Seite - 264 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE264 “suspended declarations of invalidity”—a remedy where a govern- ment action is deemed invalid, but is allowed to remain operative for month or even years as the government develops alternative plans. Assuming that some legal challenge to COVID-19 responses had trac- tion in the courts, it is possible that the pandemic may have run its course and that the infringing measures are lifted voluntarily before any court order vindicating civil rights comes into effect. On the other hand, as time passes and evidence gathers on effec- tive responses, courts may become more demanding. Take, for exam- ple, excluding family members from seeing their dying relatives—a heartbreaking scenario where a loved one is left to die alone, poten- tially engaging the Charter’s s 7 right to liberty and security of the person. As we reset to a new normal where we mitigate risks as best as possible, courts may demand of governments that their precaution- ary measures evolve with changing evidence to better protect such fundamental rights. We believe that there is an opportunity to reconcile these con- flicts, as there are many parallels between the Oakes test and the EU guidance on the precautionary principle. Ultimately, an agile policy is needed, one that recognizes the changing level of scientific uncer- tainty and the changing balance between civil liberties and precaution- ary measures. In fact, the importance of civil liberties can encourage the timely revisiting of precautionary measures—something that has been a challenge in its application to public health. Conversely, the inclusion of the public health perspective can be a corrective against extremist interpretations of rights and freedoms—scenarios where individuals “die with their rights on.” As such, ultimately a dynamic policy approach would be consistent with both the Charter and the appropriate application of precaution, and the two would work together to both protect the public’s health and ensure protection of an individual’s rights and freedoms.