Ontario Superior Court Upholds Vaccine Passport, Appeal Expected

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)

An Ontario Superior Court of Justice ruling on Dec. 13 held that vaccine passports were constitutional. The Justice Centre for Constitutional Freedoms (JCCF) said it is considering an appeal.

JCCF represented eight clients who argued their Charter freedoms were violated by vaccine passports. One of the clients was Sarah Lamb, who experienced long-term neurological side effects after the first dose of the Pfizer vaccine, said JCCF in a release following the ruling. She lost sensation from her waist down, but was denied a vaccine exemption.

“All Ontarians should be free to enjoy the rights that our democracy has to offer. However, the exemptions to the vaccine passport regime were incredibly limited and unfairly narrow, and none of the Applicants were eligible for an exemption under the vaccine passport regime,” said Jorge Pineda, one of the lawyers for the applicants, in the release.

Exemptions were limited to those who are verifiably allergic to vaccine ingredients or who developed the heart conditions of myocarditis or pericarditis after their first dose.

On Sept. 21, 2021, Ontario made it mandatory to show proof of two vaccine doses for entrance into movie theaters, restaurants, gyms, concert halls, and other public venues. Business owners could face fines of up to $100,000 or a year in jail for not enforcing the mandate. The restrictions were lifted in March.

Excluding people from everyday societal activities was a violation of their Charter freedoms, JCCF argued. The passport system also violated their rights to free and informed consent to a medical procedure or intervention, JCCF said.

The court heard the case brought by JCCF’s clients on Nov. 21 and 22, and announced Dec. 2 it would defer its decision to a later date. After the ruling on Dec. 13, JCCF attorney Pineda said, “We are carefully reviewing the decision, and discussing appeal options with our clients.”

‘Protecting the Province’s Hospital Capacity’

Ahead of the vaccine passport mandate, Ontario Premier Doug Ford issued a statement 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.”

JCCF responded to this in an Oct. 18, 2021 statement: “The government does not dispute that vaccinated people spread viruses. Further, vaccine manufacturers have only promised that those receiving the new mRNA vaccines will suffer less severe symptoms; no promise was made that vaccines stop the spread.”

In November, JCCF attorney Sayeh Hassan said in a release, “It’s unfair to say, as the province argues, that the unvaccinated added to the burden on an already fragile health care system, because problems in the ER and wait times for surgeries existed before the pandemic in Ontario.”

JCCF has argued that rapid tests could have been offered at the door to facilities as an alternative for the unvaccinated.

Another of JCCF’s clients is nurse Sarah Harjee. She was pregnant during the passport mandate and was concerned about adverse effects on herself and her unborn child and wanted to wait until more data and studies were available. The vaccines are still undergoing clinical trials, due to finish in 2023.

Another is Sam Sabourin, the owner of an Ottawa gym. “Mr. Sabourin finds it unconscionable to exclude customers from his gym based on their vaccination or medical status,” the lawsuit said. “The vaccine passport wrongfully compels Mr. Sabourin to discriminate against his customers and clients based on their vaccination status contrary his freedom to act in accordance with his conscience as guaranteed under sections 2(a) of the Charter.”

Two other clients had a history of blood clots and other medical conditions. Other clients held spiritual beliefs that made them hesitant to get the vaccine. There was no possibility of religious exemption.