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255Civil
Liberties vs. Public Health
about the pathogen, decision-making was guided by models out of
Imperial College London, which suggested the U.K. could experi-
ence 500,000 deaths and the U.S. 2.2 million. Thus, the COVID-19
pandemic met the criteria of a potentially catastrophic risk, justifying
the introduction of significant precautionary measures, such as travel
restrictions and widespread lockdowns, with evidence of their benefit
unclear and each with clear associated harms. As the availability of
scientific evidence changed, and uncertainty lessened, these measures
could be recalibrated. As such, countries are now attempting to intro-
duce less restrictive measures to balance health protection concerns
with the need to mitigate economic and other associated harms. In
doing so, it will also be important to balance health protection with a
healthy respect for civil liberties. It is in this evolution that Canadian
governments may fall short, both from the perspective of a modern
take on the precautionary principle and as part of a proportional
response under s 1 of the Charter. In other words, Canadian policy-
makers need to be sufficiently reflective and responsive to changing
public health evidence and adopt public health measures that curb a
pandemic while respecting Charter rights.
Sometimes governments may not respond to the extant evi-
dence and sufficiently loosen the restrictions they have put in place
that are intrusive of civil liberties. There are factors apart from epide-
miological efficacy that may play a role in government decision-mak-
ing over COVID-19 responses. Public health officials may hesitate to
shift direction for fear of undermining public trust in their expertise
(as has arguably resulted from shifting opinions on border closures),
or for fear of opening the floodgates to interventions that are costly
and difficult to claw back once promised (for example, a shift from
targeted to universal testing). Thus, one of the challenges of precau-
tionary decision-making is to lift or modify restrictions as evidence
emerges against the necessity of keeping them—a clear example being
the maintenance of blood donation bans on men having sex with men
long after screening tests for HIV emerged.17
On the other hand, a move to reopen may be driven by pure eco-
nomic imperatives rather than public health evidence that a less intru-
sive stance is viable. In that case, civil liberties may be “respected” but
at the risk of other human rights (such as the right to life and right to
17. Kumanan Wilson et al, “Three Decades of MSM Donor Deferral: What Have We
Learnt?” (2014) 18 Intl J of Infectious Diseases 1.
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