Privacy rights likely trumped by need for COVID-19 vaccine passports, B.C. lawyer says

Vancouver -

A B.C. litigation lawyer who specialises in privacy issues says a citizen’s right to privacy will likely be trumped by public health concerns when it comes to vaccine passports and the COVID-19 pandemic.

The comments come after the B.C. government announced proof of vaccination will soon be required for some non-essential businesses.

Kyle Bienvenu is a partner at Hira Rowan LLP in downtown Vancouver and says when it comes to issues of public health, any potential legal challenge citing a citizen’s right to privacy probably won’t get support from the courts.

“There's of course a risk of legal challenge, I would be surprised if there’s not a legal challenge. All we can do is look at what might likely come out of it,” said Bienvenu. “What’s likely to come out of this is, ‘Yeah you might have your rights slightly infringed, but it’s justified in these circumstances.’”

Bienvenu said courts have already set similar precedents in other legal challenges around the pandemic. For example, when the B.C. Supreme Court upheld public health orders banning indoor religious services.

Under the plan announced Monday, some businesses will be required to verify a person’s vaccination status. Bienvenu says it’s unlikely any businesses will keep that information, but if they do, B.C.’s Personal Information Protection Act requires the person collecting the information “to keep that information private.”

In May, the Office of the Information and Privacy Commissioner for B.C. co-published a statement on vaccine passports, and said that if they are implemented, their necessity and effectiveness must be closely monitored.

“While this may offer substantial public benefit, it is an encroachment on civil liberties that should be taken only after careful consideration,” reads the statement.

“Vaccine passports must be decommissioned if, at any time, it is determined that they are not a necessary, effective or proportionate response to address their public health purposes,” it continues.

 

B.C. Premier John Horgan said on Monday during the announcement that he has been in touch with the B.C. privacy commissioner about the passports, to make sure the passports provide “one specific purpose.”

“It’s not about health details other than whether or not you’ve been immunized,” he said.

However, some business owners are concerned about enforcement of the new rules.

Carl McCreath, president of restaurant operations for Steamworks Brewing Company, said he is fully in support of the move but is “cautiously optimistic.”

“We’re obviously very nervous about how it’s going to work, people coming in the restaurant, how the app works, who’s allowed, who’s not allowed, how it’s enforced, there’s definitely a lot of questions,” McCreath said. “One of my big concerns is for the staff having to enforce this. So we gotta make sure the communication is strong, it’s easy for customers to understand and it’s a very smooth process.”

That concern is echoed by the BC Chamber of Commerce. In a statement the group said it was also in support of the move, but added, “Burdening businesses and frontline employees with enforcement of public health related initiatives is not appropriate and must be handled in an informed way and with all stakeholders in mind. We are here to provide insight from business, and we invite government to work with us on these details to ensure a fair program is achieved.”

When it comes to any legal ramifications for businesses, for example, if a customer is denied entry and files a complaint, Bienvenu said it’s likely there will be protections for the business.

“I suspect there's going to be some element of WorkSafe in there, there’s going to be workplace health and safety requirements so there might be protections for workplaces to be shielded within the regulation itself,” he said.

Opinion polls from IPSOS show that the majority of Canadians support vaccine passports for a variety of indoor and outdoor activities. For example, 74 per cent strongly support mandatory vaccination for visiting a senior’s centre, and 67 per cent strongly support vaccine requirements for attending an indoor event such as a concert or museum. The poll, conducted among 1,001 Canadians, is a representative sample and is accurate to within ± 3.5 percentage points, 19 times out of 20, had all Canadians aged 18 and older been polled.