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263Civil
Liberties vs. Public Health
uncertainty over their benefits. For example, immunity passports,
which identify those who have antibodies in their blood that may
confer immunity, could permit further protection for front line work-
ers in meat-packing plants or long-term care homes, where either
social distancing isn’t possible or transmission affects the vulnera-
ble.40 Differing views of this technology have prevented its adoption,
and thus we are potentially at risk of repeating the error that Justice
Krever identified—waiting for clear evidence before acting.41 We may
wish that we had acted earlier, but what is unclear is how to weigh the
potential benefits of lifting restrictions with essential rights and values
such as privacy and equity.
Conclusion
As we write, the COVID-19 pandemic is still unfolding. One of the
major challenges is to settle on durable framing of the issues—in full
knowledge that the facts are changing every day, and will have evolved
considerably before this book is published. As we have pointed out,
both proportionality analysis and the precautionary principle may
offer shifting conclusions as new evidence and responses emerge.
While this may disappoint rights-absolutists, it is surely a good thing,
as it signals that these methods of analysis are in dialogue with our
evolving understanding of the facts on the ground.
From a civil rights perspective, the legal permissibility of
COVID-19 responses may turn partly on when legal challenges
emerge. In the early stages of a global pandemic, as governments
scramble to develop a response, it seems unlikely that courts would
overturn restrictions on social gatherings or non-essential work. One
expects deference from courts in these situations, given their limited
institutional competence in public health and the potential risks to
vulnerable populations. Even if courts were to find a Charter infringe-
ment, one expects they might opt for a remedy that offers government
some latitude. Canadian courts have been at the forefront in using
40. JS Weitz et al, “Modeling Shield Immunity to Reduce COVID-19 Epidemic
Spread” (2020), online: Nature Medicine DOI: <doi.org/10.1038/s41591-020-0895-3>.
41. For opposing viewpoints on digital passports, see Kumanan Wilson,
Sophie Moreau & Sabine Tsuruda, “The Big Debate: Should Those With Immu-
nity Get a COVID-19 Digital Passport?”, Toronto Star (12 May 2020), online: <www.
thestar.com/opinion/contributors/thebigdebate/2020/05/12/the-big-debate-
should-those-with-immunity-get-a-covid-19-digital-passport.html>.
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