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health), although these latter rights, while recognized in many coun-
tries, are not recognized as free-standing rights under the Canadian
Charter.18
Charter Proportionality Explained
Charter law, and civil liberties generally, have a different centre of
gravity than public health law—their primary commitment is to
secure protected rights and freedoms of individuals against incur-
sions by the state. There is a popular misconception that rights are
trumps against government action—that once a rights infringement
has been identified, the offending government action must cease,
though the heavens may fall. With some possible exceptions,19 this
is not how rights operate in Canada. Indeed, the possibility of limita-
tions on individual rights is made explicit in section 1 of the Charter,20
which clarifies that the enumerated rights and freedoms are subject
to “such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.” What Charter rights pro-
vide, then, is not some fixed and all-purpose licence to do x, y, and
z. What the Charter guarantees, first and foremost, is a requirement
of demonstrable justification of government interference with enumer-
ated rights (and the remediation of unjustifiable government actions).
The culture of justification mandated by the Charter manifests
itself at various levels. The requirement that government actions
infringing rights be “prescribed by law” is a safeguard against
arbitrariness,21 ensures that rules are communicated to the public, and
offers initial assurance that some legislative debate has taken place. Of
course, with the use of emergency powers invoked by all provinces,
the executive may issue orders profoundly impinging upon civil lib-
erties without the sunlight of parliament scrutiny.
In response to these incursions, in theory individuals have
recourse to the courts, to press the case that some government action
18. For further discussion see Martha Jackman, this volume, Chapter D-3.
19. As an example, some have argued that the right to be free from torture is abso-
lute, though this is debatable and arguably belied by the Supreme Court of
Canada’s jurisprudence.
20. There are also similar limitations within s 7 itself: any deprivation of “life, lib-
erty, or security” must not occur except in accordance with the “principles of
fundamental justice.” This has been interpreted to include, among other things,
that the law cannot be “arbitrary” or “over-broad.”
21. R v Therens, [1985] 1 SCR 613, 18 DLR (4th) 655.
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