By Paul Banwatt
COLUMNS Can COVID-19 Vaccination Passports Save Live Music ?
Want to get into the Arkells concert ?
Show your tickets and vaccination passport at the entrance .
A vaccination passport could allow concerts to be attended by groups of people who are vaccinated ( and played by artists and hosted by staff who are also vaccinated ). Recently , the concept has been described by Prime Minister Justin Trudeau as “ divisive .” But it ’ s easy to see why the Ontario government was initially bullish about the idea :
[ 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 pandemic . - Ontario Minister of Health , Christine Elliott , Dec . 8 , 2020
For some , the vaccination passport concept raises hopes of a return to normality . For others , it is an unacceptable , and some argue unlawful , infringement on personal freedom . The stakes are high enough that it ’ s worth the debate . Could a proof-of-vaccine card ( or app ) allow people to rejoin aspects of normal , congregating society ?
The live music industry in Canada is in crisis . There is no take-out or online substitute for music venues , and over 90 % of them are at risk of closure . Artists , venue owners , staff , and crew are struggling , to say nothing of concertgoers .
In Ontario , everyone who wants a COVID-19 vaccine should have one by the fall . But phase two of the Ontario vaccination program , beginning in March , could see as many as 8.5 million people vaccinated . The Pfizer and Moderna vaccines appear to protect vaccinated individuals against serious illness .
As of this summer , we could have a very significant portion of the population that has protection against becoming seriously ill with COVID-19 . Leaving aside the question of whether new variants will make our vaccines ineffective , it could mean millions of people who can , perhaps , attend live music events too .
Is it legal to require proof of vaccination ? First , let ’ s draw a distinction . There is a big difference between requiring proof of vaccination in order to attend a concert , and forcing people to be vaccinated . The former could be a business exercising its right to serve and deny customers as it pleases , within certain limits such as human rights and anti-discrimination law . For example , Longo ’ s grocery stores required masks for entry , before mask-wearing was a government mandate . On the other hand , forcing people to be vaccinated or even creating a general vaccination passport requirement would require government action , and would be subject to the Charter of Rights and Freedoms .
Private businesses , including music venues , must operate in accordance with human rights and anti-discrimination legislation in each province . The Ontario Human Rights Code , for example , states that every person has a right to equal treatment with respect to goods , services , and facilities , without discrimination on a list of enumerated grounds , including race , sex , sexual orientation , gender identity , and disability . A person challenging a vaccination passport requirement might need to demonstrate how they fall within the protections of the Code .
By contrast , the Charter applies to government action , and adds a non-exhaustive and more flexible list of grounds of discrimination , as well as other rights , such as freedoms of expression and association . Section 8 of the Charter protects us against unreasonable search and seizure , creating a powerful privacy right that applies to government action . That doesn ’ t mean that government can ’ t create proof of vaccination requirements that apply to businesses . But constitutional limits apply to government action . For example , many schools require proof of vaccination , but allow for medical and religious exceptions .
Many of our Charter rights have already been restricted by governments during the COVID-19 pandemic . We are not free to associate as we please . Freedom of religion is being infringed when places of worship face restrictions on gatherings . Freedom of expression is being infringed when concerts are forced to be cancelled . People unable to wear masks ( or unwilling , but those are two very different categories ) can face even more infringements of their Charter rights if they can ’ t participate equally in society .
When a Charter right is infringed by government action , Section 1 of the Charter can allow the infringement if there is a pressing and substantial objective ( e . g . fighting COVID-19 ). If there is , then the infringement can be allowed if : a ) there is a rational connection between the infringement and the objective ( e . g . vaccination passports would prevent spread of COVID-19 ); b ) there is minimal impairment of the right ( this is often the toughest part of the test – but the argument here might be that a vaccination passport is less of an infringement of rights than an outright ban on concerts ); and c ) 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 and other rights , like expression and religion , that are saved ).
There is also a difference between requiring proof of vaccination to attend a concert , and requiring proof of vaccination to be employed . Employment law includes various rights for employees , including reasonable expectations of privacy , that don ’ t necessarily exist for concertgoers . Consider , for example , the increasingly invasive bag searches that occur on the way into a stadium .
Should we do it ? Any attempt to implement a vaccination passport regime , whether by government or private businesses , is likely to be met by legal challenges . If the availability of vaccines remains a problem , and / or if there is any substantive unfairness in the manner in which they are made available , then various additional legal challenges to vaccination passports could arise .
But 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 continuing to wither .
Ultimately , the question of whether such a requirement is lawful depends on the implementation . But in order to save live music , it ’ s worth considering .
Paul Banwatt is a partner at Gilbert ’ s LLP , drummer for The Rural Alberta Advantage , and author of the Canadian music law blog The Music Lawyer . www . themusiclawyer . ca .
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