What's the end game?

Faced with an emergency, governments are inclined to fast-track legislation with little scrutiny, often with little regard for their temporary nature.

We saw it happen 20 years ago, in the wake of 9/11. Then, countries around the Western world rushed to adopt measures designed to combat terrorism and make people feel safe. Undoubtedly, some of them enhanced national security, but others — many still on the book — had little practical effect other than to limit civil liberties.

Today the emergency is the pandemic health crisis. And though lockdowns were temporary, we are now at a point where, according to a new McGill-led study, over half of the world's countries have some form of national mandatory vaccination policy, albeit with significantly varying types of penalties. In Canada, every province has adopted some form of certificate mandate requiring proof of vaccination to enter certain establishments or engage in certain activities.

Not unlike two decades during the early days of the War on Terror, civil liberties advocates are asking how and when we will wind down these kinds of mandates.

In truth, we are experiencing entirely different sets of reactions to the emergency, says Cara Faith Zwibel, director of the fundamental freedoms program at the Canadian Civil Liberties Association. "A lot of this depends on people's perspective and perception of the nature of the threat and the nature of the risk," she says. "And there's a pretty broad spectrum of how people perceive that risk."

"The measures and the approach we have taken has led some people to get to a place where it might be very hard for them to get out of," she explains. "They are very scared of being with people, and that may not go away for a long time."

Colleen Flood, the University of Ottawa Research Chair in Health Law and Policy, says imposing a vaccine certification system raises different concerns than forcing people to take their shoes off at the airport. "The [Section 1] Charter justification for [the health crisis] will wane with the changing circumstances of the pandemic," she says. That time may come when we recognize that the pandemic is, in fact, endemic. "We have an in-built protection in the Charter, so people could launch a challenge if there's no further use for it down the track."

Most governments realize that vaccine certificates are something that most people don't want, Flood adds. And it affects more than just people who go to the airport.

Zwibel also notes we have shifted the goal-posts throughout the pandemic on what we are trying to prevent and achieve with rules and restrictions.

"At the outset, the focus was on the possibility of overwhelming the public health system, and it seems like now we've gotten away from that and are more concerned with trying to ensure that no one gets COVID, which I think is not realistic," says Zwibel. "To a certain extent, the shifting makes sense as our knowledge of the virus and how it works has changed, and the virus itself has changed."

Still, we need to push governments to be transparent and specific about what they are trying to accomplish and when they plan on lifting some of those measures. "Many people have been more than willing to accept many of these things because they are anxious to avoid further lockdowns and to get back to some sort of normal, says Zwibel. "But we need to keep reminding people that it's not normal to go to a restaurant with your identification and proof of vaccination."

 "It's fine if we're willing to accept that because of the current situation, but people do need to be aware that normalizing this kind of thing can lead us down all kinds of roads that I really don't think we want to be going down."

Governments could be better by outlining the limits of these measures. They should come with sunset clauses, as the French planned, so that they expire come November unless otherwise necessary. "In Israel, when they had their Green Pass, and once they thought they had got clear of the need for it, they got rid of it," says Flood. "They had to bring it back because of Delta."

Because privacy and human rights commissioners are paying close attention to these measures, Flood doesn't expect the same lingering effect post-9/11.

"I agree that it's something that you have to be worried about, and the bigger issues that we have to deal with on the longer timeframe are things like the misinformation pandemic and people going down their rabbit-holes of information," says Flood. "This is leading to such divisions within society and polarization, and the vax-pass is just one part of it."

One possible concern is that the private sector will insist on knowing employees' vaccination status – sometimes warranted, sometimes not – but it's something that bears monitoring.

"How much information and requirements are employers putting on their employees?" Flood wonders. "Knowing the vaccination status of long-term care employees is a good thing because the flu also kills bucket loads of people regularly, and we've just ignored that. But there might be circumstances where it's just a step too far in some industries. There are legal checks on this that can kick in if employers are going too far, but it's more localized, so there isn't the same level of scrutiny on individual private action as there is on government action."

The justification for employee-level mandates is very context-specific. According to Flood, what may be justified now may not be justified in six months in a particular employment context. On the other hand, measures may be embedded by then, which might require employees or unions to try and overturn it.

Zwibel is also concerned by how few people believe these limitations are a problem. "Civil liberties are kind of a punchline," she says. "It's not a big deal – you show your certificate, and who cares? I understand that it's not a huge inconvenience, but it is a radical shift in the way we do things, and it's one thing to accept it as temporary, but it's another to accept it as the new normal. It's similar to 9/11 in that people are thinking that these are things to deal with an imminent threat and not appreciating that these could become part of our society."

Once the infrastructure to show vaccine certificates is in place, who's to say there won't be the temptation to use it for other purposes? Zwibel worries people are not thinking about that enough. "I want to know at what point [this virus] ceases to be exceptional, and at what point we accept that this is another risk that we have to bear and manage in our lives, and that we have to take some responsibility for managing it ourselves, and we probably don't want the government to be responsible for really regulating every aspect of our lives," she says.

"Individual liberty is important, and it's important to recognize that people will make different choices, and they won't all be the choices that we want them to make, or that the government wants them to make, but that's the price of living in a democracy."