Are mandatory vaccine passports impeding our Charter rights?

Fatima Syed: Life, liberty, and security. Those are the three things guaranteed to us by section seven of Canada’s Charter of Rights and Freedoms. But in a once in a lifetime pandemic, all three things are threatened by a constantly mutating virus and the choices we make or don’t make to protect ourselves from it. If you choose to not get vaccinated, are you impeding on my right to life? Do you lose your liberty if a government makes vaccines a requirement to enter any public space? Is your security as a citizen of this country threatened if your choice to get a vaccine is removed?

These questions are not easy to answer, nor are the answers clear cut. But in recent weeks, as demands for a vaccine passport grow around the world, some politicians are citing your rights to life, liberty, and security as a reason to allow portions of our population to remain unvaccinated. They’re citing the Canadian Charter of Rights as the reason for their cautious approach. But at the core of their comments and the sentiment behind so many protests against mandatory vaccine passports is a fundamental misunderstanding of our rights. They’re a complex legal mechanism, and vaccine passports, they’re about rules, the rules by which everyone can stay safe and survive a pandemic.

This is a complicated conversation, but an important one. We all have rights. But above all of them is our duty to keep each other safe. So how do we do that during a once in a lifetime pandemic?

Fatima Syed: I’m Fatima Syed, sitting in for Jordan Heath-Rawlings. This is The Big Story. Emmett Macfarlane is a political scientist at the University of Waterloo whose research focuses on the relationship between rights, governance, and public policy. Thanks for being here, Emmett.

Emmett Macfarlane: Thank you for having me.

Fatima Syed: So there’s a lot of chatter right now about the rights of Canadians as we talk about making vaccines mandatory through passports or documents or whatever we’re going to end up calling them. And I wanted to start by asking you a really dumb question, do vaccine passports infringe on the rights of Canadians?

Emmett Macfarlane: Under certain circumstances, rights will be implicated by restrictions on where people can go, restrictions on whether people can retain their jobs. So there are rights concerns around vaccine mandates or vaccine passports. A lot depends on how they are implemented, right? What we are not talking about is mandatory vaccinations for everyone, regardless of situation. We’re not talking about the state holding people down and injecting them, something that would clearly violate our right to liberty and security of the person under section seven of the Charter of Rights, for example. What people tend to mean by vaccine mandates or vaccine passports is limitations on what unvaccinated people are allowed to do and the extent to which they’re allowed to expose others normally in indoor congregated settings. And so the debate is really, should health care workers have to be vaccinated to work at hospitals or long term care facilities, should students have to be vaccinated to attend schools or universities? These are the debates, and such vaccine mandates may or may not affect rights in any number of ways.

Fatima Syed: So let’s unpack that a little bit. What specifically in the section seven of the Charter would be a question here?

Emmett Macfarlane:So I actually don’t think, once we get beyond the idea that we’re going to be requiring literally everyone to get vaccinated regardless of circumstance, I don’t think section seven of the Charter is really implicated anymore. Your security of the person, your right to bodily autonomy and to make your own health care decisions aren’t really directly implicated by the sort of vaccine mandates or passports we’re talking about. What would really come up in terms of any decision by the federal, provincial, or municipal governments under the Charter, and the charter only applies to government decisions, we can talk about decisions by private entities as well, like private businesses, but the Charter only applies to government decision making and public institutions like hospitals.

What we’re really talking about is something like freedom of conscience or freedom of religion, where someone’s personal beliefs are being abrogated by imposing these mandates. And the question is really, are these going to be reasonable limits of those freedoms under the Charter? And I think the answer is unequivocally yes. So long as a vaccine mandate has medical exemptions for people with valid immunocompromised or potential allergic reactions to vaccines, as long as you have those type of exemptions in place, generally, a well crafted vaccine mandate or passport for these circumstances is going to be upheld as reasonable. And that’s because vaccine passports are rationally connected to the objective of keeping other people safe. So the government has this pressing and substantial objective in the context of a pandemic, and it’s proportional, right. So it recognizes that you don’t have the right to put other people at risk.

And, in fact, in some circumstances, the state actually has an obligation to protect vulnerable people, including patients at hospitals, children in schools, and the likes. And I don’t see any court striking down a reasonably crafted vaccine mandate in that sense. Now, a lot of people will jump to the idea that your rights are violated because we’re saying that you actually will lose your job if you don’t get vaccinated. The Charter of Rights doesn’t directly protect your right to a particular job. You actually don’t have a right to be a nurse at a hospital. It comes with all sorts of responsibilities and obligations. You don’t have the right to be a teacher at a public school. What a vaccine mandate really does is ensure the health and safety of everyone in that setting. And so we have to be very aware of what we’re talking about.

When it comes to freedom of religion, I think this can be a bit trickier because a lot of people would say, well, as long as you have exemptions for people with religious beliefs, that should be fine. I’m actually the view that we don’t necessarily need to provide flat out exemptions for people with religious convictions. In some circumstances, we may be able to accommodate people with those views. If you’re a University professor, maybe the University can accommodate you by letting you to continue to teach online or remote courses instead of on campus courses. And that’s the sort of reasonable accommodation we might see to protect rights in that context. But generally speaking, courts, at least when the Charter applies, when we’re talking about government or state institutions making these decisions, of course are going to uphold these as reasonable.

Fatima Syed: There’s this no jab, no job movement that I’ve been noticing, both in Canada, in the United states, in Europe, where people are saying that a vaccine passport would limit their abilities to live life as they choose, that they won’t be able to go into a restaurant, that they won’t be able to go into a movie theatre because they have chosen, for whatever reason, whether it’s religious or personal, to not get the vaccine. How do we unpack that for them? How do we explain to them, as you’ve talked about right now, that a vaccine passport doesn’t impact the rights?

Emmett Macfarlane: So I think it’s important to recognize that in the private sphere, too, there’s another set of rights instruments. So we’ve spoken about the Charter as applying to government. All businesses and private enterprises in our provinces also have rights obligations. And this is under statutory human rights codes and acts like the Ontario Human Rights Code. So a movie theatre, a restaurant, they’re actually not allowed to discriminate on the basis of things like race, sex, or engage in a religious based discrimination. So let’s say a movie theatre wants to do the reasonable thing and only admit people who have proof of vaccination. Does that in the case of someone with religious beliefs that they feel prevent them from getting vaccinated, does that discriminate? The answer is actually yes. Again, the question is whether it is discriminate reasonably.

So what’s interesting is that these private businesses also have obligations under health and safety regulations to undertake reasonable initiatives to keep everyone safe. A reasonable initiative might include vaccine passport for entry. What I think we need to impress upon people who take perhaps a more self centred view of rights, as any restrictions on their own mobility and liberty is get them to recognize how this virus actually transmits and the fact that they are actually putting other people’s rights and their health and their very lives at stake by acting on the presumption that they have no obligation to society to take appropriate measures and to be vaccinated, to enter these spaces. This is an air born virus in a once in a century pandemic. And your rights do not extend to putting other people at risk. And quite literally, your liberty ends where my liberty begins. Your freedom to swing your fist ends at my nose. And I think this is the attitude that we need to inculcate.

If we allowed a substantial minority of people to take this attitude when we were inoculating people against smallpox, we would still have smallpox, and many people would still be dying from smallpox. We would still have polio, and any number of diseases that we have effectively either eradicated or conquered would still be with us if these attitudes prevailed. And I do worry that one of the things we have seen really drive vaccine hesitancy is not really rooted in people’s principled conscientious objection, but in their fundamental misunderstanding of science and the rampant spread of conspiracy theories and misinformation on the Internet. These are things that we actually have to robustly confront.

And interestingly enough, one of the ways to do that is actually to go from the pleading and attempts at motivation that we’re seeing from government and other actors and go to a rules based system of enforcement, because a lot of the hesitancy is actually driven by the lack of inconvenience that we are allowing with regard to vaccines. We have seen in other jurisdictions from France and now, most recently, Quebec, that have talked about or implemented vaccine passports. We have seen big spikes in people registering to get vaccinated. So a lot of the hesitancy is actually kind of a lazy hesitancy, where it simply hasn’t either been convenient enough for some people or urgent enough for some people to get vaccinated. It’s not really this hardcore anti-vax sentiment that has gripped 20% of the population. It’s a much smaller proportion that we’re talking about there. And implementing these rules might be precisely the sort of incentive we need to reach herd immunity and make this almost a non issue. And in some ways, I think, actually, it’s the governments that are our biggest obstacle to herd immunity right now.

Fatima Syed: Well, it’s interesting because I wanted to talk to you about the political use of rights in this matter as well, right. We saw Andrea Horwath in Ontario…

Clip of Andrea Horwath: I don’t take lightly people’s Charter rights. And so that’s why what we are saying is rapid tests or your vaccination status and…

Fatima Syed: … being that she didn’t support mandatory vaccines for healthcare workers because they would infringe on Charter rights, and then walk that comment back. We’re seeing the use of similar language in Alberta and other countries around the world. It seems like it’s becoming more common to mobilize the Charter and rights talk, as you call it, a sort of a trump card to oppose anything that politicians don’t want to do. What would you say about this? What’s your take?

Emmett Macfarlane: Yeah. I mean, it’s a very real phenomenon. And scholars have talked about this kind of inflationary rights talk as employing rights against any type of other values or policy objectives or societal interests in a way that really conceives of rights as these absolutist trump cards. I’m not sure a lot of people realize that the very first section of the Charter talk specifically about how all of the rights in the Charter can be reasonably limited in a free and Democratic society.

So the very first section of the Charter tells us that these rights are not absolute. And one of the problems with our continuously invoking rights is that it makes policy making, even in the context of an unprecedented emergency like the one we’re living in right now, all the more difficult because there’s a subset of people who believe the government simply cannot take what would otherwise be, quite frankly, reasonable action to mitigate the death and carnage that we’ve seen. And I think a lot of governments, and this extends to University administrators and all sorts of people, are really disincentivized to be the first to act. I think if we had seen more governments take quick action on vaccine mandates, there would have been a rapid domino effect. It would have been seen as common sense. But because of this hesitancy and a lot of it is driven by this rights discourse or in the context of universities, we see really a fear of litigation, often a mistaken fear, because I don’t think they’re getting good legal advice about how these rules would be upheld. And it’s really driving our own incapacity to do what’s right.

And we have actually in many ways prolonged the pandemic, not just with respect to vaccine mandates, but with respect to many of the other restrictions that we know would work if we had implemented them quickly enough. So this is a really destructive and worrying tendency. And I think it has actually encouraged, at least in some people, a very selfish attitude about their rights, without any reciprocal obligation to think about the rights of other people. Because as much as the Charter might be in many ways an individual rights document, it’s a document that expresses the rights of everyone. And in a lot of situations, including this one, there are rights on both sides of the coin.

Fatima Syed: So are rights almost being used as a cop out to make difficult decisions?

Emmett Macfarlane: Well, I think that’s what we saw with Andrea Horwath and the example you cited in that she took a position that she probably at the time felt would help her avoid political controversy because she knows there’s a small but significant minority of people opposed to vaccine mandates. And she used the Charter as a bit of an excuse because it was clearly an uninformed view about what the Charter would or would not allow. And it was so uninformed that within 24 hours, she quite dramatically reversed her position and acknowledged that she should not have even mentioned the Charter.

Clip of Andrea Horwath: I fully support mandatory vaccination in health care and education based on science and public health priorities. On Wednesday, I made a mistake suggesting a mandatory vaccine policy during a global pandemic should take a backseat to Charter rights.

Emmett Macfarlane: So I suspect in that intervening period, that 24 hours period, she heard from a lot of people not only their concerns with her position, but that she was wrong about the rights at stake. And so I think that’s exactly an example of what we’re talking about, that people haven’t really thought through why section one of the Charter exists. And it exists not only to recognize that rights aren’t absolute in a theoretical sense, but it exists precisely for the sort of emergency situation of a pandemic to allow governments the flexibility to respond to these crises.

Fatima Syed: So what’s the solution? If rights are being weaponized to avoid making decisions that could be largely beneficial to society, how do we A) fight that, and B) how do we be stop that?

Emmett Macfarlane: I think part of it is that the people who are the vast majority and public opinion poll after public opinion polls show that the vast majority of Canadians support some type of vaccine passports or mandates. I think there’s a tendency for the majority to be quieter than the minority. And I think those of us who want to see an end to the pandemic need to get very loud very quickly. People need to get in touch with their elected representatives at all levels of government and pressure them as earnestly as the people who are on the anti-vax or vaccine hesitancy or anti-passport side of the equation, because right now, I suspect even though 80% of Canadians might support a vaccine mandate, politicians are hearing more often from that 20% who are opposed, and that’s a big problem.

The other thing I think we need is a degree of time, because I think vaccine passports are going to be inevitable. We’re not going to reach herd immunity without them. Even if 80% to 85% of people are vaccinated, that may not be enough for the Delta variant and other variants to go away. And the only way to get it up to 90% might be vaccine passports. And so it’s not just about the crucial objective of keeping people safe in the interim, but the long term objective of getting this pandemic behind us once and for all might hinge on a vaccine mandate. And once politicians realize this, and I think they’re going to realize it as more and more jurisdictions do the right thing and act, we’ll see those dominoes start to fall.

But right now, politicians have had every incentive to not act because they don’t want to do what they think is the politically controversial thing. In the long run, it’s the politicians that act sooner that are going to benefit because their populations are going to benefit from the effects of a vaccine mandate. We’re going to see higher rates of vaccinations. We may even achieve herd immunity if enough people respond to these incentives to get vaccinated. And in the short to medium term, we’re going to keep more and more people out of hospitals because public spaces, whether they be long term care facilities or movie theatres, are going to be safer. Our public schools will be safer if everyone who’s eligible for vaccine is vaccinated if they’re on site. This is a no brainer, and it’s quite frustrating to see the inaction on the part of our political leaders. But this has been something that’s been happening throughout the pandemic on all manner of things.

Fatima Syed: I know you’ve given us some political solutions in terms of how to move forward and how to avoid the rights talk in doing the right thing, but I wondered if you could give us some pointers to close on how to talk to someone who could come up to me and say, I have a right to not take a vaccine. I don’t want these passports. What could I say to them in layman’s terms to help them understand everything we’ve talked about today?

Emmett Macfarlane: I think we have to try to use analogies that might actually get people to understand that whole combination of the way the virus is transmitted, the way other people are affected by people’s actions. One of the ways to do that, and one of the best analogies I’ve seen, is to ask people whether or not they think it’s okay to smoke in a nursery or even to smoke in a restaurant. When I was growing up, restaurant smoking was a normal thing. We’ve abolished that because we recognize the harms of secondhand smoke, that it’s not just about the smokers right to smoke when and where they please. And vaccinations is precisely the same thing. If you are unvaccinated, you are far more likely to contract COVID and transmit it to others. And those other people have an interest in being able to go to restaurants and go to movie theatres and go to the hospital without having to worry that there are unvaccinated and exposed people breathing the same air as they are.

There will be a subset of people who simply don’t care. There is a subset of hardened, anti-vax people, and so we have to recognize that some people won’t be reachable, but they’re a minority within the minority. A lot of the people who haven’t yet gotten vaccinated have other reasons for doing so, and some of that is as simple as convenience and a lack of urgency. Some of it is simply that now that things have opened up, they can live their lives normally without the inconvenience. And it’s those people we need to reach, and some of them may not be reached until there’s actually a rule in place that makes it inconvenient for them. But I think there’s a lot of people we can reach by showing them all of the ways we already have rules in society to keep other people safe. Rules that may not affect you and me, but may affect vulnerable people, people in situations that need to be protected. And getting vaccinated is actually a pretty low cost, low risk endeavour to ensure other people’s safety. I think there is a subset of the people who remain unvaccinated who, if they have someone patient enough to walk them through the logic to use analogies, that maybe they’ll be reached.

Fatima Syed: Emmett, thank you so much for walking us through that.

Emmett Macfarlane: No problem.

Fatima Syed: That was Emmett Macfarlane, a political scientist at the University of Waterloo, and that was The Big Story. You can find more at thebigstorypodcast.ca. If you want to send us a message, we’re on Twitter at @TheBigStoryFPN. You can also email us at thebigstorypodcast@rci.rogers.com.

Thanks for listening.