In 2021, as the Delta variant fueled the “fourth wave” in Canada, provincial governments required residents to provide proof of vaccination (dubbed “vaccine passports”) to access certain non-essential events and businesses. In BC, the passport system came into effect through two orders (the “Orders”) issued by Provincial Health Officer, Dr. Bonnie Henry, under the BC Public Health Act (“PHA”). The Orders were effective until at least January 31, 2022. The hope was that these vaccine passports would increase vaccination rates and help reduce transmission in public places.

To validate proof of vaccination, BC created the BC Vaccine Card with a QR code in digital and paper format. Businesses covered by the Orders must scan the card with a Verifier App to allow patrons to enter. The App only displays a name and vaccination status (partial or full), though the QR code contains more personal information. 

Vaccine passports vary significantly among provinces. In BC, any business falling within the scope of the Orders must require a valid passport. In Alberta, businesses were given the option to require proof of vaccination, a negative test, or a medical exemption letter. Surprisingly, BC did not build any medical or religious exemptions into the Orders. However, the Orders allow a rather cumbersome reconsideration process based on limited grounds.

Vaccine passports create many legal issues, some of which are already brewing in our courthouses and tribunals. The primary arguments against passports have been human rights complaints under the BC Human Rights Code and constitutional challenges under the Charter of Rights and Freedoms.

In Complainant v Dr. Bonnie Henry, 2021 BCHRT 119, the Complainant had asthma and alleged the vaccine passports were discriminatory by restricting access to services based on his disability. The BC Human Rights Tribunal dismissed the case, finding no connection between the disability and not being fully vaccinated. In a second screening decision, Complainant obo Class of Persons v John Horgan, 2021 BCHRT 120, the Tribunal dismissed a complaint based on general political opposition to the passports, holding that “protection from discrimination based on political belief does not exempt a person from following provincial health orders or rules.”

The constitutional challenges are more robust. In two Petitions filed with the BC Supreme Court (File Nos. 218732 and 213582) two disabled individuals advised not to vaccinate argue the Orders unjustifiably infringe upon their Charter freedoms to gather and engage in public life, the right to mobilize, right to life, liberty, and security of the person. In December 2021, the Canadian Constitution Foundation (“CCF”) filed a challenge (BCSC No. 2111137) arguing that the Orders are unconstitutional by failing to provide accessible medical exemptions for persons who cannot be vaccinated for medical reasons.

Both challenges remain in the preliminary stages and the BC government has yet to respond. Hearings will likely occur later in 2022.

If vaccine passports do infringe on Charter rights, the Court must determine if such infringement is justified under section 1. This requires a complex analysis of whether the public health objectives of anti-COVID measures (saving lives, preventing illness, and protecting the health-care system) minimally impair the rights in question and outweigh the harms flowing from vaccine passports. We expect the government will argue that any intrusion is minimal, as the duration and scope of the passports is based on epidemiological evidence and non-vaccinated individuals can still access essential services such as grocery stores.

Regardless of whether these challenges succeed, they have affirmed the importance of Charter rights and freedoms in times of global crisis and provoked an important debate about the balance between individual freedoms and government powers.