Vaccine Passport Unconstitutional, Say Ontario Residents Launching Appeal

A person draws out Moderna vaccine during a drive through COVID-19 vaccine clinic at St. Lawrence College in Kingston, Ontario, on Jan. 2, 2022. (The Canadian Press/Lars Hagberg)

Lawyers representing several Ontario residents have filed an appeal claiming the province’s vaccine passport system was unconstitutional. The appellants are challenging a December decision by the Ontario Superior Court that upheld the legality of the passport system.

The appellants say they did not get vaccinated due to religious beliefs or concerns about adverse effects. The passport system in place from September 2021 to March 2022 required patrons to show proof of vaccination before entering gyms, restaurants, and other venues.

The appellants say these restrictions caused them suffering—emotionally, mentally, and in some cases physically.

Linda McDonough is one of them, and she was unable to undergo warm-water therapy at a local pool for her Chronic Regional Pain Syndrome (CRPS), according to a March 23 release by the Justice Centre for Constitutional Freedoms (JCCF).

Another appellant represented by JCCF is nurse Sarah Harjee. She was pregnant during the passport mandate. Harjee was concerned about adverse effects on herself and her unborn child and wanted to wait until more data and studies were available.

She says she suffered “mental distress, anger, and anxiety, due to social isolation,” because of the passport system, according to court documents. She was also unable to enroll her toddler in normal activities, such as skating and swimming.

December Decision

In December 2022, an Ontario Superior Court found the passport did not violate Charter rights. Part of that decision says the passport “did not require the Applicants to undergo any form of medical procedure, and they remained at all times in control of their bodily integrity, free from state interference, as a result of their choice to remain unvaccinated.”

It said the restricted access to restaurants and entertainment venues cannot constitute interference with access to medical treatment.

It said there is no evidence the emotional and psychological harm reached the high threshold needed to engage Charter rights. A person’s right to security does not protect one from “the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action,” it said.

The decision compared the passport to having to show proof of age to enter a bar.

‘Diverse Needs and Rights’

JCCF has argued against the justifications for the mandate. JCCF says, for example, that it was unfair to blame the unvaccinated for burdening an already fragile health care system.

It says the criteria for exemptions were too narrow. Two of its clients had a history of blood clots and other medical conditions but could not get exemptions.

One of its clients, Sam Sabourin, is an Ottawa gym owner who did not want to turn clients away based on vaccination status. Business owners could face fines of up to $100,000 or a year in jail for not enforcing the mandate.

“It was implemented without scientific justification, without a proper legal framework and without taking into consideration the diverse needs and rights of the population,“ said Jorge Pineda, counsel for the Applicants, in the March 23 release. ”We will be asking the Court of Appeal to recognize this reality, and to uphold the rights of individuals to be free from government overreach, even in times of fear and panic.”

Ontario Premier Doug Ford issued a statement ahead of the mandate that said: “Requiring proof of vaccination in these settings reduces risk and is an important step to encourage every last eligible Ontarian to get their shot, which is critical to protecting the province’s hospital capacity, while also supporting businesses with the tools they need to keep customers safe, stay open, and minimize disruptions.”

Ford said the decision was based on the advice of the chief medical officer of health and “based on the latest evidence.”