Page - 284 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE284 There are intimations of this approach around the world even in this early phase of deconfinement. For example, municipal authorities in Vilnius, Lithuania, have allowed bars and restaurants to spill out into urban spaces like parks and squares so residents can dine while distancing, in an outdoor context less likely to facilitate the spread of the virus.12 The mayor of Montréal recently announced an ambitious plan to deliver 1,200 kilometres of roads to pedestrians and cyclists to make it easier for them to physically distance. We believe that mak- ing both our indoor and our outdoor spaces as compatible as possible with the imperative of limiting virus spread should be a policy ave- nue of choice for egalitarians. Such avenues target community-based rather than individual-based solutions and thus represent a lesser infringement on the value of equality than do immunity licences in a post-confinement society. Naturally, certain settings do not lend themselves to such inequal- ity-mitigating measures. Obvious examples are health care settings, where providers must come into close contact with possibly infected patients, and hairdressing salons. A selective use of immunity licences for those who work in such sectors would be ethically appropriate, because in this case the presumption in favour of equality would be defeated by the unavailability of equality-preserving measures. Conclusion Even if science were to advance to a point where immunity licences might be viewed as reliable indicators of immunity, and even if we were able to put a regulatory framework in place that would avoid morally problematic results, there would still be reasons to oppose them in most settings. Specifically, they violate the “least infringe- ment” principle relative to the value of equality. It is perilous to attempt to “translate” the kind of ethical analy- sis we have conducted here into Canadian constitutional terms. It is unclear whether legislation imposing the use of immunity licences would pass Charter scrutiny. If the Supreme Court of Canada is con- vinced that distinguishing on the basis of immunity status is anal- ogous to other permissible exclusionary criteria, such as age limits on driver’s licences, and not to invidious discrimination, such as that 12. Stacey Lastoe, “Lithuanian City Flirts with Becoming One Large Outdoor Café”, CNN (28 April 2020), online: <www.cnn.com/travel/article/outdoor-dining-vil- nius-lithuania-pandemic/index.html>.