Seite - 262 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE262 Applying the Proportionality and Precautionary Principles to COVID-19 Responses A number of measures to prevent a bush fire spread of COVID-19 interfere with personal freedoms, and take a heavy toll on people who find lockdown conditions intolerable because of their particu- lar circumstances. While s 7 of the Charter protects life, liberty and security of the person, it is generally understood that economic rights are not protected—except perhaps in the limiting case where govern- ment interferences with market freedoms jeopardize health, or life, or security.38 Many Canadians have felt severe economic distress from lockdown measures, but it seems unlikely that a s 7 challenge would pass the infringement stage, especially given the countervailing relief measures in place (for example, expanded Employment Insurance benefits, employment subsidization packages for some businesses, mortgage deferral programs, eviction moratoria). It is, nevertheless, worthwhile reflecting on the proportionality of these measures.39 These measures were likely justified at the outset of the pandemic—given its scientific uncertainty and its potentially catastrophic nature. As the scientific uncertainty reduces and we have a better understanding of the nature, severity, and extent of the threat, there may be opportunities to strike a better balance between pub- lic health measures and rights and freedoms. Currently, a calibrated reopening of society based on detected cases and health care capac- ity is the approach in most jurisdictions; nevertheless, unless there is a change in the nature of the pathogen to be less harmful, these approaches are problematic, as a high percentage of the population remains susceptible (95%). Furthermore, front line workers are par- ticularly at risk as society is reopened, given the inability to effectively physically distance in their work environments and the likelihood of exposure to a high viral load in a confined setting. A paradox of the current situation is that the imposition of eco- nomic hardship and restrictions on personal freedom may be pro- longed out of concern that alternative responses raise legal/ethical concerns of their own. Two technological solutions—immunity pass- ports and digital contact tracing—could address these challenges but, so far, have been delayed due to legal/ethical concerns and scientific 38. Chaoulli, supra note 25. 39. Proportionality testing under s 7 is less straightforward than other Charter pro- visions. See supra note 31.