whole issue of the ongoing state of emergency and the extent to which we’ve all been very comfortable with being told what to do is something that should not be a permanent state. It’s not a good thing for democracy if that’s a permanent state.

LP: And I’m also noticing and I don’t know if this is just the sign of the times or what, but I’ve noticed that people that are raising some of these points, about the erosion of civil liberties for instance, are being dismissed and treated like they’re making people unsafe. They’re not being viewed as trying to protect democracy, but they’re being viewed as a danger. Have you noticed that? 

WM: I have noticed that and I think that is another concern. I think one of the reasons, and it doesn’t justify it, and maybe I’m being unfair here, but I think some within the so-called anti- vaxxer movement, which seem to be making statements and declarations with no scientific basis, are hard to take very seriously.

But whether or not you react to them, people like the Canadian Civil Liberties Association or human rights activists or the lawyers or others raising these, it’s a legitimate thing to raise. And even if at the end of the day, as I do for example with the passport question, come down on the side of group rights to be safe, there’s nothing wrong with, and in fact, there’s everything right with people standing up for individual rights and saying, “Show me why you have to do this, justify why you can limit my rights in this way.” That is not being contrarian and that’s not being evil. That is standing up for people’s rights. If you’re proven wrong in court, then so be it. 

But I think you’re right, there is a kind of view — to be more blunt — it’s almost like the crazies are the only people that are really objecting to any of this, right? And you know that that’s not the case. There’s lots of people raising legitimate concerns. And just going back full circle, the passport may be a perfectly clear example of that. If they [the government] cannot demonstrate that the passport is effective as a way of protecting public health and there are better ways to do it, then those objecting to that are doing us a favour. 

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