Seite - 258 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE258 Ideally, when governments develop legislation, they invest considerable time in anticipating potential effects on Charter rights, ensuring there is some evidence available to answer a court challenge. This is a luxury that may be unavailable as governments confront an unprecedented pandemic. Often, when governments fail at the Oakes test, it is at the min- imal impairment stage: courts will point to some less intrusive policy alternative as evidence that government has overstepped its powers. Rare is the case where merely contemplating policy alternatives in the abstract will suggest less-impairing alternatives—particularly when it comes to complex, polycentric questions such as choices involving public health measures or the design features of complex health sys- tems. Thus, the courts will at times look at measures taken in other jurisdictions—whether other provinces or other countries—to assess whether the government action is truly minimally impairing.25 It would be a mistake to suppose that the courts apply uniform evidentiary standards to all s 1 analysis. In some (but by no means all) cases, the courts impose a heavier burden of proof on government, at the s 1 stage, such as in criminal law matters—an area where the court feels most confident in its institutional competence, and where the state is the “singular antagonist” of the claimant’s rights. By con- trast, the courts can be more deferential to government in Charter cases that involve complex, polycentric trade-offs between multiple individuals26—particularly vulnerable individuals (for example, low- skilled workers,27 children28). This reflects, first, a recognition that courts lack institutional competence over polycentric questions, and, second, that laws protecting vulnerable people should be shown spe- cial deference lest the Charter “simply become an instrument of bet- ter situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons.”29 The 25. Chaoulli  v  Quebec  (Attorney  General), 2005 SCC 35 [Chaoulli]. 26. Christopher P Manfredi & Antonia Maioni, “Judicializing Health Policy: Unexpected Lessons and an Inconvenient Truth” in James B Kelly & Christopher P Manfredi, eds, Contested  Constitutionalism:  Reflections  on  the  Canadian  Charter  of  Rights  and  Freedoms  (Vancouver: University of British Columbia Press, 2010) at 129; Kent Roach, “The Challenges of Crafting Remedies for Violations of Socio- economic Rights” in Malcolm Langford, ed, Social  Rights  Jurisprudence:  Emerging  Trends in International and Comparative Law (Cambridge, UK: Cambridge University Press, 2008) at 46. 27. R v Edwards Books and Art Ltd, [1986] 2 SCR 713, 35 DLR (4th) 1 [Edwards Books]. 28. Irwin  Toy  Ltd  v  Quebec  (Attorney  General), [1989] 1 SCR 927, 58 DLR (4th) 577. 29. Edwards Books, supra note 27.