Page - 211 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

CHAPTER B-6 Governmental Power and COVID-19: The Limits of Judicial Review* Paul Daly** Abstract This paper argues that anyone hoping for a high level of judicial engagement with the forms of power being used to combat the cul- tural, economic, medical, social, and other impacts from the current pandemic is likely to be disappointed. First, I explain the different forms of power being used in Canada to respond to the pandemic: imperium (general norms with the force of law), dominium (government contracting and distribution of resources), and suasion (information provided to the citizenry). Second, I explain why judges are unlikely to enforce public law principles, such as reasonableness, procedural fair- ness, and compliance with constitutional norms, on the uses of these different forms of power. As to imperium, any judicial engagement is likely to be at the margins; as to dominium and suasion, there is a long tradition of courts refusing to judicially review contractual deci- sions and non-binding guidance. Those concerned about the difficulty of holding Canadian governments to account in these trying times would be better advised to look to improving the channels of political accountability than trying to navigate those of legal accountability. * Thanks to Kseniya Kudischeva for research assistance, to Marie-France Fortin, Jennifer A. Quaid, and Mel Cappe for discussion, and to the editors and anony- mous reviewers for comments. ** University Research Chair in Administrative Law & Governance, University of Ottawa.