Page - 154 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE154 vetted before it reaches the political executive, providing some assur- ance of their quality. At the same time, the U.S. experience suggests that caution is needed before concluding that government lawyers will invariably give impartial advice in a pandemic. The “Torture Memos” written by Justice Department lawyer John Yoo justifying the mistreatment of Afghan detainees on the thinnest of legal grounds loom large in think- ing through how government lawyers support the political executive in an emergency.63 Like other actors who play a role in responding to the pandemic, government lawyers may feel a natural inclination to “support the team.” As long as this prompts them to provide advice on how the government can achieve its objectives within the limits set down by the constitution and other laws, there is no issue.64 Such advice is entirely consistent with the government lawyer’s duties and fulfills an important accountability function at a moment when accountability checks may be weakened. The Role of the Senate Prior to the pandemic, the independent Senate had already emerged as an important body in holding the government to account.65 In 2014, Justin Trudeau announced that he was removing all Liberal senators from the Liberal Caucus. Upon becoming Prime Minister, he implemented an independent Senate appointments process.66 Since that process was created in 2016, Trudeau has appointed fifty-two Senators.67 Paul J. Thomas explains that “[t]he Senate has not been completely transformed. However, enough change has occurred in the past five years that it is possible to contrast the “old, partisan, 63. “A Guide to the Memos on Torture”, The New York Times (2005), online: <archive.nytimes.com/www.nytimes.com/ref/international/24MEMO-GUIDE. html?mcubz=3>. 64. Mary Dawson, “The Impact of the Charter on the Public Policy Process and the Department of Justice” (1992) 30:3 Osgoode Hall LJ 595 at 603. 65. On the role of upper chambers in ensuring accountability, see generally Russell & Gover, supra note 38 at 7-8. 66. Government of Canada, “Independent Advisory Board for Senate Appointments” (4 March 2020), online: Government  of  Canada <www.canada.ca/en/campaign/ independent-advisory-board-for-senate-appointments.html>. 67. Office of the Prime Minister of Canada, News Release, “The Prime Minister Announces the Appointment of Two Senators” (31 January 2020), online: Office  of  the Prime Minister of Canada <pm.gc.ca/en/news/news-releases/2020/01/31/prime- minister-announces-appointment-two-senators>.