Episode 13: COVID-19 vaccine passports: British Columbia and Alberta

23 novembre 2021 | Tracey M. Bailey, KC, Annie Alport

( Disponible en anglais seulement )

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Annie Alport: Hello and welcome to Morning Commute with Miller Thomson, you’re listening to episode number 13. I’m Annie Alport.

Tracey Bailey: And I’m Tracey Bailey. This is the fourth episode in our series on legal issues related to COVID-19 vaccines.

Today we’re discussing vaccine passports. In our earlier episodes, we discussed mandatory vaccines generally, the legal issues they raise, issues under our Charter of Rights and Freedoms, and mandatory vaccines in the workplace, and now we’re wrapping it all up with a discussion about vaccine passports, which of course is on everyone’s minds these days.  Before we get into the details, let’s make clear what we mean by “vaccine passport”.

This term has been used by the media, political actors and others, but what does it really mean? When we talk about a vaccine passport, what we’re referring to is the requirement to show proof of vaccination for COVID-19 in order to access certain places. To be clear, we’re not talking about state-ordered vaccination, and we’re not discussing what employers must or may need to do to create vaccine policies for employees.  So if an employer is requiring proof of vaccination in order for employees to come to work, that’s not what we mean by a “vaccine passport”. What we’re talking about is the need to show proof of vaccination to access certain, but not all, places that are normally accessible to the public such as certain shops, restaurants, and sports venues.  And when we think of passports, we might also be thinking about the form they can take.

Annie: Yeah, so the actual “passport” will look different in different jurisdictions, and in fact the form is changing over time. Paper records or digital codes are a couple of the key examples. And regardless of what they look like, proof of vaccination to enter certain places as a patron, and not as an employee, is what we’re talking about.  So what are the different ways in which these have been introduced?

Tracey: So Annie, as you know, most provinces have recently implemented a vaccine passport system, but in different ways. As we don’t have time to discuss them all, let’s try to look at two different provinces, BC and Alberta, as contrasting examples of how vaccine passports have been introduced.

So starting with British Columbia – in BC, vaccine passports have been mandated at the provincial level through orders issued by BC’s top public health official. There are two orders, issued by BC’s Provincial Health Officer, Dr. Bonnie Henry, that collectively establish a vaccine passport system, and we’ll discuss some of the details of that system shortly. But before we do that, let’s contrast that with the Alberta approach.

And as you know Tracey, Alberta has not mandated vaccine passports to access certain places, but Alberta’s Chief Medical Officer of Health, or CMOH as I’ll call her, Dr. Deena Hinshaw, has issued an order under the province’s public health legislation that says, assuming you are an in-scope business, organization or person, if you comply with the conditions under that order, you may operate without a number of restrictions in place that would otherwise be required. It leaves it up to the in-scope operators to decide whether they wish to implement the vaccine passport program or not. The province is calling this the “restriction exemption program”, and it came into effect September 17, 2021.

Tracey: So why don’t we turn now to some of the key details of each of these programs.  Annie, what are the key parts of the BC passport system?

Annie: So, as you mentioned, Tracey, BC issued two orders on September 10. They essentially provide that individuals over 12 years of age must show proof of vaccination in order to access restaurants with table service, cafés, pubs, bars, lounges, nightclubs or tasting rooms, for indoor gatherings of more than 50 people, and indoor gatherings of any number of people for exercise. These requirements came into effect on September 13, 2021, and at first, proof of at least one vaccine was acceptable. But as of October 24, proof of two vaccines is now required.  Acceptable proof is government-issued proof of vaccination, whether electronic or paper and issued by a government of any jurisdiction. And there are also a number of exceptions, which we should mention.

Tracey: Yes. For example, built into BC’s order about gatherings, it does not apply to recreation activities for youth, that’s anyone under the age of 22 years old, or gatherings such as drug and alcohol support group meetings, court sittings, work camps, language courses, and a number of other things that would otherwise be caught by the order. Notably also, it does not apply to places such as grocery stores or takeout food establishments. In other words, as in other jurisdictions, there has been an effort made to exclude places that are more essential to a person depending on their circumstances, and to include things that might be regarded as optional, such as eating at a restaurant. Though one could look at what is in and out and debate whether some of the places should be moved to in or out of scope.  Another noteworthy part of BC’s system is to reinforce that there is no discretion under the BC orders as to whether in-scope establishments are to implement the passport system. If businesses are in-scope under the orders, they must establish vaccine passport protocols.  This is not the case in Alberta.  So let’s take a look at what that looks like.

Annie: So, Alberta declared a state of public health emergency again on September 15.  Then on September 16, the CMOH issued an order imposing a number of new restrictions, including new masking, physical distancing, and work-from-home requirements, and restrictions on private residences, private gatherings for protest, and restrictions on businesses, places of worship, numerous activities and schools. The original order was rescinded and replaced with one 21 pages in length, and another order briefly amending this was issued October 7.  So with all that, we only have time to cover a few examples. But essentially, these orders set out numerous, onerous restrictions on individuals, schools, businesses and other entities.  The CMOH also issued an order providing for the vaccine passport program (which has since also been rescinded and replaced). If you’re an in-scope entity, you have a choice of following all the restrictions I previously mentioned, or implementing a program which will enable you to operate more normally. In other words, Alberta has left the decision of whether to implement the passport system with in-scope businesses and organizations.

Tracey: Annie, can you also speak to what must be provided in Alberta under its vaccine passport system?

Annie: Also different from BC, if in-scope businesses, entities, events and persons choose to implement the vaccine passport, they must require patrons to provide proof of vaccination, proof of a negative test taken in the last 72 hours, or a medical exemption letter.  Proof of vaccination can be provided by showing an immunization record from AHS or another province, or other government-issued proof of vaccination. If someone is showing a negative COVID test result, it must be from a test that was privately paid for and the test must have been taken in the last 72 hours. Also, unlike in BC, a person can provide proof of a medical exemption. Tracey, maybe you can speak to that and what that looks like.

Tracey: Thanks Annie. The order requires a person to provide an original, signed vaccine medical exception letter. It may be provided by a physician or a nurse practitioner, only those two types of healthcare professionals, and it must confirm that the person cannot be vaccinated due to medical reasons or that they’re participating in a COVID-19 vaccine clinical trial.  There are some other details such a letter must contain.  For example, the name, phone number and other contact information of the health professional, and the date on which it was provided. In addition to all of that, the order must make clear that the physician or nurse practitioner who provides such a letter may only determine there is a medical reason against vaccination based on guidance from their College or their regulatory body.  We’ve said that in Alberta, one order imposes restrictions, and then the second order allows activities without all of the restrictions. So perhaps I’ll use a couple of examples to explain.

So first let’s talk about restaurants as an example.  If a restaurant does not implement a vaccine passport system, they are not permitted to provide indoor food and beverage services, they’re under severe limitations even with respect to outdoor dining, and they must stop serving liquor after 10 p.m. If they do implement the passport system, they can operate without these restrictions, but to do so they must obtain from all patrons age 12 and over proof of vaccination, proof of a negative test taken in the last 72 hours, or proof of a medical exception.  Let’s think about another example – indoor group physical activity for adults – for example yoga studios or gyms. Without using the passport system, this is completely prohibited. But, if you use the passports, and obtain proof of vaccination, proof of a negative test taken within the last 72 hours, or proof of a medical exception, you can operate.

So now that we’ve laid out the basics of each system, let’s talk briefly about some of the key legal issues. Privacy is one thing that’s important to mention.

Annie: Absolutely. No matter how a vaccine passport system is established, whether as a mandatory government program or by businesses exercising their discretion as we’ve seen in Alberta, privacy is a key issue. Businesses and organizations are collecting patrons’ personal information. In doing so, they need to be aware of legislative requirements regarding how and for what purpose they can use that information, whether they can retain any information, and if so, what information they can keep and how they should store it. This will vary province by province, depending on the legislation that applies and depending on the business or other entity in question. It may also depend in part on the orders in place.

In Alberta, for example, generally speaking, private organizations are governed by the Personal Information Protection Act, and public organizations are governed by the Freedom of Information and Protection of Privacy Act. Some of the in-scope organizations will be regulated by PIPA, and others by FOIP. The system doesn’t require keeping any of the information, so following the requirements of applicable legislation is all that’s required.

BC’s orders, by contrast, provide that businesses such as restaurants or other organizations can keep certain information on record. This is so that repeat patrons don’t have to show proof each time they show up – a record can be kept on file. That’s not the case under Alberta’s orders.

Another legal issue that we discussed in a previous episode was the Charter. For vaccine passport systems that have been mandated by the government directly, in BC for example, where businesses have no discretion to implement the government system, these passport systems will be subject to the Charter, and questions are likely to arise regarding freedom of expression, conscience and religion, the right to liberty or security of the person, and other constitutionally-protected rights.

Tracey: Yes.  And in fact, there have been at least two challenges to date. One was launched in BC on September 23, by two women who say doctors have advised them against being vaccinated for COVID-19 based on medical reasons. They have filed a petition in the BC Supreme Court challenging the system as unconstitutional under the Charter. As we noted, unlike Alberta’s system, BC’s passport system does not provide for proof of a medical exemption as an alternative to proof of vaccination. Depending on how the challenge has been framed, this could be an issue.

A second challenge has been initiated in Ontario on October 15, alleging violations of freedom of conscience and religion, freedom of expression, right to liberty and security of the person, the right to be free from unreasonable search and seizure, and equality rights under the Charter. Generally, it claims that Ontario is threatening the applicants with a loss of full participation in society in the event they refuse to be fully vaccinated. It will be interesting to see what comes of these and other Charter challenges. The framing of the challenges, the evidence introduced, and the details of the particular provincial vaccine passport system will be important factors.

Annie, perhaps you can comment quickly to wrap this up on situations where the Charter is unlikely to apply.

Annie: For sure.  So, with an approach like Alberta’s, it’s interesting because the government has supported but not required in-scope entities to implement a vaccine passport system. They’ve done it indirectly, so to speak, because they’ve given businesses and organizations the choice of either implementing a vaccine passport system or following restrictions. As a result, it’s not as clear whether the Charter will apply. Of course, the orders themselves may be challenged as they are issued under government legislation, but it’s ultimately businesses and others that are choosing whether to implement the vaccine passport system. If they choose to take that route, as private actors, they are not subject to the Charter. So in these contexts, it’s more likely that we’ll see other types of challenges such as challenges under human rights legislation, which does apply to private actors.

Tracey: Thanks Annie, and thanks to all of you for joining us.

Annie: This is the last podcast in our series on mandatory COVID-19 vaccines. We hope you’ve enjoyed the series and getting to know us. If you have any questions about anything we’ve discussed on any of our podcasts, please don’t hesitate to reach out.

Tracey: Bye for now!

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