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253Civil
Liberties vs. Public Health
As we will explain, the ideological contrast between civil liber-
ties and public health is not as stark as it first appears. In the domain
of civil liberties and Charter rights, courts acknowledge the need for
governments to act under conditions of uncertainty.11 Meanwhile, in
the domain of public health, the precautionary principle has, in prac-
tice, evolved to incorporate elements of proportionality testing. For
example, the European Commission’s recent guidance on the precau-
tionary principle12 incorporates various sub-principles that echo the
commitments of Charter law, including the principles of proportional-
ity, non-discrimination, and consistency with measures taken in areas
where scientific data are available.
Precautionary Principle (and its Evolution) Explained
As traditionally understood, the precautionary principle is the idea that
measures should be taken to protect against a risk even if there is uncer-
tainty over the benefit of the measures or the level of risk; the burden of
proof rests on those who argue against the measures.13 Applied to the
issue at hand, it stands for the proposition that one does not require com-
plete evidence of the efficacy of, for example, near-universal, mandatory
physical distancing or closure of provincial borders before implementing
such measures. Indeed, as the risk to the population increases, the evi-
dentiary threshold for taking precautions lowers. The principle reflects
a recognition of the limitations of scientific models to accurately describe
complex issues pertaining to environmental harm or health risks, and
the need for policy-makers to act notwithstanding those limitations.
While emerging out of the European environmental movement,
the principle has increasingly been applied to public health matters.
In Canada, the primary impetus for its use in public health in Canada
was the Krever Inquiry.14 In criticizing Canada’s decision not to intro-
11. The Supreme Court has not been altogether consistent in the degree of defer-
ence shown to governments legislating under conditions of uncertainty. For an
excellent, if slightly dated, discussion, see Sujit Choudhry, “So What is the Real
Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian
Charter’s Section 1” (2006) 34:1 SCLR 501.
12. “EU’s Communication on Precautionary Principle” (2000), online: The GlobalÂ
Development Research Center <www.gdrc.org/u-gov/precaution-4.html>.
13. D Kriebel et al, “The Precautionary Principle in Environmental Science” (2001)
109:9 Environmental Health Perspectives 871.
14. H Krever, Commission of Inquiry on the Blood System in Canada: Final Report, vol 1
(Ottawa: Government of Canada Publications, 1997).
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