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two overarching principles in evaluating these apparent trade-offs:
the principle of proportionality, central to Canadian Charter jurispru-
dence; and the precautionary principle, used in public health.
As traditionally conceived, the discourses of civil rights and
public health rest on opposite assumptions about the burden of proof.
In the discourse of civil and political rights—of the sort guaranteed
under the Canadian Charter of Rights and Freedoms8—the onus rests
primarily on government to show a “pressing and substantial” objec-
tive for interfering with protected rights and freedoms; moreover,
governments are obliged to use rational, minimally intrusive, and
proportionate means of achieving that objective. By contrast, public
health discourse centres on the precautionary principle which holds
that action should be taken—even actions that impact civil rights—to
mitigate potentially catastrophic risks, even in the absence of com-
plete evidence of the benefits of the intervention or of the nature of
the risk. Dr. Anthony Fauci, Director of the U.S. National Institute of
Allergy and Infectious Diseases, captures the precautionary principle
with his now-famous maxim, “If it looks like you’re overreacting,
you’re probably doing the right thing.”9
In non-emergency policy-making scenarios, where govern-
ments have time to gather social science evidence before enacting and
enforcing laws, it is often possible to reconcile this conflict between
civil liberties and public health. In a fast-moving pandemic, govern-
ments are forced to make urgent policy maneuvers that impact civil
liberties in a vortex of uncertainty, without the luxury of prolonged
deliberation; often, actions are taken on the basis of executive orders,
pursuant to emergency legislation, even without legislative debate.10
In such situations, decision makers may be forced to lean more heavily
on first principles—whether employing restrictive measures that may
ultimately prove unnecessary, overreaching in deference to the pre-
cautionary principle, or hesitating to act in deference to civil liberties.
8. CanadianÂ
CharterÂ
ofÂ
RightsÂ
andÂ
Freedoms,Â
Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982Â (UK), 1982, c 11.
9. Interview of Dr. Anthony Fauci (15 March 2020) on Face the Nation, CBS News,
Chicago, online (video): CBS News <www.cbsnews.com/news/transcript-dr-
anthony-fauci-discusses-coronavirus-on-face-the-nation-march-15-2020/>.
10. For a discussion of the near-complete absence of deliberation to date, see
Vanessa MacDonnell, this volume, Chapter B-1. See also Craig Forcese,
“Repository of Canadian COVID-19 Emergency Orders” (last visited
13 May 2020), online (blog): Intrepid <www.intrepidpodcast.com/blog/2020/3/19/
repository-of-canadian-covid-19-emergency-orders>.
VULNERABLE
The Law, Policy and Ethics of COVID-19
- Titel
- VULNERABLE
- Untertitel
- The Law, Policy and Ethics of COVID-19
- Autoren
- Vanessa MacDonnell
- Jane Philpott
- Sophie Thériault
- Sridhar Venkatapuram
- Verlag
- Ottawa Press
- Datum
- 2020
- Sprache
- englisch
- Lizenz
- CC BY-NC-ND 4.0
- ISBN
- 9780776636429
- Abmessungen
- 15.2 x 22.8 cm
- Seiten
- 648
- Kategorien
- Coronavirus
- International