Page - 146 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE146 Finally, while there is robust academic debate on the courts’ relative effectiveness in an emergency, it is essential that they remain open to hear challenges to executive and legislative overreach and government inaction during the pandemic.19 The current lockdown has imposed dramatic restrictions on individuals’ liberties. It is becoming increasingly obvious that the burden of these restrictions is not borne equally.20 There is no guarantee that majoritarian politi- cal processes will be effective in addressing the disparate impact of lockdown policies on vulnerable groups. In fact, history suggests that they are not effective in performing this function. Courts are uniquely suited to addressing these types of claims—it is a core component of their mandate under the Canadian  Charter  of  Rights  and  Freedoms.21 As the courts continue to figure out how to operate remotely, they ought to prioritize and expedite the hearing of challenges to executive over- reach, the constitutionality of legislation, and government inaction. I begin this chapter by examining Parliament’s response to COVID-19 to date. I then turn to a discussion of accountability “behind the veil”—that is, nodes of accountability that might be invis- ible to the ordinary observer, but which can have an important effect on government decision-making and law-making. In the third section of this chapter, I outline the oversight role the Senate has assumed in the pandemic, and in the fourth section, I argue that, notwithstanding their limitations, the courts remain important accountability checks in a public health crisis. 19. Mark Tushnet refers to courts as “weak reads in a crisis”: see Mark Tushnet, “The Political Constitution of Emergency Powers: Parliamentary and Separation-of- Powers Regulation” (2007) 3:4 Intl J Law in Context 275 at 277 (internal quo- tation marks removed). For a contrary view, see Kent Roach, “Comparative Constitutional Law and the Challenges of Terrorism Law” in Rosalind Dixon & Tom Ginsburg, eds, Comparative Constitutional Law (Northampton, MA: Edward Elgar Publishing, 2011) 532. On inaction, see “Legal Challenge Citing Canada’s Failure to Protect Prisoners’ Health During COVID-19: Notice of Application” (12 May 2020), online: Canadian  HIV/AIDS  Legal  Network <www.aidslaw.ca/site/ notice-of-application-prison-covid/?lang=en> [HIV/AIDS Legal Network Notice of Application]. 20. See Section D: Equity and COVID-19, this volume. 21. Reference Re Secession of Quebec, [1998] 2 SCR 217, 161 DLR (4th) 385; United States v Carolene Products Co, 304 US 144 (1938); Ran Hirschl, Towards  Juristocracy:  The  Origins  and  Consequences  of  the  New  Constitutionalism (Cambridge, MA: Harvard University Press, 2004) at 1-2.