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261Civil
Liberties vs. Public Health
have construed this as âa very conventional âutilitarianâ standard.â34
This branch of the Oakes test ensures the court is not merely engaged
in an instrumentalist assessment of whether the governmentâs actions
are appropriately tailored to its aims, but also asks the deeper ques-
tion of what those ends are worth, and whether the game is worth the
candle when it comes to rights infringements. A similar utilitarian
logic infuses the precautionary principle through the commitment to
examining costs and benefits. One can imagine responses to an infec-
tious disease outbreak that, despite being well targeted and effective
epidemiologically, would strike many as unacceptableâfor example,
vaccination or quarantine orders that target individuals on the basis
of their religious beliefs.35 Needless to say, the evidentiary challenges
associated with demonstrating minimal impairment are at play at this
stage as well; indeed, there is the added challenge of measuring the
costs to rights holders, necessary to show that the impugned govern-
ment action is net beneficial.
In some areas, however, Charter logic deviates from the guidance
offered under the precautionary principle. Shifting from a civil liber-
ties frame to an equality frame (more fully explored in the next section,
Equity, of this volume), we note the European Commissionâs guidance
defines its non-discrimination principle as requiring that âcomparable
situations should not be treated differently, and that different situa-
tions should not be treated in the same way, unless there are objective
grounds for doing so.â Canadian courts have explicitly rejected this
conception of equality in s 15 Charter jurisprudence as overly formalis-
tic: â[T]he concept of equality does not necessarily mean identical treat-
ment and that the formal âlike treatmentâ model of discrimination may
in fact produce inequality.â36 COVID-19 responses that seem on their
face non-discriminatory per the European Commissionâs definitionâ
such as heavy fines or imprisonment for violators of shelter-at-home
ordersâmay offend the Charter conception of equality, unless accom-
modations are made for vulnerable groups such as the homeless.37
34. David Beatty, âThe End of Law: At Least as We Have Known Itâ in Richard
Devlin, ed, Canadian Perspectives on Legal Theory (Toronto: Emond Montgomery,
1991) at 393.
35. Lawrence O Gostin & SG Hodge Jr, âPotential Discrimination in NYCâs Measles
Public Health Emergency Orderâ, The Hill (11 April 2019), online: <thehill.com/
opinion/healthcare/438301-potential-discrimination-in-nycs-measles-public-
health-emergency-order>.
36. R v Kapp, 2008 SCC 41 at para 15.
37. See Terry Skolnik, this volume, Chapter C-4.
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