Page - 213 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

213Governmental Power and COVID-19: The Limits of Judicial Review or remotely, with parliamentarians having to adjust to Zoom and other electronic meeting platforms. And, of course, governments have insisted that pandemic conditions require rapid responses, reduc- ing the time available for parliamentary scrutiny. Moreover, media, civil society organizations, and citizens face an information deficit, as our understanding of COVID-19 remains a work-in-progress and official statistics about tests, infections, hospitalizations, deaths, and recoveries are difficult to decipher.3 The resultant shortfall in terms of political accountability might be thought to create a heightened need for legal accountability, in the form of rigorous judicial over- sight of governmental responses to the COVID-19 crisis. This could take the form of robust controls holding governments—and private actors aiding governments—to public law principles: the high stan- dards of substantive reasonableness, procedural fairness, and human rights protections developed by the courts in recent decades.4 With acceptable levels of political accountability hard to achieve, perhaps courts could help to ensure that emergency powers, state largesse, and official guidance are being used appropriately and are achieving governmental objectives. However, those who hope for a high level of judicial engagement with the forms of power being used to combat the cultural, economic, medical, social, and other impacts from the current pandemic are likely to be disappointed. In this first section of this chapter, I explain the different forms of power being used in Canada, at the federal and provincial levels, to respond to the pandemic. In the second section, I explain why judicial control of these forms of power is likely to be limited. Judicial control of public administration is carried out through judicial review, which allows the courts to impose public law principles on governmental decision makers. These public law principles include reasonableness, procedural fairness, and compliance with the Constitution of Canada, including the Charter  of  Rights  and  Freedoms. Where governmental deci- sion-makers fail to comply with public law principles, their decisions can be invalidated by the courts. But as I will explain, there is little pros- pect of muscular judicial engagement with governmental responses to the pandemic.5 This is not because the courts are inaccessible—though 3. See Colleen M Flood & Bryan Thomas, this volume, Chapter A-6. 4. Jennifer A Quaid suggests, for instance, in her contribution to this section that legal controls should be adapted to the exigencies of the current situation, improving accountability. See Quaid, this volume, Chapter B-8. 5. See also Marie-France Fortin, this volume, Chapter B-7.