Page - 252 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE252 two overarching principles in evaluating these apparent trade-offs: the principle of proportionality, central to Canadian Charter jurispru- dence; and the precautionary principle, used in public health. As traditionally conceived, the discourses of civil rights and public health rest on opposite assumptions about the burden of proof. In the discourse of civil and political rights—of the sort guaranteed under the Canadian Charter  of  Rights  and  Freedoms8—the onus rests primarily on government to show a “pressing and substantial” objec- tive for interfering with protected rights and freedoms; moreover, governments are obliged to use rational, minimally intrusive, and proportionate means of achieving that objective. By contrast, public health discourse centres on the precautionary principle which holds that action should be taken—even actions that impact civil rights—to mitigate potentially catastrophic risks, even in the absence of com- plete evidence of the benefits of the intervention or of the nature of the risk. Dr. Anthony Fauci, Director of the U.S. National Institute of Allergy and Infectious Diseases, captures the precautionary principle with his now-famous maxim, “If it looks like you’re overreacting, you’re probably doing the right thing.”9 In non-emergency policy-making scenarios, where govern- ments have time to gather social science evidence before enacting and enforcing laws, it is often possible to reconcile this conflict between civil liberties and public health. In a fast-moving pandemic, govern- ments are forced to make urgent policy maneuvers that impact civil liberties in a vortex of uncertainty, without the luxury of prolonged deliberation; often, actions are taken on the basis of executive orders, pursuant to emergency legislation, even without legislative debate.10 In such situations, decision makers may be forced to lean more heavily on first principles—whether employing restrictive measures that may ultimately prove unnecessary, overreaching in deference to the pre- cautionary principle, or hesitating to act in deference to civil liberties. 8. Canadian  Charter  of  Rights  and  Freedoms,  Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982  (UK), 1982, c 11. 9. Interview of Dr. Anthony Fauci (15 March 2020) on Face the Nation, CBS News, Chicago, online (video): CBS News <www.cbsnews.com/news/transcript-dr- anthony-fauci-discusses-coronavirus-on-face-the-nation-march-15-2020/>. 10. For a discussion of the near-complete absence of deliberation to date, see Vanessa MacDonnell, this volume, Chapter B-1. See also Craig Forcese, “Repository of Canadian COVID-19 Emergency Orders” (last visited 13 May 2020), online (blog): Intrepid <www.intrepidpodcast.com/blog/2020/3/19/ repository-of-canadian-covid-19-emergency-orders>.