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Access, privacy, enforcement: Lawyers say Canada's plan for digital vaccine passports raises thorny issues

Last Updated Jun 16, 2021 at 10:24 pm PDT

Summary

Minister Dominic Leblanc said Tuesday the federal government was in talks with provinces about a vaccine 'passport'

Immigration lawyer Alex Stojicevic says detailed plans for enforcement, protection of privacy are crucial

VANCOUVER (NEWS 1130) — The prospect of digital vaccine passports being required for Canadians embarking on post-pandemic travel has some raising concerns over privacy, accessibility, and enforcement.

With details about when the Canada-U.S. border will reopen expected in the coming days, Minister of Intergovernmental Affairs Dominic Leblanc said Tuesday the federal government was in talks with provinces and territories about creating some type of “passport” containing proof of vaccination — noting such a thing would likely be digital.

Immigration lawyer Alex Stojicevic says the most obvious concern is that those who don’t have access to the proper tech 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,” he says.

“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.”

The next concern Stojicevic has is around who will be reviewing people’s proof of vaccine. He says people should not 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 what does that mean in terms of ramifications for privacy?”

But he says expecting private companies like airlines to enforce the requirement is also problematic.

“A lot of these enforcement rules at the border, during the pandemic, i’s very important to know that they’ve been really imposed on the airlines,” he explains.

“Is that even fair to private organizations, or a private company?”

Privacy concerns are also being raised by the Canadian Civil Liberties Association.

“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,” says Executive Director Michael Bryant, 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.”

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Stojicevic says there are a number of other thorny logistical issues — including the fact that each province within Canada is approaching immunization in a different way, and sharing different data.

“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 priority 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.”

And he warns whatever Canada creates won’t exist in a vacuum.

“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?”

Stojicevic thinks with clear guidelines, proicesses, and policies to accommodate can be overcome. But he does predict court challenges.

“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 sceptical 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,” he says.

“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.”