Page - 153 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

153Ensuring Executive and Legislative Accountability in a Pandemic advice on the limits of the state’s authority.56 Government lawyers have always played this role, though it is one that has grown in impor- tance with the arrival of the Canadian  Charter  of  Rights  and  Freedoms.57 While government lawyers face a delicate balancing act in seeking to be perceived as both helpful and impartial,58 they are duty-bound to “see that the administration of public affairs is in accordance with law.”59 Ministers are, of course, free to reject the advice of govern- ment lawyers, but they must nonetheless contend with it. When the lawyer’s advice is that a proposed law is unlikely to survive scrutiny on judicial review, the risk of ignoring it is much higher.60 In short, government lawyers can perform an important accountability func- tion within government, even if they do so behind the veil.61 There are good reasons to think that civil servants are capable of being effective in a public health crisis, as former Clerk of the Privy Council Mel Cappe argues in his contribution to this volume.62 For example, it is not unusual for government lawyers to be asked to pro- vide legal advice or to draft legislation in a compressed time frame. Lines of accountability within the Department of Justice itself ensure that advice on important issues and draft legislation is thoroughly institutional complexity—performs critical constitutional functions and is the key to an accountable, constrained, and effective executive branch.” 56. See generally Vanessa MacDonnell, “The Civil Servant’s Role in the Implemen- tation of Constitutional Rights” (2015) 13:2 Intl J Constitutional L 383; Gabrielle Appleby, The  Role  of  the  Solicitor-General:  Negotiating  Law,  Politics  and  the  Pub- lic Interest (Oxford: Hart Publishing, 2016); Adam M Dodek, “Lawyering at the Intersection of Public Law and Legal Ethics: Government Lawyers as Custodians of the Rule of Law” (2010) 33:1 Dal LJ at 1. 57. Janet Hiebert, Charter  Conflicts:  What  Is  Parliament’s  Role? (Montréal: McGill- Queen’s University Press, 2002); James B Kelly, Governing  with  the  Charter:  Legislative  and  Judicial  Politics  and  Framers’  Intent (Vancouver: University of British Columbia Press, 2005). 58. See Donald J Savoie, “First Ministers, Cabinet, and the Public Service” in John C Courtney & David E Smith, eds, The  Oxford  Handbook  of  Canadian  Politics  (Oxford: Oxford University Press, 2010) 172 at 180-82; M Deborah MacNair, “Government Lawyers and the Elusive Concept of the Public Interest: A Canadian Perspective” in Gabrielle Appleby, Patrick Keyzer & John M Williams, eds, Public Sentinels: A Comparative  Study  of  Australian  Solicitors-General (London: Routledge, 2014) 249 at 253. 59. Department of Justice Act, RSO 1985, c J-2, s 4(a). See also MacDonnell, supra note 56; Hiebert, supra note 57. 60. Hiebert, supra note 57. 61. John Mark Keyes, “Loyalty, Legality and Public Sector Lawyers” (2018) Ottawa Faculty of Law Working Paper No 2018-18, online: SSRN <papers.ssrn.com/sol3/ papers.cfm?abstract_id=3200076>. 62. Mel Cappe, this volume, Chapter B-2.