Exposing our vulnerabilities

“The pandemic is a stark reminder of the fragility of democratic governance, the rule of law, and fundamental rights.” That line comes from the introduction of a volume series of essays, Vulnerable: The Law, Policy and Ethics of COVID-19, a project led by a group of professors at the University of Ottawa's law school that explores the public policy implications of the crisis response to our modern-day plague.

The volume contains the submissions of 69 academics and experts drawn from a range of disciplines. The pervading theme running throughout is our collective vulnerability in responding to the pandemic, rooted in pre-existing social and economic inequities. The essays are organized around governance, accountability, civil liberties, equity, work, and global health.

There was a sense of urgency in the collaborative effort. From about a month into the country going into lockdown, the project came together in eight weeks, says University of Ottawa law professor Vanessa MacDonnell, one of the book's five co-editors (the others are law professors Colleen M. Flood, Vanessa MacDonnell and Sophie Thériault, former federal Health minister Jane Philpott, and Sridhar Venkatapuram, the director of Global Health Education & Training at King's College in London).

"We wanted to put together a collection that was going to help policymakers as they navigated all of these changes that were happening," says MacDonnell. "We were seeing the huge public health issues, and it became clear at a very early stage that there was a real equity dimension – that the pandemic was exposing a lot of inequalities that already existed."

Hopefully, MacDonnell says, policymakers will give proper consideration to our system's vulnerabilities as provincial and federal governments will need to coordinate around their separate spheres of jurisdiction.

On that issue, Carissima Mathen, also a law professor at the University of Ottawa, advises the federal government in her essay to exercise restraint in contemplating the use of emergency powers in areas that are the domain of the provinces. "In a crisis of this kind, the federal government is not necessarily best placed to do things that people want it to do," she says. "At the time, there was pressure around long-term care, but it's not just about the funding, and what people were upset about was about how these places were run, and that's not something that the federal government can do usefully through emergency legislation."

Mathen adds that while she understands the impetus to want a national response when it comes to a pandemic, the top-down approach is probably not useful, and that there needs to be cooperation. In support of her argument, Mathen also cites demands that the federal government step in to help subsidize rents, a provincial matter.

It is also essential for the response to a public-health crisis of this magnitude to observe fundamental principles of democracy. But democratic governance has been a challenge, says MacDonnell, with Parliament shutting down, and with restrictions imposed on access to the courts for a couple of months.

"The basic machinery of government essentially slowed to a halt, and the government was rolling out huge spending programs while Parliament was hardly meeting," says MacDonnell. Her chapter in the book discusses executive and legislative accountability in a pandemic. It even explores the role of a more empowered and "independent" Senate in shaping the government's response.

Meanwhile, the courts face a massive caseload backlog caused by the pandemic's disruptions and struggle with accountability issues in exercising judicial oversight.

"In this era, we think that the courts are where the action is at, and that is just not true so much of the time," says MacDonnell. "Even if the courts were operating normally, they cannot be the primary driver of the public response. That's not how they're set up, and the reality is that all of the judges who are panicking that the courts aren't fully operational are right to panic."

It will become clear that there is no solving the backlog in a few months, MacDonnell adds. It will be interesting to see whether Crown prosecutors will continue to insist on charges and jail terms.

And though judicial oversight is vital to accountability, administrative law professor Paul Daly cautions that the courts aren't always effective in this area.

When Daly wrote his chapter on the limits of judicial review, governments were engaging in measures around lockdowns, and scrambling to establish in commercial relationships to procure personal protective equipment and potential vaccines. The legislatures have significant authority and can delegate sweeping powers to executives, he says. But when it comes to commercial relationships, judicial oversight is limited.

"We tend to think of the public law principles of reasonableness and procedural fairness, but they don't apply with the same force, if at all, in government-commercial relationships," says Daly.

Daly says that because of the need to move quickly and be flexible, that governments have been using a lot of "soft law," which is non-binding guidance, rather than laws and regulations to achieve their objectives. Which the courts are reluctant to review.

"You've got legislatures not functioning optimally," says Daly. "Then […] if things are not functioning optimally, if legislatures are finding it difficult to do their jobs, and they are unsure of what their options are because the terrain is changing very quickly, the question is, can courts plug the accountability gaps that appear? And I say the answer is probably not."

Managing a pandemic while navigating the complexities of Canadian federalism was never going to be easy. But as MacDonnell points out, there is also the international dimension to the challenge that policymakers will have to take into account in crafting a recovery plan moving forward.

"One of the themes is that we're all interconnected," she says. "We can't just develop a Canadian response and hope that what happens in other countries doesn't affect us. This was a global pandemic – we're not an island."