Seite - 255 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

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.