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Ideally, when governments develop legislation, they invest
considerable time in anticipating potential effects on Charter rights,
ensuring there is some evidence available to answer a court challenge.
This is a luxury that may be unavailable as governments confront an
unprecedented pandemic.
Often, when governments fail at the Oakes test, it is at the min-
imal impairment stage: courts will point to some less intrusive policy
alternative as evidence that government has overstepped its powers.
Rare is the case where merely contemplating policy alternatives in the
abstract will suggest less-impairing alternatives—particularly when
it comes to complex, polycentric questions such as choices involving
public health measures or the design features of complex health sys-
tems. Thus, the courts will at times look at measures taken in other
jurisdictions—whether other provinces or other countries—to assess
whether the government action is truly minimally impairing.25
It would be a mistake to suppose that the courts apply uniform
evidentiary standards to all s 1 analysis. In some (but by no means all)
cases, the courts impose a heavier burden of proof on government,
at the s 1 stage, such as in criminal law matters—an area where the
court feels most confident in its institutional competence, and where
the state is the “singular antagonist” of the claimant’s rights. By con-
trast, the courts can be more deferential to government in Charter
cases that involve complex, polycentric trade-offs between multiple
individuals26—particularly vulnerable individuals (for example, low-
skilled workers,27 children28). This reflects, first, a recognition that
courts lack institutional competence over polycentric questions, and,
second, that laws protecting vulnerable people should be shown spe-
cial deference lest the Charter “simply become an instrument of bet-
ter situated individuals to roll back legislation which has as its object
the improvement of the condition of less advantaged persons.”29 The
25. Chaoulli vÂ
Quebec (Attorney General), 2005 SCC 35 [Chaoulli].
26. Christopher P Manfredi & Antonia Maioni, “Judicializing Health Policy:
Unexpected Lessons and an Inconvenient Truth” in James B Kelly & Christopher
P Manfredi, eds, Contested Constitutionalism: Reflections on the Canadian Charter ofÂ
Rights and Freedoms (Vancouver: University of British Columbia Press, 2010) at
129; Kent Roach, “The Challenges of Crafting Remedies for Violations of Socio-
economic Rights” in Malcolm Langford, ed, SocialÂ
Rights Jurisprudence: EmergingÂ
Trends in International and Comparative Law (Cambridge, UK: Cambridge
University Press, 2008) at 46.
27. R v Edwards Books and Art Ltd, [1986] 2 SCR 713, 35 DLR (4th) 1 [Edwards Books].
28. Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927, 58 DLR (4th) 577.
29. Edwards Books, supra note 27.
VULNERABLE
The Law, Policy and Ethics of COVID-19
- Title
- VULNERABLE
- Subtitle
- The Law, Policy and Ethics of COVID-19
- Authors
- Vanessa MacDonnell
- Jane Philpott
- Sophie Thériault
- Sridhar Venkatapuram
- Publisher
- Ottawa Press
- Date
- 2020
- Language
- English
- License
- CC BY-NC-ND 4.0
- ISBN
- 9780776636429
- Size
- 15.2 x 22.8 cm
- Pages
- 648
- Categories
- Coronavirus
- International