Page - 256 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE256 health), although these latter rights, while recognized in many coun- tries, are not recognized as free-standing rights under the Canadian Charter.18 Charter Proportionality Explained Charter law, and civil liberties generally, have a different centre of gravity than public health law—their primary commitment is to secure protected rights and freedoms of individuals against incur- sions by the state. There is a popular misconception that rights are trumps against government action—that once a rights infringement has been identified, the offending government action must cease, though the heavens may fall. With some possible exceptions,19 this is not how rights operate in Canada. Indeed, the possibility of limita- tions on individual rights is made explicit in section 1 of the Charter,20 which clarifies that the enumerated rights and freedoms are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” What Charter rights pro- vide, then, is not some fixed and all-purpose licence to do x, y, and z. What the Charter guarantees, first and foremost, is a requirement of demonstrable justification of government interference with enumer- ated rights (and the remediation of unjustifiable government actions). The culture of justification mandated by the Charter manifests itself at various levels. The requirement that government actions infringing rights be “prescribed by law” is a safeguard against arbitrariness,21 ensures that rules are communicated to the public, and offers initial assurance that some legislative debate has taken place. Of course, with the use of emergency powers invoked by all provinces, the executive may issue orders profoundly impinging upon civil lib- erties without the sunlight of parliament scrutiny. In response to these incursions, in theory individuals have recourse to the courts, to press the case that some government action 18. For further discussion see Martha Jackman, this volume, Chapter D-3. 19. As an example, some have argued that the right to be free from torture is abso- lute, though this is debatable and arguably belied by the Supreme Court of Canada’s jurisprudence. 20. There are also similar limitations within s 7 itself: any deprivation of “life, lib- erty, or security” must not occur except in accordance with the “principles of fundamental justice.” This has been interpreted to include, among other things, that the law cannot be “arbitrary” or “over-broad.” 21. R v Therens, [1985] 1 SCR 613, 18 DLR (4th) 655.