September 8th, 2021
Beginning September 22, 2021, Ontario will require residents to show proof of their vaccination status in order to access certain businesses and other public settings. The stated goal of this mandate is to encourage Ontarians to get their vaccines, protect the hospitals’ capacity and allow businesses to safely remain open.
Ontarians will need to be fully vaccinated (two doses plus 14 days) and provide proof of their vaccination status along with a photo ID in order to access certain public facilities. Examples include restaurants and bars, nightclubs, banquet halls, convention centres, recreational facilities, sporting events, casinos and theatres.
Certain venues will be exempt from the vaccine requirement, such as outdoor patios (excluding outdoor nightclub spaces), which are classified as “lower risk”. Other exemptions include spaces that provide medical care, food from grocery stores and stores that provide medical supplies. Individuals who cannot receive the vaccination due to a medical condition and children 11 years of age and younger will also be exempt from these requirements.
Prior to Ontario’s announcement, various organizations have commented on the privacy, equity and human rights concerns of proposed vaccine passports. For example, the American Civil Liberties Union (“ACLU”) and the Office of the Privacy Commissioner of Canada (“OPC”) have both commented on the appropriate considerations to ensure access to justice and privacy protection while still meeting the important public health goals vaccine mandates are intended to address.
Regarding both equity and privacy concerns, the ACLU has provided a few guidelines. First, the vaccine passport should not be exclusively nor even primarily digital. Rather, the program should be paper-based with a digital option. Despite their proliferation, there are still many people who do not have smartphones and, as a result, cannot access a digital passport. A lot of these individuals are from vulnerable or low-income communities, are over age 65, or are homeless, and having a solely digital passport would exclude them. Second, the passport system should be transparent and user friendly. It should be decentralized and allow individuals to take control of their credentials. Lastly, a digital passport should not allow for the application to track data and sell it to third parties. Fear of tracking can be a non-starter for some racialized communities, particularly immigrant communities, which would further impede access to equal opportunities.
With respect to privacy, the Federal, Provincial and Territorial Privacy Commissioners released a joint statement commenting on the ways in which a vaccine passport system can appropriately address privacy concerns. While the joint statement acknowledges that vaccine passports are being implemented as a way to return to a “normal life”, it also confirms that the passports must be implemented in compliance with privacy laws. Moreover, privacy best practices should be followed in order to ensure the greatest level of privacy protection. As a result, vaccine passports must be necessary, effective in achieving their goal, and the privacy risk must be proportional to the public health purposes they are intended to address. In the event these criteria are no longer met, the passports ought to be decommissioned.
While the details of the proposed Ontario vaccine certificate or passport system are not yet known, currently individuals can download a PDF form of their vaccine receipt from a provincial website. This can be printed or stored on a smartphone and presented as proof of vaccination. However, there is no option currently for individuals who do not have a smartphone or computer to access their receipt, although it is stated that an alternative for people with no email, health card or ID is forthcoming. This is noteworthy since during the period September 22 to October 22, 2021, individuals are required to produce their receipt as well as their driver’s license or health card. This is obviously problematic for individuals who do not have such identification.
In the event the government provides an alternative for individuals without internet access to request a mailed receipt, it is unclear whether an option will also be available for those with no permanent address. Further, individuals who are unable to be vaccinated for medical reasons will be required to present a doctor’s note until the medical exemption is integrated into the digital vaccine certificate. This raises questions for those who are medically exempt but do not have a smartphone.
While the initial approach includes the ability to use a paper receipt, Ontario has stated that as of October 22, an enhanced vaccine certificate will be available in a new digital format that “will offer increased accessibility and privacy protection”. Whether this is accurate remains to be seen. When considering the digital certificate, users will want to know who developed it and who hosts it, whether the data is decentralized and, importantly, whether it is tracking and storing data. While it is stated that the app will contain a unique QR code that allows businesses to easily scan and confirm vaccine status, it is unknown whether the business will also be collecting personal information as a result. It is also unknown whether the “enhanced vaccine certificate” will be available as a hard copy for those who cannot or prefer not to use the digital app.
While we do not know what the Ontario passport will look like in practice, it is clear that there are equality and privacy considerations that will have to be carefully considered and monitored as the provincial program is rolled out. Failure to do so could alienate or exclude certain communities from public spaces or violate Canadian privacy laws, both of which could have the consequence of impeding the intended goals of the vaccine certificate.