Should COVID-19 vaccines be mandatory in Canada? What about a vaccine passport? Health, legal experts weigh in

While previous conversations in Canada were focused on getting COVID-19 vaccines administered as quickly as possible, significant public discourse has shifted to whether or not vaccination should be mandated in different settings with some sort of proof of vaccination, often called a vaccine passport or vaccine certificate.

“I feel like with international travel it really is something that...would make sense to do...so that there's an understanding across the board of what the expectations are for quarantine and for what the safety level is of people moving around,” Dr. Susy Hota, medical director of infection prevention and control and infectious diseases specialist at the University Health Network told Yahoo Canada.

Dr. Kerry Bowman, a bioethics and global professor at the University of Toronto, indicated that while vaccine certification internationally is “going to happen,” he does not believe Canada needs this type of proof of vaccination nationally right now.

“The first problem is, if they were introduced let's say tomorrow or next week, is a lot of Canadians, including Ontarians, have not yet had a chance, even with their best of intentions, to be fully, meaning doubly vaccinated,” Bowman said, particularly highlighting individuals who live in more remote areas of the country.

“Secondly, do we absolutely need them? I think it has to be proportional. If we have evidence that they work and if we were to have, God forbid, a fourth wave and we need them to control the outbreak, it could be justified but right now... Canada is doing very, very well and vaccination rates continue to rise. So we're almost trying to fix a problem that we don't fully understand yet.”

Ontario Premier Doug Ford has been quite firm in his stance that the province will not be providing a vaccine certificate for its residents.

“I never believed in proof,” Ford said. “We aren’t doing it.”

“Getting across the border, that’s up to the federal government. We aren’t going to have a split society.”

'Life would be much easier if it could just be mandate'

In terms of domestic proof of vaccination for employment or to allow people to access different businesses and services, Hota believes there is a short-term benefit to mandating vaccination in certain settings to encourage people to get vaccinated, adding that it could be done if all possible steps are taken to allow for access to vaccines.

“My view is sort of shifting a little bit to, well maybe it is worth doing something like that so that everyone feels more comfortable with the decisions in the shorter term, at least about going out and doing things where they're going to be around a lot of people,” she said.

“I can't really say for sure that we've reached all communities...because there are some barriers. If you're working two jobs and you can't miss your shift because you've got to put food on the table, it's not always easy to make an extra appointment and you have other pressures in life.”

In terms of the ethical problems around this type of mandated vaccination, freedom of movement is one of them.

“We really do have freedom of movement and it will interfere with that,” Bowman said. “Secondly, there's an element, it may be nobody's intention, but there's an element of surveillance to this.”

“Sometimes when things get introduced in a pandemic or other difficult situations they never really go away again. So things get put in and then it's only for the pandemic, and then they slowly stay.”

Hota stressed that ultimately, as a healthcare worker and someone who manages exposures and outbreaks of COVID-19, “life would be much easier if it could just be mandated, in certain sectors at least, for people to have the vaccines as a condition of their employment.”

“Part of me feels like, yes, that would be the best way forward and I think it's a way that we could get more smoothly out of this pandemic,” she said. “I do know though that this kind of mandatory vaccination has been approached for many different types of infectious diseases, and it's often contested and there are legal and other reasons why it just can't happen easily.”

“I think people just have to fall back on the understanding that when you get vaccinated you're protecting yourself as the individual and certainly as more people around you get vaccinated, you have a bigger circle of protection around you. But ultimately...you're making the right decision for yourself by going forward and getting vaccinated because of the uncertainties of those around you.”

'I see the consequences of it and I have to manage it'

The Quebec government, for example, has indicated that if cases start to rise again in the fall, the province will implement a digital vaccine passport requirement for people to access non-essential services, including gyms, team sports, bars, restaurants, arts and entertainment, festivals, and stadium events.

Bowman does support the province’s position that they do not have the intention of implementing this vaccine certificate right away, but instead are saying it’s in their “back pocket” if the conditions are right to use it.

He also highlighted that the circumstances around the requirement of proof of vaccination is important. For example, if a university or college requires students to be vaccinated to live in a student residence, an indoor congregate setting, that could be justified. However, if that’s extended to the entire campus, that becomes problematic.

“If we had vaccine passports, they have to be proportional to the problem or the epidemiology of what we're facing at the time, we're not there yet,” Bowman said.

“People are trying to think in advance and you don't want to criticize people for that, that's kind of a smart thing to do but mandating vaccination for an entire campus, I don't think it's justified, and I think it creates divisions... Universities and colleges have to think very carefully, those are moral environments, they have to think about what kind of ethics they're creating within their environments, and I just don't think it's justified at this time at all.”

Hota stressed that this is a unique situation, a public health threat and a pandemic that has "changed the world."

"We shouldn't be viewing it just thinking about previous situations," she said. "In my world, I see the consequences of it and I have to manage it."

"Maybe some people feel like it's not a big deal, COVID is not a big deal, it's never touched me, it's never affected me, but there are big impacts. Over time I think I'm feeling more and more like that would be the only solution, is to mandate it in certain sectors."

What are the legal considerations around mandatory vaccination?

GoodLife Fitness made headlines earlier this month after the company tweeted that it will not be requiring its associates or members to be vaccinated to enter its gym locations.

Following this tweet, some people expressed concerns about their safety after the company publicly stated that it will not be mandating COVID-19 vaccination.

From a legal perspective, Andrew Monkhouse, managing partner at Monkhouse Law Employment Lawyers, explained that in Canada the difficulty is that exemptions for vaccines overlap with Human Right Code issues, like disability or religious exemptions.

“That's where there's a problem, or concern, because if someone falls into those exemptions, then you have to accommodate those people,” Monkhouse explained.

In terms of Goodlife Fitness, for example, Monkhouse said that’s certainly one model that businesses will take, largely under the assumption that a large percentage of people will be vaccinated.

“You could also choose not to call people back who aren't vaccinated or they won't tell you that they're vaccinated,” he added.

“The concern on that is less legal because that is allowed, unless there’s Human Rights grounds, but it’s about the press side of things. If someone goes to the media and says I’m not being recalled because I'm not vaccinated, that can cause a big issue for them.”

Monkhouse said he is also seeing a model where non-vaccinated people are moved to different roles, less forward-facing roles, and are required to take more COVID-19 tests.

“Those types of things are allowed as well, even if the exemption is based on religious or disability grounds, because you're accommodating the person but still working towards safety for others,” he explained.

In terms of people being able to access products or services from a business, establishments could require proof of vaccination but Monkhouse indicated that’s unlikely to happen.

“Technically right now a company could require proof of vaccination just to enter to buy items in the store,...subject to only proof of human rights grounds or disability or medical,” he said. “Practically, we think it's very unlikely that companies will do that because companies don't want to turn away customers and they also don't want to upset their own staff.”

For an employee who may not want to comply with the rules of their employer, Monkhouse said there isn’t a good course of action that results in them being paid.

“If you feel like you're unsafe at work you always have a right to refuse to work,... in Ontario and also across the country, but generally refusal to work because you are concerned that you might get COVID-19 has not been upheld as a valid reason to just stop working, in the absence of something specifically dangerous or in the absence of provincially mandated protections,” he said.