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August 23, 2021Canadians have been concerned with the idea of digital vaccine passports being required for travel post-pandemic. The main points of contention for some Canadians is privacy, accessibility, and enforcement.
In the coming days, it is expected that we will find out more details about when and how the Canada-U.S. border will open. Last Tuesday, the Minister of Intergovernmental Affairs Dominic Leblanc said the federal government was in talks with provinces and territories about instituting a type of “passport” containing proof of vaccination—and that this passport would more than likely be digital.
Accessibility, Privacy, and Enforcement Issues
Alex Stojicevic is a founding partner of MKS Lawyers and he says the most obvious concern is that those who don’t have access to the proper tech to acquire a digital vaccine passport will face barriers to travel.
“You’re creating a framework here where the paradigm, the basic sort of assumption is that everyone has digital access There are going to be people — seniors, people with disabilities, people that have challenges for a variety of reasons including poverty — that are not going to have access to this; to a cellphone or a tablet that would meet the requirements of a digital set-up. One would imagine there has to be some element of accommodation for people. In fact, we couldn’t have a one size fits all sort of policy.”
Another concern, Stojicevic stated, is determining who will be reviewing people’s proof of vaccine. He says people shouldn’t be required to hand their phones over to Canada Border Services Agency.
“We’ve had Supreme Court of Canada cases now on what the limitations are on them to search your phone and have access to your password. But now here you are giving it to them? What does that mean in terms of ramifications for privacy?”
Stojicevic, who has over 24 years of experience in litigation, says the idea of private companies like airlines enforcing the requirement is also problematic.
“A lot of these enforcement rules at the border, during the pandemic, it’s very important to know that they’ve been really imposed on the airlines, is that even fair to private organizations, or a private company?”
Professionals in the litigation field aren’t the only ones who are questioning the concept of digital vaccine passports. Executive Director Michael Bryant of The Canadian Civil Liberties Association has raised concerns with the privacy of personal medical data.
“We need to make sure that that data, held internationally, is kept secure and private and isn’t used for other purposes and other agencies, other than its intended purpose of international travel,” Bryant says, adding he worries that the passport requirement could become more widespread.
“It’s one thing to require people to waive their privacy rights at the border. It’s quite another thing to ask people or require people to waive their privacy rights once they are in Canada, travelling between provinces or entering public facilities or using public services.”
Stojicevic says there are a number of other basic logistical issues, including the fact that each Canadian province is approaching the COVID-19 vaccine rollout in a unique way, and sharing different data related to the vaccine.
“Provinces have their own health data that they’re not really sharing with the Public Health Agency of Canada,” he says. We have 10 different policies on who was the highestpriority to get vaccinated and who was the lower priority to get vaccinated. So there’s going to be a lot of work to be done here on creating some kind of inferior, information sharing system.
“We have to take whatever it is we create, and make it part of some sort of international standard. Not every country is proving the same vaccines. What if you’ve had two of the Russian one? What if you’ve had two of the Chinese ones? Does that mean you can’t travel? Or can travel? What if, in some States in the U.S., they’re doing a card and in others they’re doing a digital one?”
Some Countries Are Now Accepting Digital Vaccine Passports
While Stojicevic predicts challenges, he believes that with clear guidelines, these policies and processes can be tweaked to work for Canadians who want to travel post-pandemic. But of course, there will probably be some naysayers.
“There are going to be people who think that any kind of vaccine system for travel is unconstitutional, or unfair, or violates some kind of rights. I’m skeptical that any kind of blanket legal challenge like that would find much sympathy in our courts, but that doesn’t mean some won’t try.
“There were lawsuits over masks, there were lawsuits over service not being given to people because they wouldn’t wear masks or follow public health guidelines on social distancing. So, I mean I would almost certainly imagine that those same types of views would result in legal action on vaccine passports.”
What the future will hold for travel post-pandemic is uncertain, but digital vaccine passports are now being accepted in Bulgaria, Croatia, the Czech Republic, Denmark, Germany, Greece, and Poland.
