Seite - 263 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

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>.