Page - 144 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE144 health crisis like the one COVID-19 has precipitated. I explore some of these questions in this chapter. In doing so, I attempt a fair assessment of the challenges the executive and Parliament face in such a crisis, and suggest ways that nodes of accountability might be found both within and outside the political branches when they are not operat- ing as usual. My discussion here is focused on accountability in the sense of ensuring the lawfulness of legislation and executive action.11 It is important to note, however, that robust oversight also enhances the quality of executive action and legislation quite apart from any question of lawfulness. In an emergency, both forms of oversight are crucial, as there is a risk both of overreach and of errors made in haste. At the same time, it is important to be realistic about how much oversight is possible in the initial stages of a pandemic.12 In a national emergency, vigorous opposition by politicians or push-back from the courts may be perceived as unpatriotic. Since the beginning of the outbreak, governments at all levels have spoken of the importance of adopting a “Team Canada” approach to COVID-19. This has resulted in an unusual level of cooperation between and across orders of gov- ernment.13 This collaborative spirit has extended across the aisle in Parliament. While there are obvious benefits to such an approach, there are also drawbacks, the most significant of which is the risk of weaker oversight.14 This can be detrimental to civil rights and to the separation of powers in both the short and long terms.15 11. See generally Yee-Fui Ng, “Political Constitutionalism: Individual Responsibility and Collective Restraint” Federal L Rev [forthcoming in 2020]; Paul Daly, this volume, Chapter B-6. 12. On the need to view these issues through a temporal lens, see Colleen M Flood, Bryan Thomas & Kumanan Wilson, this volume, Chapter C-1; Gabrielle Appleby, Vanessa MacDonnell & Ed Synot, “The Pervasive Constitution: The Constitution Outside the Courts”, Federal L Rev [forthcoming in 2020]. 13. See e.g. “Alberta to Send Personal Protective Equipment to Ontario, Quebec, B.C.”, CBC News (11 April 2019), online: <www.cbc.ca/news/canada/edmon- ton/alberta-to-send-personal-protective-equipment-to-ontario-quebec- b-c-1.5529989>; Susan Delacourt, “‘He’s My Therapist’: How Chrystia Freeland and Doug Ford Forged an Unlikely Friendship in the Fight Against COVID-19”, Toronto Star (3 April 2020), online: <www.thestar.com/news/insight/2020/04/03/ hes-my-therapist-how-chrystia-freeland-and-doug-ford-forged-an-unlikely- friendship-in-the-fight-against-covid-19.html>. 14. Oren Gross & Fionnuala Ní Aoláin, Law  in  Times  of  Crisis:  Emergency  Powers  in  Theory  and  Practice  (Cambridge, UK: Cambridge University Press, 2006). 15. See generally Mark Tushnet, “Emergencies and the Idea of Constitutionalism” in Mark Tushnet, ed, The  Constitution  in  Wartime:  Beyond  Alarmism  and  Complacency  (Durham & London: Duke University Press, 2005) 39; Gross & Ní Aoláin, ibid; Harlow, supra note 1, at 200-01.