Juno News - September 05, 2021


Vaccine passports are unconstitutional, civil liberties lawyer says


Episode Stats

Length

12 minutes

Words per Minute

173.3337

Word Count

2,142

Sentence Count

115

Hate Speech Sentences

7


Summary


Transcript

00:00:01.000 You're tuned in to The Andrew Lawton Show.
00:00:07.580 We are living in a freaky Friday world right now, and the people that should be carrying,
00:00:12.580 the people that should be leading the fight are not doing that at all.
00:00:16.360 Now, one person who's never shied away from this fight is Christine Van Gein,
00:00:20.440 the litigation director of the Canadian Constitution Foundation, who joins me now.
00:00:24.940 Christine, good to talk to you. Thanks for coming on today.
00:00:27.500 Hey, Andrew. Thanks for having me on.
00:00:28.880 I want to break this down here because I find that when a lot of people are talking about
00:00:34.320 vaccines and vaccine mandates, they tend to conflate what are two very distinct questions,
00:00:40.100 which is, you know, should people get vaccinated and should the government be able to really
00:00:44.360 segregate society along the lines of vaccination, which is what vaccine passports certainly do
00:00:50.360 and what the Ontario announcement does. Let's talk about this because there are a lot of people that
00:00:55.160 I've talked to and I know you've talked to as well who are very much pro-vaccine but are against the
00:01:00.180 vaccine passport. And I was wondering if you could elaborate on that a bit.
00:01:03.960 Oh, I am one of those people. I am pro-vaccination. I am vaccinated. I'm double vaccinated. My family's
00:01:11.160 vaccinated. I think anyone who's able to get vaccinated should choose to do so. You know,
00:01:16.600 I'm a civil liberties advocate and I'm really passionate about the right of people to make
00:01:21.860 their own choices about their own lives. I think there's all kinds of things we would choose people
00:01:26.860 they would do differently, but we don't get to run their lives for them. So I think we need to
00:01:32.960 protect the right of people to make choices about their own medical treatment. And yes,
00:01:37.480 vaccinations and medical treatment, that decision needs to be based on consent. And as we take
00:01:45.180 options away from people, for example, by limiting their ability to access public spaces, then it
00:01:53.040 ceases to become a choice and becomes more and more coercive. And I think that's the problem with
00:01:58.660 vaccine passports. There are a few different issues here. One is just the fundamental question of should
00:02:05.060 your vaccination status have a bearing on what you can do in civil society. There's also the
00:02:11.000 disclosure aspect of this. Should you have to disclose your decisions to the host who works at
00:02:15.980 the local restaurant or to the ticket taker at a concert venue? There are also other issues that
00:02:20.640 are coming up as well. Like one that I've thought of is equity. Not everyone has a smartphone. Not
00:02:25.380 everyone is going to be comfortable putting it on that device. And then there's the privacy aspect.
00:02:30.540 What happens when someone scans your QR code? When you take all of these different
00:02:34.780 dimensions here, what do you think is the strongest argument against them if you were to walk into a
00:02:39.780 court challenging this? That's a great question because we are considering doing that very thing
00:02:45.000 of challenging it. So there are three rights that I think are mostly engaged. The first is
00:02:49.420 section seven, life, liberty, and security of person. Most compelling is security of person of those
00:02:55.740 rights because it needs to be an informed consent that you decide what you put in your body.
00:03:02.520 I think section eight, privacy rights, could be engaged. Now, I don't have a whole lot of concerns
00:03:09.160 about people carrying around a physical piece of paper showing it with a piece of ID to a waitress.
00:03:16.080 I think that minimally engages your privacy rights. But the more and more digital this becomes,
00:03:22.880 I've seen some pretty shocking stuff that's happening in Australia about what they're doing.
00:03:26.920 They're using smartphones to track movement and things. You know, we're not doing that in Ontario
00:03:32.960 yet, but there have been a lot of things our politicians have said we're not going to do.
00:03:38.020 So I am concerned. I'm watching on privacy rights. The strongest to me is section 15 equality rights,
00:03:45.200 specifically in Manitoba and British Columbia, where the vaccine passports do not have any exemptions
00:03:52.540 for people who can't get vaccinated for medical reasons. Premier Ford has said, if you can't get
00:03:58.160 vaccinated for a medical reason, you can be exempt from the vaccine passport program. We don't have
00:04:02.920 the details of what that's going to look like yet, but on its face, that's less discriminatory than the
00:04:10.400 Manitoba and British Columbia policies that do not include any exemptions, including for people who
00:04:17.900 have had a first dose of the vaccine and had a serious adverse reaction. Those people, you're
00:04:23.820 out of luck, can't go to all kinds of public spaces if you had that unfortunate adverse reaction happen
00:04:30.280 to you. So on its face, that is, I think, the strongest possible challenge that could be mounted
00:04:37.920 against this policy. I know these are constitutional challenges you've laid out. Looking below that,
00:04:43.540 I've got a fair share of issues with, you know, a lot of the human rights tribunals, but on human
00:04:48.080 rights ground, is there a viable challenge here as well, whether you're talking about in Ontario,
00:04:52.520 which has very broad protections on creed and also on medical status? Yeah, I mean, I'm not super
00:04:59.540 convinced that the creed aspect is a strong argument against getting vaccinated on religious,
00:05:08.820 or I guess creed grounds, which is not super elaborated ground. Belief is protected in their
00:05:16.320 charter as well. It's not, it has not been well considered by the court. So I also think that the
00:05:23.300 religious reasons not to get vaccinated are very few. You know, you have, you have to prove a lot to
00:05:30.300 show that you have a real genuine religious reason why you can't get vaccinated. You need to show
00:05:36.900 sincere belief. You need to show, you know, that you're living your life in this particular way.
00:05:42.500 And I think that's hard to, hard to show. And remember your rights, your religious rights,
00:05:48.640 any rights, almost a number of your rights under the charter can be limited under section one.
00:05:54.120 So your religious freedom can be limited. I think that that is, is maybe just a harder case to make
00:06:02.200 out constitutionally than the equality rights for people who are pro vaccine, and they have
00:06:07.940 experienced some sort of disability. So imagine a person who developed there, there can be rare,
00:06:15.780 but they happen neurological reactions to the vaccine, and they go for physical therapy in a gym.
00:06:23.880 They can't get the second dose of their vaccine, but they can't enter the gym where they get their
00:06:28.760 physical therapy. That is so discriminatory in my mind. I think that that is a really clear case.
00:06:36.540 I'm actually speaking to someone later today who is in a situation like that.
00:06:41.800 I think that's a very good example. And I know in the lockdowns, there was a challenge along very
00:06:46.660 similar grounds, people whose physical wellness depends on being able to work out in a gym. You
00:06:52.240 mentioned section one of the charter, we've seen that used in a number of COVID related court challenges.
00:06:57.860 Most recently, I think, hotel quarantine, or they might have been a few beyond that as well. And it
00:07:02.660 seems like courts have taken a very liberal application in saying that, you know, with a
00:07:08.260 pandemic, all bets are off. Is that likely to happen with a vaccine passport challenge as well?
00:07:14.640 Yeah, as well, we were involved in the quarantine case, we obviously were not happy with the outcome
00:07:19.700 in that quarantine hotel case, where the court didn't even take it to section one, it didn't
00:07:26.800 even get to section one analysis. But under section one, the way the analysis works is you need to
00:07:32.620 just first you show that a right is engaged. Let's use the example of your quality rights. For example,
00:07:39.300 these people who can't be vaccinated for medical reason, their rights are engaged. But then you get
00:07:44.900 to the section one analysis. If the right is being limited, how is that limit justified?
00:07:52.180 The government needs to show three things to show that it's justified, it needs to be minimally
00:07:56.320 impairing. So it can't limit the right more than it needs to, to achieve the goal. It needs to be
00:08:01.540 rationally connected to the objective. So it has to actually, the policy you're imposing actually has
00:08:08.700 to actually help achieve that goal. And it needs to be proportionate. So it can't do more harm than good.
00:08:13.800 And the government needs to pass on all three of those parts of the test. And I think when you look
00:08:19.380 at the failure to create medical exemptions, in particular, for people who can't get vaccinated,
00:08:25.540 we know it's not minimally impairing, because Ontario is creating medical exemptions. If Ontario
00:08:31.380 thinks it's necessary and possible to achieve that goal, with the goal of reducing, you know,
00:08:39.860 the spread of COVID in these indoor settings, while still having medical exemptions, if Ontario can do
00:08:45.700 it, why can't Manitoba and British Columbia, I think that that that absolutely fails in the Charter
00:08:49.960 One scrutiny. And that's why that's one of the cases we're looking at doing.
00:08:54.000 And I know you've been focused, I think, rightfully so on the legal aspect of this. And I know there is
00:08:58.720 also a political dimension of this that we haven't yet seen. But I still think when you look at vaccine
00:09:04.620 uptake, it's very high. So the idea that such an extreme measure is needed, when people are doing
00:09:11.700 their part to use the government's language on this, it just doesn't seem to be a justified step.
00:09:17.740 Yeah, we have a huge, huge voluntary uptake of vaccination in this country and in this province
00:09:23.580 as well in Ontario. That's great. That's wonderful. I think people should go and get vaccinated. I think
00:09:28.620 the government should make vaccination easy, convenient, they should educate people about
00:09:34.100 the value, the reason vaccination is a good idea. And, and the fact that so many people have chosen
00:09:40.280 to do that, I think actually undermines the case for vaccine passports. If so much of the population
00:09:46.260 is vaccinated, what is the rationale for restricting access to civil society for, for a very small number
00:09:55.460 of people who have made a different choice than we made. It's not going to amount to, you know,
00:10:00.180 overwhelming the hospitals, unless the government can prove to us, and the onus is on them, that it's
00:10:06.580 going to overwhelm the hospitals to have this small number of unvaccinated people going into, you know,
00:10:13.380 an art gallery, then they don't pass the test on section one of the charter. They need to show that
00:10:21.220 there's an actual connection here between the policy and the outcome they're trying to achieve.
00:10:27.380 And not that I want to push the government to go further with this, but I do find it interesting
00:10:31.780 that employees of establishments where patrons have to be fully vaccinated to go in are not
00:10:37.700 required to be fully vaccinated. So that raises the question of, wait, if the whole point is the only
00:10:42.100 way to beat the pandemic is to ensure that any restaurant is only open to vaccinated people,
00:10:47.700 well, why are employees in a different category? Hey, I mean, this is not the first time the
00:10:52.100 government has done something that has a rationality problem, right? The fact that it applies to guests
00:10:58.020 and not staff undermines the rationale. As many people have pointed out, servers are not obligated to get
00:11:05.380 vaccinated at restaurants, but guests are. Even though we know that the outbreaks, at least, at least
00:11:12.500 anecdotally, they seem to be occurring more frequently among staff than between guests at
00:11:17.620 different tables. So I think that it undermines the government's own rationale. And look, I understand
00:11:22.660 why the government is not mandating servers at restaurants to get vaccinated. I think you
00:11:29.060 create some practical problems, both with the law, but more with the businesses themselves. These are
00:11:34.580 businesses that have been shut down for a long time, and they're having a lot of trouble retaining
00:11:39.860 staff to begin with. Oh yeah, yeah. If you tell a restaurant you have to make sure your staff are
00:11:44.580 all vaccinated, I think the concern is that a lot of restaurants are going to have to close again
00:11:49.860 because of this. So I think that's actually part of the government's decision-making process,
00:11:56.660 but I do agree it undermines the rationality of the vaccine passport policy. We will certainly follow
00:12:03.860 what you decide to do over there at CCF, Christine Van Gein, Litigation Director for the Canadian
00:12:09.220 Constitution Foundation. Thanks so much, Christine. Thanks so much, Andrew. Thanks for listening to
00:12:14.900 The Andrew Lawton Show. Support the program by donating to True North at www.tnc.news.