Vaccine Ins and Outs: An Exploration of the Legal Issues Raised by Vaccine Passports

Abstract

In this report five leading experts in health law and medicine at the University of Ottawa examine vaccine passports in the context of Charter rights, privacy rights, and implementation. The paper first explores whether a vaccine passport regime would infringe Charter rights, including mobility rights, rights to liberty and security of the person, freedom of religion and conscience, and rights to equality and non-discrimination. Broadly speaking, the authors conclude that a well-designed vaccine passport regime, backed by an equitable vaccine distribution scheme, will likely withstand a Charter challenge. The paper then turns to an in-depth discussion of privacy issues, first exploring key aspects of privacy compliance in the design of vaccine passports before turning to an analysis of their use conditions. Again, the paper’s broad contention is that privacy issues raised by vaccine passports can be adequately addressed through careful design and regulation. The authors then discuss potential avenues for the implementation of vaccine passports, within the framework of Canadian federalism and its fragmented jurisdiction over healthcare and public health. As part of this discussion, we suggest some broad principles for the design of a vaccine passport regime, arguing that passport gating should be limited to non-essential services, and that wherever feasible, the unvaccinated should be accommodated with rapid testing.

Note:
Funding Information: This research is funded in part by the COVID-19 Immunity Task Force, launched by the Government of Canada in collaboration with Canadian Institutes of Health Research.

Conflict of Interests: Kumanan Wilson is the CEO of CANImmunize Inc. CANImmunize is currently not developing an immunization passport but has been asked to provide input on proof of immunization status for COVID-19. CANImmunize has received funding from public and private sources (https://www.canimmunize.ca/en/partners). Dr. Wilson owns shares of CANImmunize and does not receive remuneration for his activities as company CEO. He is a member of the independent data safety board for the Medicago COVID-19 vaccine trial. No other competing interests were declared.

Keywords: Health Policy; Access to Care; Fairness; Federalism and Constitution; Industry Regulation and Competition Policy; Consumers' Interests and Protection; Economic Union and Internal Trade; Health Care Delivery and Management

JEL Classification: H12; I18; I31