Do Vaccine Passports Belong in Canada?

Do we as Canadian citizens really want to live in a country that actively promotes the division of its own citizens into two unequal classes?

“This creates unequal representation under the law, which is antithetical to the Canadian identity.”

Canada’s provincial governments have implemented Covid-19 vaccine passport programs across the country. If you live in Canada this is probably not news to you. The vaccine passport programs restrict unvaccinated individuals from engaging in what the government has deemed as non-essential activities. The intention of the program is to mitigate the spread of the virus which is, presumably, a noble goal. But what does this policy actually mean for our country? In order to understand the problem in a more informed way, we need to take a look at Canada’s Charter of Rights and Freedoms.

Section 1 of the Charter states that it “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” That language is dripping in legalese, but what it boils down to is that if the government is going to contravene the rights of any citizen of Canada, there must be a clear and justifiable reason to do so. This begs two very important questions: Are certain rights being violated by the vaccination passport program? Which ones? And, if so, is this violation justifiable?

Let’s tackle the first question.

Section 2(c) of the Charter states that every Canadian citizen has the “right to peaceful assembly.” The United Nations defines peaceful assembly as “the right to gather publicly or privately and collectively express, promote, pursue and defend common interests.” If an unvaccinated individual is disallowed from peacefully gathering in a restaurant or other public space to pursue common interests with their fellow citizens, this would violate that individual’s right to peaceful assembly, which would in turn violate Canada’s Charter of Rights and Freedoms.

Section 7 of the Charter states that “everyone has the right to life, liberty, and security of the person”. The interesting word in this section is liberty. What exactly is liberty? Merriam-Webster defines liberty as “the quality or state of being free,” which includes:

a. the power to do as one pleases

b. freedom from physical restraint

c. freedom from arbitrary or despotic control

d. the positive enjoyment of various social, political, or economic rights and privileges and

e. the power of choice.

Restricting an unvaccinated citizen from attending a public event contravenes that individual’s power to exercise certain social privileges as well as their power to do as they please as a free citizen of Canada. This can be interpreted as a clear violation of liberty.

Further, section 15 of the Charter states that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.” Creating laws that apply only to the unvaccinated but do not also apply to the vaccinated clearly creates two classes of citizens. The unvaccinated class is then discriminated against because they are required to follow laws that the vaccinated are not required to follow. This creates unequal representation under the law which would appear to be contrary to what the Charter guarantees.

“Now more than ever, we should be focused on coming together, not sowing division.”

There appears to be a good argument that the vaccine passport program is in violation of Canada’s Charter of Rights and Freedoms, but what about question two? If the government is infringing on the rights of its citizens, there must be a clear argument and justification for how restricting unvaccinated individuals from engaging in “non-essential” activities mitigates the spread of Covid-19. In addition, you would anticipate that, in good conscience, there would be no viable counter argument to that point. Unfortunately, that doesn’t seem to be the case.

A peer-reviewed study published in The Lancet on October 29, 2021 compared spread of the Delta variant in household settings between the vaccinated and unvaccinated. The study found that “vaccination reduces the risk of delta variant infection and accelerates viral clearance. Nonetheless, fully vaccinated individuals with breakthrough infections have peak viral load similar to unvaccinated cases and can efficiently transmit infection in household settings, including to fully vaccinated contacts.” The study also went on to state that “Secondary Attack Rate (which is secondary infections) was not significantly higher in unvaccinated individuals compared to those who were fully vaccinated.”

The popular argument in the media in favour of vaccine passports is also based in Section 7 of the Charter. The argument is that the passports slow the spread of the virus, aid public health, and therefore provide “security of the person.” However, according to the conclusions drawn from the study in The Lancet, that doesn’t necessarily appear to be the case. If the vaccinated have a peak viral load similar to the unvaccinated and spread the virus at a similar rate as the unvaccinated, even to individuals who are fully vaccinated, then barring unvaccinated citizens from public spaces does not provide any meaningful increase in safety or security of the person. This leaves no realistic or clear justification for the government to be contravening the rights of Canada’s citizens. In fact, according to an article in The Toronto Sun, the federal Justice Department has already cautioned the Trudeau government that a zero tolerance vaccine mandate is unconstitutional.

As important as the legal argument for the constitutionality of the mandates is, I think there are more important questions we should be asking ourselves. Do we as Canadian citizens really want to live in a country that actively promotes the division of its citizens into two unequal classes? Is bodily autonomy and the rights of the individual something that we value? By creating a second class citizen in Canada, what sort of example is set for our country’s future generations and decision makers? And most importantly, what does history tell us about the trajectory of countries that do create second class citizens?

There is no question that the Covid-19 crisis has been devastating for our country; there is no making light of that. But now more than ever we should be focused on coming together, not on sowing division.