Page - 249 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

CHAPTER C-1 Civil Liberties vs. Public Health Colleen M. Flood,* Bryan Thomas,** and Dr. Kumanan Wilson*** Abstract The COVID-19 pandemic highlights the challenges governments face in balancing civil liberties against the exigencies of public health, amid the chaos of a public health emergency. A key question concerns the evidentiary standards for justifying interferences with civil liberties. Superficially, civil liberties law and public health appear to invoke opposite evidentiary standards: under the principle of proportional- ity, civil libertarians demand strong evidence of the necessity of inter- ference with civil liberties, while public health officials, invoking the precautionary principle, urge that intrusive measures be taken—limits on social gatherings, for example—even without conclusive evidence of their necessity. In this chapter, we argue that the two principles are not so oppositional in practice. In testing for proportionality, courts recognize the need to defer to governments on complex policy mat- ters, especially where the interests of vulnerable populations are at stake. For their part, public health experts have incorporated ideas of * University Research Chair and Director of the Centre for Health Law, Policy & Ethics, University of Ottawa. ** Senior Research Associate and Adjunct Professor, Centre for Health Law, Policy & Ethics, University of Ottawa. *** Physician Scientist, The Ottawa Hospital, Professor of Medicine, University of Ottawa, and member of the University of Ottawa Centre for Health Law, Policy and Ethics.