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Vaccine passports: are they legal? Are they related to Ontario’s new digital ID for smartphones?

Photo: British Columbia government

On September 1st, Premier Doug Ford announced that Ontario will soon require people to be fully vaccinated and provide “proof of their vaccination status,” otherwise known as a “Vaccine Passport” to access certain businesses and settings.

As of September 22, 2021, Ontarians will need to be fully vaccinated (two doses plus 14 days) and provide their proof of vaccination along with photo ID to access certain public settings and facilities, including indoor restaurants, gyms, sporting events, casinos and strip clubs. A similar program became effective in British Columbia on September 13th.

Businesses which will be significantly affected by the impositions of Vaccine Passports, as well as individuals who may or may not be vaccinated but still oppose the idea of carrying government issued papers to announce their status, are now wondering whether provincial governments have the right to demand such a documentation.

On its website, the Canadian Federation of Independent Business writes:

“While some business owners may welcome the use of a vaccine credential with employees and/or customers as an alternative to lockdowns, CFIB has several significant concerns and wants you to understand the risks. There are serious privacy and human rights considerations involved, and a business could face an expensive legal process just as they are getting on their on their feet. We are also concerned about the ability of small businesses to effectively implement a process to check credentials. For example, asking a young retail clerk or restaurant host to ask about someone’s health records would put them in an incredibly delicate position.”

Sept. 15 update: CFIB questions about the Vaccine Passport

Dan Kelly, President of the Canadian Federation of Independent Business asks these questions of the Ontario government of the new Vaccine Passport system:

1. Who is going to pay for the staff person required to screen customers?

2. What does the 18 year old restaurant hostess do if the unvaccinated customer refuses to leave or insists on being served?

3. What happens to a business that admits someone without proper documents or one that was doctored?

4. Is a business or its staff expected to recognized the credentials issued in other provinces/countries?

5. Who pays for the devices to read QR codes, what if they don’t work or there is no internet connection?

6. Does the wedding/events venue have to refund the deposits of bookings that are now cancelled due to the passport requirement (CFIB is getting examples of this already)?

7. As the vaccine passport is expected to customers only, can the unvaccinated waiter eat in the restaurant on their lunch break?

8. For businesses with many regulars (e.g. gyms), do you have to check the credentials each time someone enters?

These are just some of the questions Ontario business owners are asking. Based on past experience, I’m not optimistic the province will give us all the answers we need despite the new system launching in 10 days. Hope I’m wrong.

Canadian constitutional lawyer Rocco Galati does not mince words about his opinion: Galati says that such Vaccine Passports are illegal, criminal, and unconstitutional.”

He goes on to add, “Testing for DNA or RNA to determine whether someone is susceptible to transmit a transmittable disease is a violation of Section 3 the Genetic Non-Discrimination Act, punishable by a fine, and 5 years in prison. All these PCR tests are criminal offenses where there is no consent.”

In its media release, Ontario states that businesses will verify digital vaccination certificates when Ontario develops and implements “an enhanced vaccine certificate with unique QR code and accompanying verification app that will allow users to verify their vaccination status when scanned.” Businesses contacted by RWN were not certain how or if this will work.

The province says that the enhanced vaccine certificate and the verification app to allow businesses to read the QR code, will be available beginning October 22. Proof of Vaccination will be enforced by by-law officers.

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When it comes to COVID-19 testing, vaccination or passport proof, how is a working Canadian to know what is fact, and what is not? If you lose everything because you are fired or charged now under a regulation that turns out to be illegal in the months ahead, finding out you were right all along may not help you much.

On the other hand, if you comply with government or employer directions, get the vaccine and then suffer an adverse medical event, your situation could be as bad or worse.

Do you need to be a specialist in Constitutional or Employment law to figure it out?

Despite several days of research, Road Warrior News has not found a definitive answer to these questions. However, here are two sources of information which may help you make these decisions for yourself:

The province of Ontario’s “Frequently Asked Questions” can be found here.

“Stand Up Canada,” the non-profit group represented by Galati and which disagrees with the Province of Ontario can be found here.

September 15 update: MPP Roman Baber launches petition against Vaccine Passport

https://docs.google.com/forms/d/e/1FAIpQLSfAlsxQo2MJRBePGyr9KNEk5i4EIUIS7RJ5LoSniiywE6fRQw/viewform

Choice shouldn’t lead to unemployment: Pass the Jobs & Jabs Act, 2021, now!TO THE LEGISLATIVE ASSEMBLY OF ONTARIO

WHEREAS the Covid-19 Pandemic and the Doug Ford Lockdowns caused an unprecedented hardship to millions of working Ontarians;

WHEREAS over the next few weeks and months, countless Ontarians will lose their jobs because of a personal choice;

WHEREAS most Ontarians and all Recognized Parties agree that vaccination is a choice;

WHEREAS employers should be encouraged to accommodate employees;

WHEREAS no Ontarian should lose his or her job because of a personal health choice;

WE the undersigned, petition the Legislative Assembly of Ontario as follows:

To immediately reconvene the Legislature and pass the Jobs and Jabs Act, 2021.

Is Ontario’s new “digital ID” related to the Vaccine Passport?

In what some see as a related development, Ontario also announced a new digital identification product which can replace drivers’ licenses and health cards.

“Ontario will launch a Digital ID for Ontarians later this fall, the first step towards safer, more secure ways to prove who you are online,” the September 8th media release reads.

“When fully mature, the digital ID ecosystem of Ontario is estimated to be worth $20 billion. This estimate is calculated from about 35 value drivers and hundreds of data points from various sources such as DIACC, McKinsey Global Institute and World Economic Forum,” the release notes.

On its website, Ontario lists what the new digital ID “is, and is not.”

What it is:

Digital ID (identification) is an electronic version of  government ID.

It can be securely stored in a digital wallet app for smartphones and other digital devices.

Digital ID is the foundation that will enable easier access to online services.

What it is not:

Not stored in a central database.

Not a tracking device.

Not usable without your permission.

No mention is made on either list of whether the new digital ID will also serve as a Vaccine Passport.

 
Supreme Court of Canada Case in Brief

On July 10th, 2020, the Supreme Court of Canada issued its Decision confirming that Parliament had the power to make it a crime to force someone to get genetic testing or reveal their test results. The Genetic Non-Discrimination Act received Royal Assent (completed the Parliamentary process and became law) on May 4th,  2017.

Below is posted the Case in Brief” prepared by communications staff of the Supreme Court of Canada to help the public better understand Court decisions:

“Genetic testing looks at genetic material (like DNA) from a person’s body. It can find out personal information, like what diseases a person might have, develop, or pass on to their children.

Parliament passed the Genetic Non-Discrimination Act to make rules on genetic testing related to diseases. It made it a crime to force someone to get that testing, or share their results, to sign a contract or buy something. For example, insurance companies couldn’t make people get tested to get life insurance coverage. Parliament also made it a crime to collect, use, or share the results of someone’s genetic tests without their permission. Anyone breaking the rules could be fined up to $1 million or put in jail for up to five years, or both.

The Government of Quebec didn’t think Parliament had the power to make these rules. That’s because Canada’s Constitution gives different powers to the provinces and the federal government. For example, Parliament (the branch of the federal government responsible for making laws) has the power to make criminal laws. Provincial legislatures (which make laws for each province) can make laws about property and civil rights. This includes laws about buying and selling goods and services. If a provincial legislature or Parliament passes a law that only the other has the power to make, the law will be unconstitutional.

The Government of Quebec asked the Quebec Court of Appeal to decide if the rules were unconstitutional. The Attorney General of Quebec said the rules were unconstitutional because they were really about making rules for insurance and employment contracts and promoting health, not about making criminal law. The Attorney General of Canada agreed.

The Attorneys General of Quebec and Canada both argued that the rules were unconstitutional. To make sure it heard the other side of the argument, the Court of Appeal appointed an “amicus curiae” to argue that they were constitutional. “Amicus curiae” is a Latin term meaning “friend of the court.” It is an independent lawyer a court asks to take part in a case. The amicus curiae said the rules were meant to protect the security and dignity of vulnerable people, and to prevent outcomes that would be morally wrong. He said this fell under Parliament’s power to make criminal law.

The Court of Appeal agreed with the Attorneys General and said the rules were unconstitutional. It said Parliament didn’t have the power to make the rules because they were really about things under provincial power. The Court of Appeal said the rules didn’t have anything to do with criminal law.

The Canadian Coalition for Genetic Fairness was an “intervener” when the Court of Appeal heard the case. Interveners are people or groups who get the court’s permission to give their point of view. They make arguments in writing. Some are also allowed to make short arguments in person at the hearing. They help judges see different angles and make better decisions. The Coalition said the rules fell under Parliament’s power to make criminal law because they protected people’s health, privacy, and equality. The Coalition appealed the Court of Appeal’s decision to the Supreme Court.

Most of the judges at the Supreme Court said the rules were constitutional. Five judges agreed that Parliament had the power to create the rules. They said the rules were criminal law because they prohibited something and created punishments for breaking the rules, and because the rules were trying to prevent certain kinds of harm. They said this is what criminal law is meant to do. These judges disagreed over what the rules were really about and the kinds of harm they were meant to prevent.

This case came to the Supreme Court as an appeal from a provincial “reference.” References are questions that governments ask courts for their opinion on. (In law, an “opinion” isn’t just a belief or point of view. It is a formal explanation of the law.) The federal government can ask the Supreme Court for a legal opinion on an issue. Provincial and territorial governments can ask their Courts of Appeal for opinions, and these opinions can be appealed to the Supreme Court. Appeals in references from Courts of Appeal don’t need leave (permission) to be heard by the Supreme Court. This case began as a reference to the Quebec Court of Appeal by the Quebec government.”

What the Privacy Commissioners say about Vaccine Passports

Privacy and COVID-19 Vaccine Passports

Joint Statement by Federal, Provincial and Territorial Privacy Commissioners

May 19, 2021

Background

Vaccine passportsFootnote1 are being considered by some governments and businesses as a means of allowing a return to something more closely resembling normal life. Canada’s Privacy Commissioners have decided to make a statement at this time in an effort to ensure that privacy is considered at the earliest opportunity as part of any discussions about vaccine passport development.

A vaccine passport can take a number of different forms, such as a digital certificate presented on a smart phone app or a paper certificate, but it essentially functions to provide an individual with a verified means of proving they are vaccinated in order to travel or to gain access to services or locations. Proponents justify this measure based on the idea that vaccinated individuals have a significantly decreased risk of becoming infected and a decreased risk of infecting othersFootnote2. If supported by evidence of their effectiveness, vaccine passports could bring about broad and impactful benefits, including allowing increased personal liberties, fewer restrictions on social gatherings, and accelerated economic recovery resulting from greater participation in society.

At its essence, a vaccine passport presumes that individuals will be required or requested to disclose personal health information – their vaccine/immunity status – in exchange for goods, services and/or access to certain premises or locations. While this may offer substantial public benefit, it is an encroachment on civil liberties that should be taken only after careful consideration. This statement focuses on the privacy considerations.

Vaccine passports must be developed and implemented in compliance with applicable privacy laws.  They should also incorporate privacy best practices in order to achieve the highest level of privacy protection commensurate with the sensitivity of the personal health information that will be collected, used or disclosed.

Above all, and in light of the significant privacy risks involved, the necessity, effectiveness and proportionality of vaccine passports must be established for each specific context in which they will be used.

  • Necessity: vaccine passports must be necessary to achieve each intended public health purpose. Their necessity must be evidence-based and there must be no other less privacy-intrusive measures available and equally effective in achieving the specified purposes.
  • Effectiveness: vaccine passports must be likely to be effective at achieving each of their defined purposes at the outset and must continue to be effective throughout their lifecycle.
  • Proportionality:  the privacy risks associated with vaccine passports must be proportionate to each of the public health purposes they are intended to address. Data minimization should be applied so that the least amount of personal health information is collected, used or disclosed. 

The necessity, effectiveness and proportionality of vaccine passports must be continually monitored to ensure that they continue to be justified. Vaccine passports must be decommissioned if, at any time, it is determined that they are not a necessary, effective or proportionate response to address their public health purposes.

So far we have not been presented with evidence of vaccine effectiveness to prevent transmission, although members of the scientific community have indicated that this may be forthcoming. We recognize that scientific knowledge about COVID-19 and the vaccines is advancing quickly and discussions about vaccine passports are underway in some jurisdictions. When contemplating the introduction of vaccine passports, we recommend that governments and businesses adhere to the following privacy principles:

  • Legal authority:  There must be clear legal authority for introducing use of vaccine passports for each intended purpose. Public and private sector entities that require or request individuals to present a vaccine passport in order to receive services or enter premises must ensure that they have the legal authority to make such a demand or request. Clear legal authority for vaccine passports may come from a new statute, an existing statute, an amendment to a statute, or a public health order that clearly specifies the legal authority to request or require a vaccine passport, to whom that authority is being given, and the specific circumstances in which that can occur.
  • Consent and trust: For vaccine passports introduced by and for the use of public bodies, consent alone is not a sufficient basis upon which to proceed under existing public sector privacy laws. Furthermore, consent alone may not be meaningful for people dealing with governments and public bodies that often have a monopoly over the services they provide. The legal authority for such passports should therefore not rely on consent alone.

For businesses and other entities that are subject to private sector privacy laws and are considering some form of vaccine passport, the clearest authority under which to proceed would be a newly enacted public health order or law requiring the presentation of a vaccine passport to enter a premises or receive a service. Absent such order or law, i.e. relying on existing privacy legislation, consent may provide sufficient authority if it meets all of the following conditions, which must be applied contextually given the specifics of the vaccine passport and its implementation:

  • Consent must be voluntary and meaningful, based on clear and plain language describing the specific purpose to be achieved;
  • The information must be necessary to achieve the purpose;
  • The purpose must be one that a reasonable person would consider appropriate in the circumstances;
  • Individuals must have a true choice: consent must not be required as a condition of service.

In Quebec, consent cannot form the legal basis for vaccine passports. In that jurisdiction, requesting their presentation would require that the information is necessary to achieve a specific purpose, one that is serious and legitimate.

  • Limiting Collection, Use, Disclosure and Retention / Purpose Limitation: The collection, use, disclosure and retention of personal health information should be limited to that which is necessary for the purposes of developing and implementing vaccine passports. Active tracking or logging of an individual’s activities through a vaccine passport, whether by app developers, government, or any third party, should not be permitted. Also, the creation of new central databases of vaccine information nationally or across jurisdictions should not be permitted, other than the local databases necessary for the administration and verification of the vaccine. Secondary uses of personal health information collected, used or disclosed through vaccine passports must be limited to only those required or authorized by law.
  • Transparency: Canadians should be informed about the purposes and scope of vaccine passports and about the collection, use, disclosure, retention and disposal of their personal health information for the purposes of vaccine passports. 
  • Accountability: Policies, agreements and laws must minimize any impact on privacy. Individuals should be informed about who to contact to request access to, and correction of, any information available through vaccine passports or to make an inquiry or complaint about vaccine passports.
  • Safeguards: Technical, physical and administrative safeguards must be put in place that are commensurate with the sensitivity of the information to be collected, used or disclosed through vaccine passports. Processes must be put in place to regularly test, assess and evaluate the effectiveness of the privacy and security measures adopted. 
  • Independent Oversight: To ensure accountability and reinforce public trust, Privacy Commissioners should be consulted throughout the development and implementation of vaccine passports. Privacy Impact Assessments or other meaningful privacy analyses should be completed, reviewed by Privacy Commissioners, and a plain-language summary published proactively.
  • Time and Scope Limitation: Any personal health information collected through vaccine passports should be destroyed and vaccine passports decommissioned when the pandemic is declared over by public health officials or when vaccine passports are determined not to be a necessary, effective or proportionate response to address their public health purposes. Vaccine passports should not be used for any purpose other than COVID-19.

https://www.priv.gc.ca/en/opc-news/speeches/2021/s-d_20210519/

Footnote 1

Vaccine passport is the most common term, which refers to a means of confirming a person’s COVID-19 vaccination or immunity status. There are others, such as immunity passport, vaccine or vaccination certificate or card, and digital proof of vaccination, and all of these terms may have slightly different meanings in different jurisdictions.

Return to footnote1Footnote 2

According to the recent Report of the Chief Science Advisor of Canada on this issue (March 31, 2021).

Interesting YouTube summary of Genetic Testing Decision

The Supreme Court of Canada ruled that forced genetic testing is a criminal offence. PCR tests fall within the definition of genetic testing. Do the C-19 vaccines also fall within the definition? Here is an interesting overview of some of the available information: