Canadian Human Rights Commission weighs in on vaccine passports

The Canadian Human Rights Commission confirms it has engaged in “informal discussions” about vaccine passports with the Office of the Privacy Commissioner of Canada at a time when experts and advocates are debating how to safely reopen Canada’s borders and economy while respecting privacy and human rights.

It’s a complicated issue, and one the commission will be watching closely to assess the human rights at play, said Sue Butchart, manager of policy at the human rights commission.

“Because vaccine passports are just beginning to be implemented, we still don't know all the scenarios that might arise.”

One example she cites is equitable access to COVID-19 vaccines and “whether requirements for a passport might potentially discriminate on the basis of disability or religious belief.”

The commission did not disclose any other information about its role in consultations.

This information comes from an ongoing access-to-information request filed by Canada’s National Observer for a briefing note titled, “Summary of engagement on vaccine passports 2021-03-23.”

The office of the privacy commissioner responded to the request, saying an extension until the end of September was claimed for the briefing note because it is “consulting with government institutions” and the file “will be released once all consultations have been completed.”

When asked about the long timeline, the office said some departments may take longer than others to review the records sent for consultation and that as soon as all the responses have been received, the records will be released.

Canada’s National Observer asked the office to produce a list of the departments and institutions being consulted ahead of the briefing note.

The list included the Canadian Human Rights Commission; Transport Canada; the Public Health Agency of Canada; Innovation, Science and Economic Development Canada; Office of the Information and Privacy Commissioner of British Columbia; Commission d’accès à l’information du Québec; and Office of the Saskatchewan Information and Privacy Commissioner.

Even before Canada’s National Observer requested the briefing note, the idea of vaccination passports was a concern for many institutions.

Vaccine passports inherently raise issues related to privacy and human rights, said Halifax-based privacy lawyer David Fraser.

“I think there's going to be questions related to accommodation of individuals who can't be vaccinated for whatever reason,” he said.

For example, he said pregnancy status and health conditions related to being immunocompromised are both protected grounds of discrimination in human rights legislation.

“So to what extent is requiring proof of vaccination discriminating against individuals who can't be vaccinated on a protected ground of discrimination?” he asked.

Then, there are privacy issues around the collection of personal health information. He said vaccine passports should indicate which people are medically exempt from getting vaccinated without disclosing the health condition or reason for the exemption.

From early 2021 to May 19, Ronald Kruzeniski, the privacy commissioner for Saskatchewan, said his office and other privacy commissioners across Canada met multiple times and compiled a joint statement “in an effort to ensure that privacy is considered at the earliest opportunity as part of any discussions about vaccine passport development.”

The statement warned that although requiring individuals to disclose personal health information in exchange for goods, services, and access to certain areas “may offer substantial public benefit, it is an encroachment on civil liberties that should be taken only after careful consideration.”

It also notes that the least amount of personal health information should be collected, used or disclosed through vaccine passports and said the information should be destroyed when the passport system is deemed unnecessary or when the pandemic is declared over by public health officials.

Saskatchewan is one province that will not require proof of vaccination for people to work or attend events in the province because doing so would violate its Health Information Protection Act. Premier Jason Kenney's office has also said the Alberta government doesn’t intend to create a vaccine passport.

Others are testing the waters.

In early May, Quebec introduced downloadable QR codes that prove a person’s vaccination status to supplement paper documents. The codes are not a vaccine passport, and it is unclear how they will be used, but it is a step closer to implementing a passport system.

Manitoba followed suit in early June by offering immunization cards to people who have had two doses of vaccine and waited 14 days after receiving their last dose. It involves a digital card with your first and last names and a QR code that shows you are fully vaccinated when scanned.

For international travel, anyone travelling to Canada by air or land must submit their electronic information — including self-assessed COVID-19 symptoms, reason for travel, quarantine plan, contact information, and more — to ArriveCAN 72 hours before arriving in the country.

Effective July 5, travellers who upload proof of vaccination to ArriveCAN may be exempt from quarantine and the Day 8 testing requirement.

The Canadian Civil Liberties Association (CCLA) is opposed to the idea of vaccine passports regulating travel and activities within Canada.

All Canadians have mobility rights under the charter, which are supposed to allow people to move freely throughout Canada, and a passport system could infringe on those rights, said Cara Zwibel, director of the CCLA’s fundamental freedoms program.

Zwibel said another worry is that requirements to prove vaccination status could expand beyond COVID-19 to other communicable diseases, resulting in a health system where Canadians have to share personal health information to access basic public services.

“I think the idea has been used as a way to incentivize people to be vaccinated,” she said.

“But really, for the most part in Canada, that's not the approach that we've taken. We've taken an approach where public health looks at the population as a whole and says, ‘We're going to reopen this and that based on where the population as a whole is.’”

Zwibel said this approach is better than a system where some people would lose access to services and rights based on vaccination status.

“We're obviously concerned about the privacy implications and the fact that this would potentially authorize a whole bunch of actors across different segments of society to collect personal health information about people,” she said.

Natasha Bulowski / Local Journalism Initiative / Canada’s National Observer