Page - 308 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE308 passengers could have been distanced by one or two rows from other passengers, as suggested by some studies.35 As well, special flights could have been arranged to repatriate these citizens. It is interesting to note that as early as February 17, 2020, in the second quarantine order adopted by the government to prevent the spread of COVID- 19, the government provided for measures to bring travellers back on flights “organized by the Government of Canada or a foreign govern- ment for the purpose of transporting persons from the foreign country who have or may have been exposed to that disease.”36 The govern- ment subsequently did organize flights to repatriate Canadians, but not, to our knowledge, specifically for those exposed to the COVID-19 virus. These alternatives could have been costly and have taken some time to implement, but that, in and of itself, should not have been sufficient reason to justify infringing Canadian citizens’ fundamental rights. Admittedly, increased deference should be given to govern- ments’ choices when, in the midst of a pandemic, it is urgent to act.37 In such moments, the range of what should be considered as reason- able limits on Charter’s rights might be widened, because of uncer- tainty as to the effectiveness of various measures taken to protect public health. However, this still does not shift the onus of establish- ing the reasonableness of the measure.38 Neither does it justify more intrusive measures that are no less certain to achieve the desired goal than other available measures, while increasing uncertainty for those affected by those measures. Moreover, uncertainty or not, deference or not, it is particularly important to carefully scrutinize limitations on rights in emergency situations. As for whether the effects on the constitutionally protected rights were disproportionate to the government’s objective, this mea- sure was preventing vulnerable Canadian citizens from getting back to their country. Apart from the fact that these citizens needed care if they were indeed COVID-19 positive, many of them could have suf- fered from other conditions requiring continued access to medical 35. Michael Laris, “Scientists Know Ways to Help Stop Viruses from Spreading on Airplanes. They’re Too Late for This Pandemic”, The  Washington  Post (29 April 2020), online: <www.washingtonpost.com/local/trafficandcommuting/scientists- think-they-know-ways-to-combat-viruses-on-airplanes-theyre-too-late-for-this- pandemic/2020/04/20/83279318-76ab-11ea-87da-77a8136c1a6d_story.html>. 36. PC number 2020-0070 (17 February 2020); See Government of Canada, supra note 19. 37. See Colleen M Flood, Bryan Thomas & Kumanan Wilson, this volume, Chapter C-1. 38. For more on this topic, see Carter  v  Canada  (AG), 2015 SCC 5 at para 102.