Mandating 'vaccination passports' for access to services, travel would be a violation of civil liberties

This column is an opinion by Allan Richarz, a privacy lawyer in Toronto. For more information about CBC's Opinion section, please see the FAQ.

No vaccine, no service? As the distribution of the much-anticipated coronavirus vaccine continues its rollout worldwide, with varying degrees of progress, there is troubling talk from governments and organizations over requiring evidence of vaccination to obtain goods and services such as airline flights post-pandemic.

While the impulse may be understandable from a population largely terrified of the virus, we must put out of mind entirely the notion of making the provision of services contingent on proof of immunity.

The requirement to carry some form of post-vaccine certificate in order to fully participate in a re-opened society is an unacceptable violation of civil liberties. Such requirements are ripe for backsliding towards discrimination and stigma, as well as creating inequitable outcomes globally, with the harms arising far outweighing the purported benefits.

Nevertheless, there has been increasing chatter about vaccine certificates.

Ontario's provincial health minister Christine Elliott has called their requirement post-pandemic "essential," for example. "That's going to be really important for people to have for travel purposes, perhaps for work purposes, for going to theatres or cinemas, or any other places where people will be in closer physical contact when we get through the worst of the pandemic," said Minister Elliott.

The World Health Organization and International Air Transport Association are also exploring options for an electronic travel pass to show evidence of vaccination.

Salesforce and Microsoft, too, are working on their own digital Covid vaccination passport.

Ticketmaster has reportedly considered, among other options, a system providing proof of immunization via smartphone in order to attend concerts.

Air travel is another prime target for documentation of vaccination, with carriers potentially mandating certificates from passengers before boarding. Indeed, Qantas CEO Alan Joyce has said requiring vaccinations will be a "necessity" for international travellers on the Australian flagship carrier as air travel resumes.

Such policies, however, are wholly regressive, an affront to civil rights, and quite likely offside vis-à-vis various anti-discrimination laws worldwide.

At the outset, obvious inequities arise out of the staggered rollout of the coronavirus vaccine region-by-region across the world.

Wealthy nations that can buy their way to the front of the line – note the former Trump administration's effors to ensure that Americans are given priority access to the vaccine, as well as Canada's own vaccine hoarding – will have a leg up on poorer nations as international travel resumes. In a prime example, Moderna has opted out of supplying its vaccine to South Africa, and the African continent itself may be in for a long wait before appreciable numbers of shots are available.

Even among wealthy nations, stark differences will emerge. Canada, for example, is expected to lag months behind the U.S. and U.K., owing to its inability to secure and manufacture adequate vaccine supply beyond its perfunctory initial order.

Not to mention inequalities within those wealthy nations themselves, given the notoriously poor health care access of minority and low-income communities relative to affluent portions of society. In Canada, there is a history of the well-connected simply skipping to the head of the line for vaccinations.

The notion of requiring a clean bill of health in exchange for services – or denying service based on perceived ill-health – also has a long, shameful history, one exacerbated by the current abject fear of the coronavirus. Services, including air travel, accommodations, employment and education, have historically been denied to HIV-positive populations, epileptics and a host of others on so-called health grounds.

It has been such a serious problem that prohibitions on discriminating based on physical disability, such as that found in the U.S. Air Carrier Access Act (ACAA), frequently include medical conditions. In some jurisdictions, such as Nova Scotia, human rights codes expressly prohibit discrimination based on "an irrational fear of contracting an illness or disease."

And for good reason. To accept otherwise is to accept the ill, or those perceived as ill, as second-class citizens to be denied full participation in society.

Requiring proof of clean health in exchange for services and accommodation is an affront to the last 30 years of human rights progress. This is doubly true when one considers the implications of disease stigma in relation to minority populations — woe betide the hapless traveller with a tenuous grasp of English who sneezes at an airport and is besieged by an army of airline staff and officious citizens demanding to see a vaccination certificate.

More generally, demanding evidence of vaccination post-pandemic smacks of the same irrational terror that gripped the public and policymakers in the post-9/11 period, when there was a panicked curbing of civil liberties in the name of safety. The public was scared and demanded action, and politicians, eager to appear decisive and shore up their own power, were only too glad to oblige in the security-theatre illusion.

As is often the case in times of national crisis, we are too quick to toss aside civil liberties and regress on anti-discrimination policies in exchange for the guise of safety. But as the continued overreach of those post-9/11 policies have shown — and as any traveller who has trod shoeless through an airport security checkpoint nearly 20 years after shoe-bomber Richard Reid knows — those measures are never temporary.

Moreover, there is as of yet only early-stage data about the long-term immunity conferred by the coronavirus vaccine, putting into question the efficacy of vaccine passports; never mind the practicality of small and medium-sized businesses enforcing them.

Justification for vaccine passports is also weak when one considers the alternatives available for mitigating disease transmission.

Airlines, for instance, can continue to mandate mask-wearing onboard, utilize hospital-grade sterilization protocols between flights and, to the extent possible, keep middle seats unoccupied and screen passenger temperatures. Expanded rapid COVID testing also exists as a potential compromise solution. Such minimally intrusive mitigation efforts should be the primary focus; not Orwellian demands for vaccination certificates.

Indeed, as law firm Holland & Knight noted earlier this year in the context of U.S. air travel and the ACAA, "[airlines] may not discriminate against a passenger with a communicable disease or infection in the provision of air transportation" where reasonable risk mitigation exists; a sensible approach relative to the heavy-handed requirements of vaccine certificates.

The coronavirus pandemic has undoubtedly caused significant challenges for both governments and private enterprise alike. Those challenges, however, should not be used as a pretext to worsen global inequalities or to backslide on civil liberties, particularly when reasonable alternatives exist.

• This column is part of CBC's Opinion section. For more information about this section, please read our FAQ.