The Precautionary Principle as a Justification for Limiting Constitutional Rights

Abstract

This article examines the use of the precautionary principle in the context of section 1 of the Canadian Charter of Rights and Freedoms (Charter) during the COVID-19 pandemic. The author argues that the definitions of the precautionary principle used in the COVID-19 cases are unacceptably vague and that the propositions labelled in this way do not, for the most part, have a valid role to play when assessing a rights limitation under section 1. Only the “weakest” form of the principle, which states that scientific uncertainty does not preclude state action, should be allowed to play a role in section 1 analysis — although any contribution it makes at this level will likely be negligible. All other forms of PP — more specifically, “strong” forms asserting that scientific uncertainty about the probability or magnitude of a potential harm constitutes a justification for state action, or that there exists a duty to act in the face of such uncertainty — should be granted no free-standing role in the section 1 analysis. Continued uncritical use of the precautionary principle in this context would be a mistake as it risks weakening the justification for rights limitations under the Charter.