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259Civil
Liberties vs. Public Health
Supreme Court of Canada has also indicated that government should
be granted wider latitude to justify measures enacted in response to
national emergencies.30
These considerations suggest that courts are likely to be defer-
ential to government actions taken in response to COVID-19.31 Such
measures, designed to flatten the curve and achieve statistical improve-
ments in survival rates, are quintessentially complex and polycentric.
Likewise, the primary intended beneficiaries are paradigmatically
vulnerable populations—the elderly and immunocompromised.
Proportionality and Precaution Compared
There are points of both convergence and divergence between the ori-
entation of civil rights laws and public health law. As noted, Charter
rights do not operate as trumps, but instead entitle people to a reasoned
justification for government actions that interfere with their enumer-
ated rights. This overarching commitment to reasoned justification is
echoed in the precautionary principle, as elaborated by the European
Commission, in its sub-principle that restrictive measures should be
subject to review in light of further scientific evidence. Whether in the
domain of law or science, it is naĂŻve to assume that arguments, evi-
dence, and conclusions are ever final, and it is therefore appropriate
that both domains have this commitment to ongoing justification, as
new evidence emerges regarding the efficacy or necessity of specific
responses. We have seen that courts are cognizant of the need to gov-
ern under conditions of uncertainty and will defer to governments
that make good-faith efforts at striking a reasonable balance between
individual rights and collective societal interests. Governments can
expect—and deserve—that deference when they scrupulously con-
sider and reconsider the necessity of incursions into civil liberties,
ensuring in real time that they are carefully tailored.
Likewise, the Oakes test’s minimal impairment stage has clear
parallels in the precautionary principle’s sub-test of “consistency
30. RÂ
vÂ
Heywood, [1994] 3 SCR 761 at 802-03, 120 DLR (4th) 348; Reference Re BC Motor
Vehicle Act, [1985] 2 SCR 486 at 518, 24 DLR (4th) 536.
31. Section 7 rights are rarely saved under s1. In part, this is because a similar analy-
sis to s 1 is conducted within s 7 itself, namely an examination of whether the
deprivation of a “right” is in accordance with the “principles of fundamental jus-
tice.” For example, the latter requires that the law or policy not be “over-broad,”
which is similar to one part of the s 1 analysis that examines whether the law or
policy is “minimally impairing.”
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