Written by Megan McDermott
Proof of Vaccination Programs have become a popular tool for governments across Canada responding to the fourth and current wave of COVID-19 infections. As an organization dedicated to advancing human rights and liberties while focusing on the relationship between people and the state, the BCCLA in principle supports the implementation of proof of vaccination programs being unveiled across the country right now. This blog will explain why we are in favour of these public health measures while pointing to some features of current proof of vaccination programs that cause us concern.
COVID-19 Can Cause Grave Harms to Those Infected and the Healthcare System
The virus carries the risk of serious health consequences, including death, temporary or permanent disability, and a condition known as “long COVID.” As of the end of September 2021, almost 28,000 people have already lost their lives in Canada after having been infected with COVID-19. Widespread COVID-19 can also cause grave harms to the healthcare system and those harmed by the healthcare system being overwhelmed by COVID-19 patients. In earlier waves, provinces and territories had to contemplate invoking triage protocols that would have resulted in patients with conditions other than COVID-19 being denied or removed from critical care beds. Some people have had their medical treatment for conditions other than COVID-19 delayed or denied because the system was stretched too thin responding to COVID-19.
COVID-19 Vaccines are Safe and Effective
Although we have had concerns about the accessibility of COVID-19 vaccines, we have no doubt that the available COVID-19 vaccines are safe and effective. The potential side effects of the COVID-19 vaccines are very rare and largely treatable (even when not treatable, the risks of the vaccines are dramatically less than the risks of COVID-19). The vaccines reduce the risk of infection and serious disease in the individual who receives the vaccine. Unvaccinated persons are at a higher risk than vaccinated persons of transmitting COVID-19 to other people.
Proof of vaccination programs do not force medical treatment on anyone.
We have long championed personal autonomy and bodily integrity, neither of which are at risk under these programs.
Proof of vaccination programs restrict fundamental civil liberties for some, while protecting and promoting fundamental civil liberties for others
Broadly speaking, given the widespread and devastating impact of COVID-19, the effectiveness and safety of COVID-19 vaccines, and the absence of an equally effective and less intrusive alternative, we believe that programs requiring proof of vaccination can be consistent with and even promote civil liberties and human rights principles. However, the permissibility of any such program will depend on a fact-specific, case-by-case inquiry, and changing circumstances.
Proof of vaccination programs by their very nature impair a variety of constitutionally protected rights and freedoms. These include the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms (“Charter”), including:
- the right to life, liberty and security of the person limited only in accordance with the principles of fundamental justice;
- freedom of religion and conscience;
- freedom of thought, belief, opinion and expression;
- freedom of peaceful assembly; and
- freedom of association.
On the other hand, these same freedoms can be protected by proof of vaccination programs. For example, these programs can reduce the risk of infection for those who cannot get vaccinated or for whom vaccination is less effective. Another case in point is how the proof of vaccination program currently implemented in Alberta allows businesses and venues to avoid restrictive public health measures such as mandatory masking, distancing, and capacity limits if they instead require proof of vaccination or a negative test result from anyone entering.
Concerns about Proof of Vaccination Programs
Although many of us have been subject to the requirement to produce vaccination records in our lives (e.g. to attend public school in some places, to travel internationally, etc.) we realize that the current programs being implemented to reduce the harms posed by COVID-19 are unprecedented in their scope as well as in their use of technology.
As the implications of these measures extend beyond public health, particularly for people already experiencing barriers to housing, services, and businesses, governments implementing these programs need to take adequate direction from communities and organizations that understand how to best navigate public health in the context of precarious status, criminalization, poverty, disability, and other intersecting oppressions.
With such new and expansive programs, there are several areas that we are paying careful attention to:
- Any program that does not provide accommodations or exemptions for the people who are unable to be vaccinated for rare medical reasons does not uphold human rights. The current BC Vaccine Card program is an example of a program with this flaw.
- Programs must be accessible to people without government identification documents, including photo ID, or smartphone technology. In particular, governments must ensure that undocumented migrants and unhoused people are not excluded.
- Programs must avoid requiring Two-Spirit, Trans, and Non-Binary individuals having to use government ID and legal documents that contain their deadnames or inaccurate gender markers.
- Programs must be designed to maximize public health benefits while minimizing privacy impacts. Special consideration must be given to what information is encoded in the proof of vaccination, what information is collected by the organization issuing the proof of vaccination at the time of issuance and what entities are permitted to issue and implement the programs. Personal information collected through proof of vaccination programs must be deleted as soon as public health officials either declare that the pandemic is over or when the programs are no longer necessary, minimally impairing, and proportionate.
- Programs must be monitored on a regular and timely basis to ensure that they only remain in place so long as they are necessary, minimally impairing, and proportionate. As COVID-19 and our understanding of COVID-19 evolves, so too will the justifications for the limits they place on rights and freedoms.
 What we mean when we use the term “proof of vaccination program”: Proof of vaccination programs are state-imposed requirements for people to provide some specified form of evidence to prove that they have been vaccinated against COVID-19 to, for example, access modes of transportation, premises, venues, and services. The term also includes proof of vaccination programs that may arise in the context of employment. Other terms commonly used to refer to a means of confirming a person’s COVID-19 vaccination or immunity status are vaccine passport, immunity passport, vaccine or vaccination certificate or card.
 The BCCLA Board of Directors recently approved a Statement of Principles regarding Proof of Vaccination Programs that further elucidates how the organization approaches and evaluates the wide variety of possible proof of vaccination programs.
 These conditions are currently limited to those with a confirmed severe allergy and those with a diagnosed episode of myocarditis/pericarditis after receipt of an mRNA vaccine.