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

Harmful content

Hate speech

7

sentences flagged


Summary

Summaries generated with gmurro/bart-large-finetuned-filtered-spotify-podcast-summ .

In this episode, Christine Van Gynning of the Canadian Constitution Foundation joins me to talk about her opposition to Ontario's new policy allowing people who can't get vaccinated for medical reasons to be denied access to public spaces.

Transcript

Transcript generated with Whisper (turbo).
Hate speech classifications generated with facebook/roberta-hate-speech-dynabench-r4-target .
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, 1.00
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 0.96
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 0.99
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 0.73
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 0.51
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, 0.93
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 1.00
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.