HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Saturday, February 4, 2023

Vaccine Passports and the Charter: Do they Actually Infringe Rights?

Colton Fehr (Thompson Rivers University), Vaccine Passports and the Charter: Do they Actually Infringe Rights?, 43 Nat’l J. Const. L. 95 (2022):

Although most Canadians consented to receiving the COVID-19 Vaccine, many others still refuse or remain hesitant despite medical consensus that the vaccine works. To encourage these people to receive the vaccine, many provincial governments have instituted a vaccine passport system. This system excludes people from attending a variety of public places considered unnecessary to meet basic needs. The people opposed to receiving the vaccine maintain that a vaccine passport system violates their constitutional rights. They are correct in a sense as this system may ‘cause’ physical harm to a narrow subset of people contrary to these laws likely objective of protecting public health. This would render the vaccine passport system overbroad. As with other recent jurisprudence, however, I contend that such breaches of the overbreadth principle are clearly justifiable under section 1 of the Charter. The fact that vaccine passports and other clearly prudent laws violate ‘fundamental justice’ requires a rethink of whether the Supreme Court’s recent reconceptualization of the overbreadth principle ought to be preserved.

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