The COVID-19 pandemic has highlighted the challenges governments face in balancing civil liberties against the exigencies of public health amid the chaos of a public health emergency. Current and emerging pandemic response strategies may engage diverse rights grounded in civil liberties, including mobility rights, freedom of assembly, freedom of religion, and the right to liberty and security of the person. As traditionally conceived, the discourses of civil rights and public health rest on opposite assumptions about the burden of proof. In the discourse of civil and political rights of the sort guaranteed under the Canadian Charter of Rights and Freedoms, the onus rests on government to show that any limitation on rights is justified. By contrast, public health discourse centers on the precautionary principle, which holds that intrusive measures may be taken—lockdowns, for example—even in the absence of complete evidence of the benefits of the intervention or of the nature of the risk. In this article, we argue that the two principles are not so oppositional in practice. In testing for proportionality, courts recognize the need to defer to governments on complex policy matters, especially where the interests of vulnerable populations are at stake. For their part, public health experts have incorporated ideas of proportionality in their evolving understanding of the precautionary principle. Synthesizing these perspectives, we emphasize the importance of policy agility in the COVID-19 response, ensuring that measures taken are continually supported by the best evidence and continually recalibrated to avoid unnecessary interference with civil liberties.
Caroline Foster. Science and the Precautionary Principle in International Courts and Tribunals. Expert Evidence, Burden of Proof and Finality
