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“suspended declarations of invalidity”—a remedy where a govern-
ment action is deemed invalid, but is allowed to remain operative for
month or even years as the government develops alternative plans.
Assuming that some legal challenge to COVID-19 responses had trac-
tion in the courts, it is possible that the pandemic may have run its
course and that the infringing measures are lifted voluntarily before
any court order vindicating civil rights comes into effect.
On the other hand, as time passes and evidence gathers on effec-
tive responses, courts may become more demanding. Take, for exam-
ple, excluding family members from seeing their dying relatives—a
heartbreaking scenario where a loved one is left to die alone, poten-
tially engaging the Charter’s s 7 right to liberty and security of the
person. As we reset to a new normal where we mitigate risks as best
as possible, courts may demand of governments that their precaution-
ary measures evolve with changing evidence to better protect such
fundamental rights.
We believe that there is an opportunity to reconcile these con-
flicts, as there are many parallels between the Oakes test and the EU
guidance on the precautionary principle. Ultimately, an agile policy
is needed, one that recognizes the changing level of scientific uncer-
tainty and the changing balance between civil liberties and precaution-
ary measures. In fact, the importance of civil liberties can encourage
the timely revisiting of precautionary measures—something that has
been a challenge in its application to public health. Conversely, the
inclusion of the public health perspective can be a corrective against
extremist interpretations of rights and freedoms—scenarios where
individuals “die with their rights on.” As such, ultimately a dynamic
policy approach would be consistent with both the Charter and the
appropriate application of precaution, and the two would work
together to both protect the public’s health and ensure protection of
an individual’s rights and freedoms.
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