Could COVID-19 Vaccine Passports save live music? The concept is that a proof-of-vaccine card (or app) could allow people to rejoin aspects of normal, congregating society. That means that concerts could be attended by groups of people who are vaccinated (and presumably put on by bands and hosted by staff who are also vaccinated). Or perhaps, only a certain number of non-vaccinated people could be allowed in a room.
[Vaccine cards are] 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 pandemicOntario Minister of Health, Christine Elliot, Dec 8, 2020
In Ontario, everyone who wants a COVID-19 vaccine should have one by the fall. But Phase 2 of the Ontario vaccination program, beginning in March, could see as many as 8.5m people vaccinated. The Pfizer and Moderna vaccines appear to protect vaccinated individuals against serious illness.
So as of summer 2021, we could have a very significant portion of the population of Ontario that has protection against becoming seriously ill with COVID-19. And that could mean a lot of people who can attend live music events too.
Is it legal to require proof of vaccination?
As a lawyer, I can confidently say the answer is maybe. Possibly even probably!
Annoying lawyer jokes aside, a few points here – first, when it comes to fundamental freedoms, there is a big difference between requiring proof of vaccination in order to attend a concert, and forcing people to be vaccinated. Schools, for example, require proof of vaccination. So the idea of a vaccine passport isn’t really that extreme. It’s just new.
Second, many of our rights, including Charter rights, have already been restricted during the COVID-19 pandemic. We are not free to associate as we please. Freedom of religion is being curtailed when places of worship face restrictions. Freedom of expression is being curtailed when concerts are forced to be cancelled. People unable to wear masks (or unwilling, but those are two very different categories) face even greater infringement of their Charter rights. There are legitimate debates to be had about current government restrictions and the Charter.
When a Charter right is infringed by government action, Section 1 of the Charter can allow the infringement if a) there is a pressing and substantial purpose (e.g. fighting COVID-19), b) there is a rational connection between the infringement and the objective (e.g. vaccine passports would prevent spread of COVID-19), c) there is minimal impairment of the right (this is often the toughest part of the test – but the argument here might be that a vaccine passport is less of an infringement than an outright ban on concerts), and d) there is proportionality between the effects of the infringement and the objective (e.g. people’s rights are infringed, but it is balanced by the lives saved).
Third, Charter rights and freedoms apply to government action. There would be a difference between a government-imposed vaccine passport program, and a private business initiative. Private businesses can often deny service or entry to people, provided they do not violate anti-discrimination and other laws. There are many circumstances where businesses demand private information about you, such as proof of address, identification or age, before providing you with service. In the early days of the pandemic here in Toronto, Longo’s grocery stores required masks for entry, before that was a government mandate. Proof of vaccination is not necessarily a stretch.
On the other hand, if availability of vaccines becomes a major problem/issue (beyond the current predictable scarcity), and if there is any substantive unfairness in the manner in which they are made available, then I could certainly see various legal challenges to vaccine passports being possible. For example, if people who medically can’t be vaccinated are unfairly excluded from participation in society, that could become an issue.
While it may seem unfair that some of us could attend concerts while others could not, the truth is it could mean the difference between the live music industry surviving or withering. More venues are closing every month. I think a lot would depend on the implementation, and particularly its fairness. And the idea is understandably controversial (even WHO isn’t always supportive of vaccine passports). But I’d certainly be tempted to consider ideas that could ultimately save our music venues.