As operating systems, as institutions, the three branches of the state in Canada were not designed for a global pandemic. Of particular concern remains that FPT regulations and orders-in-council are not made available to the public in a centralized, timely, accessible manner, in most jurisdictions. Nor do FPT Executive branches alert the public when something said at the podium is already the law (authorized by legs or regs), or amounts to advice or advocacy. Of even greater concern is the extremely limited availability of courts and tribunals to review Executive orders and actions, in some jurisdictions. For several months, too many jurisdictions’ courts were simply closed. Without access to judicial review, citizens (and NGOs) cannot avail themselves of their constitutional protections, to be sure.
Within the FPT Executives, the capacity of Attorneys-General to keep governments within their constitutional limits was spotty, flimsy, and uneven at first, when FPT governments commenced their emergency management of COVID19. One jurisdiction’s initial public health order was signed by a public health official, but it had clearly not been reviewed by counsel, let alone someone from a justice ministry. Rarely, if ever, has the public heard from Justice officials regarding rapidly unfolding rules and their variations. The diminishment of the quasi-judicial function of these ministries, within every FPT jurisdiction, is a severe defect within our constitutional system, at present. The Justice ministries have not so much become partisan or political, as impotent and marginalized. They tend to punt constitutional queries to the line ministries, rather than doing their job as superintendents of the rule of law within their governments.
A solution to the latter could be found in the re-deployment of Justice officials to those ministries particularly engaged in policies and laws limiting peoples’ liberty and freedoms during the pandemic. A further corrective can be found in addressing this matter directly with your First Minister, by ensuring that a Justice ministry voice is present where full Cabinet meetings are not possible. Lastly, Justice ministers themselves ought to expend their political capital at this time to leverage the strongest possible counter-balance to the ongoing public health strategy of mass behavioural modification of Canadian residents. The importance of this voice at this time has never been more pressing in our history, at least since patriation.