This column originally appeared in the March/April 2021 issue of Canadian Musician magazine.
By Paul Banwatt
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.