Page - 157 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

157Ensuring Executive and Legislative Accountability in a Pandemic new senators has sometimes impacted the institution’s effectiveness.80 Assuming these challenges can be overcome as senators begin to find their footing, however, committee review in the Senate is likely to pro- vide an important measure of accountability. In sum, the Senate is well positioned to hold the government to account for its response to COVID-19. This role is a natural one for the Senate, one that it draws on both its traditional expertise in studying national issues and its more recent status as an independent institu- tion capable of scrutinizing and improving government legislation.81 In fact, provided that the worst of its growing pains are now behind it, the Senate’s response to the pandemic could prove to be a defining moment for the institution, when it finally emerges as an indepen- dent, effective body that contributes materially to enhancing the qual- ity of our democracy. Keeping Courts Open Writing more than a decade ago, Mark Tushnet was candid in his pes- simism about the courts’ ability to serve as a check on executive and legislative excesses in an emergency. In particular, he worried that the concept of proportionality that is at the heart of constitutional rights analysis in so many jurisdictions is not up to the task of protecting civil rights in a crisis.82 Many of the concerns he identified, includ- ing the courts’ propensity to defer to legislatures where there is an informational gap between the courts and the political branches, are also live issues in the context of COVID-19.83 By contrast, Kent Roach offers a somewhat different perspective. After evaluating the courts’ response to the national security crisis precipitated by 9/11, he argued that they have not been particularly deferential to the executive and the legislature.84 80. Ibid. 81. Thomas, “New and Improved Senate”, supra note 16; Macfarlane, supra note 69. On “improv[ing]” government legislation, see GRO, “Progress Report”, supra note 69. 82. Tushnet, supra note 15. See also Sujit Choudhry, “So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter’s Section 1” (2006) 34 SCLR (2d) at 501. 83. Colleen M Flood, Bryan Thomas & Kumanan Wilson, this volume, Chapter C-1. 84. 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.