Oversight in a pandemic: finding the sweet spot

As COVID-19 sweeps Canada and the rest of the world, new issues emerge almost hourly: medical shortages, demands for financial relief, outbreaks in prisons and long-term care homes. The challenges just keep coming.

Much of the burden for addressing these issues falls on our governments. We need them to deliver on the third part of the Canadian constitutional project “peace, order and good government” by addressing the challenges quickly, effectively and efficiently.

But we also want governments to work within shared Canadian values: respect for the rule of law, freedom of expression, equitable treatment, the protection of the vulnerable and governance that’s transparent and accountable.

Various new emergency declarations have given governments across the country sweeping powers — and they are using that authority. Matters that we would normally see publicly debated in legislatures are dealt with by the stroke of a cabinet minister’s pen.

British Columbia’s emergency powers law, for example, authorizes the solicitor general to “do all acts and implement all procedures that the minister considers necessary to prevent, respond to or alleviate the effects of an emergency.” As a matter of law, it’s not quite as wide as it sounds, but it’s pretty wide.

The breadth of these emergency powers leaves the public with many questions. What are the implications? How does this affect me? If I feel wronged, what can I do? Is anyone watching to make sure governments aren’t making big mistakes?

The answers in part are that Canada has a comprehensive network of oversight officials who are independent of governments. By law, they report to provincial legislatures or Parliament. They include auditors general, privacy commissioners, child and youth representatives, ombudspersons and others.

Together, these officers stand up for enduring principles that matter to all Canadians, arguably even more during a crisis: being treated fairly, reasonably and justly.

It’s our job to hear from the public, to try to get governments to fix problems early, to rigorously investigate when justified, and when problems are found, we work to make things right.

Decades ago, the Supreme Court of Canada said the role of the ombudsman was to “bring the lamp of scrutiny to otherwise dark places, even over the resistance of those who would draw the blinds.”

Shining that oversight lamp is critical now. These are not just esoteric ideals. They are values that oversight officers are passionately committed to more than ever before while government concurrently does less (services are reduced) and does more (giving themselves extraordinary emergency powers to provide new or adapted services).

Access to justice, challenging for many Canadians at the best of times, is even more difficult with the current narrowing of access to the courts during the pandemic. As former Chief Justice of Canada Beverley McLachlin recently observed, the pandemic has highlighted that “our reliance on only one mode of dispensing justice is wholly and woefully inadequate.”

Independent oversight officers know this all too well — also that through this pandemic we can provide expert, nimble scrutiny to hold government to account and get the public’s pressing concerns addressed.

Oversight officers know that trust in public institutions, especially those at the heart of responding to the pandemic, is critically important. We don’t want to unnecessarily get in the way of that trust while going about our work. So, during the pandemic, much of that work happens more quietly, behind-thescenes, helping governments get it right the first time. Proactive problem solving prevents unfairness from occurring in the first place and promotes reasonable treatment while preserving essential confidence.

Still, it is critical that oversight bodies use both their inside and outside voices. Where government declines to fix problems, the statutory role of oversight bodies is to report what they see to legislators and to the public, thereby promoting the critical safeguard of open discussion in a free and democratic society.

In these uncharted waters, mistakes, unfairness and oversteps are inevitable, especially given the speed at which our governments are having to react and act. Parliamentary oversight officers across Canada are there to catch these errors quickly, to provide thoughtful recommendations, to prevent reoccurrence and to bring unaddressed issues to legislator and public attention.

By doing so, when this is all behind us, “good government” will continue as one of our national sources of pride.