Seite - 261 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

261Civil Liberties vs. Public Health have construed this as “a very conventional ‘utilitarian’ standard.”34 This branch of the Oakes test ensures the court is not merely  engaged in an instrumentalist assessment of whether the government’s 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 unacceptable—for 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 Commission’s guidance defines its non-discrimination principle as requiring that “comparable 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.” Canadian courts have explicitly rejected this conception of equality in s 15 Charter jurisprudence as overly formalis- tic: “[T]he concept of equality does not necessarily mean identical treat- ment and that the formal ‘like treatment’ model of discrimination may in fact produce inequality.”36 COVID-19 responses that seem on their face non-discriminatory per the European Commission’s definition— such as heavy fines or imprisonment for violators of shelter-at-home orders—may offend the Charter conception of equality, unless accom- modations are made for vulnerable groups such as the homeless.37 34. David Beatty, “The End of Law: At Least as We Have Known It” in Richard Devlin, ed, Canadian  Perspectives  on  Legal  Theory  (Toronto: Emond Montgomery, 1991) at 393. 35. Lawrence O Gostin & SG Hodge Jr, “Potential Discrimination in NYC’s Measles Public Health Emergency Order”, 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.