Health Committee on May 3rd, 2021

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chair.

Dr. Marchildon, I'm sure you're aware that the War Measures Act was enacted in 1914 and that up until the 1980s Canada had no comprehensive peacetime emergencies legislation. I'm going to read a bit to you from the working paper that surrounded the introduction of the Emergencies Act in 1988, which was was given to parliamentarians.

It says:

Emergencies legislation is an attribute of statehood. Canada is unique among industrially developed nations in not having comprehensive emergency legislation on the books. As well, all of our provinces and territories have legislation in place to deal with their responsibilities for emergencies.

The Emergencies Act meets the shortcomings of the existing regime.... It will enable the federal government to discharge its constitutional responsibility to provide for the safety and security of Canadians during “national” emergencies which are defined in the Preamble.

The paper continues:

The Act will provide the government with an appropriately safeguarded statute to deal with a full range of possible emergencies, not only enabling it to act quickly to minimize injury and suffering, but also ensuring that exceptional powers granted are no greater than those necessary to cope with the situation.

Over the past year, the Canadian Armed Forces have had to be called in three times to the provinces: twice in Ontario—one recently—and once in Quebec. We are in the third wave of a pandemic. Several provinces today are in, I would say, grave situations. We heard a previous witness describe Alberta as having the worst record of any jurisdiction in Canada or the United States.

My question to you is this. If we don't or can't invoke the Emergencies Act today in these circumstances, is that a problem with the legislation or is there a problem with the political decision-making to do so?

[Dr. Gregory Marchildon]

I would say that it can be invoked, but the question then becomes one of how effective that would be.

If you look at existing legislation like the Canada Health Act, which was referred to earlier, that would be a way of setting national standards, and if that wasn't powerful enough, you could resort to the Emergencies Act to set some basic national standards, including the requirements on dosing, and that's been subject to a great deal of scientific discussion.

Our state of knowledge, of course, is imperfect, but assuming a situation where our state of knowledge would have been better, then it would have been possible to set some standards. However, to take direct action would be extremely difficult because of the need to basically work through the provinces and territories.

You can invoke police powers but then you would rely upon provincial and municipal police to enforce those powers; you could not do it solely through the RCMP. All I said was, yes, it can be done, and I think the power is there to do it, but would it be effective? As the earlier speaker, Dr. Attaran, said, I would say it's maybe one of the less effective ways to approach this.

[Don Davies, NDP, Vancouver Kingsway, BC]

I guess that's my question. If Canada's flagship and, frankly, only legislation to deal with national emergencies is not invoked in what I think we all regard as about the worst emergency one can think of—certainly it's been described as once in a century—then to me there's either a problem with the legislation—it's either got too high a barrier to be invoked or it doesn't have sufficient powers or the right kinds of powers—or there is a political issue with it not being invoked.

What we do know is that it has not been invoked. What I'm trying to get at is where the problem is, because if we have a national government that can't invoke its full powers to deal with the issues that are national in scope.... I'm going to pause here and give you one example, and then I'll let you answer.

We know that a group of leading Canadian physicians and scientists have recently signed a letter calling for a nationwide circuit-breaker shutdown, and of course they point to the strategy of Australia, Taiwan, and the Atlantic bubble. They say if we had had one, we might have saved thousands of lives.

How do we adopt a nationwide circuit-breaker shutdown if we don't have the national government that can actually bring that in, and by what legislation would they do so if not the Emergencies Act?

[Dr. Gregory Marchildon]

Well, we already talked about the Canada Health Act. That's one possibility, so there are alternatives. However, even if the Emergencies Act is a viable alternative from a legal perspective, I pointed out what are more than political difficulties. These are administrative and financial difficulties, and I think those are greater impediments than are the legal impediments in the Emergencies Act.

The Emergencies Act could do some of these things. It could create a kind of a safety net. It could create a threshold, and the federal government could quite possibly have already acted on that, or it could have used other federal legislation to create that, so clearly the problem lies elsewhere.

The fact that Canada has not invoked the Emergencies Act though, I want to emphasize, is not necessarily a failure of the federal government in this federation. It also reflects the fact that in a decentralized federation, the provinces and the provincial governments bear much more weight.

One of the advantages of this is that they saw their responsibilities immediately and acted on them, whereas in the United States there were many states that were waiting for the U.S. federal government to move and to act. It did not do so, and as the weeks went on, some of these governments, like the State of New York, finally realized they had to act. We wouldn't want that kind of situation in Canada. Given what we have, it's far better that the provinces feel that the weight to act is predominantly on their shoulders.

Many other things need to be done to ensure that we have pan-Canadian actions and, second of all, that we have national standards that could be set by the federal government in a number of different ways. It should have used, for example, the leverage that it had in paying for the vaccines to set some of those national standards through an agreement, and, if that federal-provincial-territorial agreement had failed, then to act unilaterally and set those standards.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Davies.

Committee, it looks like we have a few minutes left. I propose a snapper round of two minutes per party.

If that's acceptable, we will start with Mr. Barlow, I believe, for two minutes.

Please go ahead, Mr. Barlow.

[John Barlow, Conservative, Foothills, AB]

Thank you very much, Mr. Chair.

My question is for Dr. Evans.

You were talking about doing a study on how long the immunization would last or how long the effectiveness of the vaccinations would last. That would determine when a booster was needed. Has the task force come to the result or to the acceptance that a booster will be needed? What is the metric that is being looked at to make that decision on when and if a booster will be needed?

[Dr. Timothy Evans]

A number of metrics would be used. First is looking at what we call “escape infection” and the rates of escape infection: people who have been vaccinated and the rate at which you get new infections. If that rate goes above what is the expected efficacy of the vaccine, then it may be a strong signal that immune levels are waning.

The second, as I mentioned earlier, is to identify immune measures, which, if they go below certain thresholds, would suggest that you don't have adequate immune protection. Those are called “correlates of protection”.

On both fronts, it's too early to tell. We'll need a significant amount more time, I think, before we have evidence that suggests definitively what the appropriate time for a booster is.

[John Barlow, Conservative, Foothills, AB]

You've also mentioned mixing vaccines and some study that is going to be done on that. I know that many constituents in my riding in Alberta have had the AstraZeneca vaccine for their first dose, but now we have no idea when more deliveries of AstraZeneca are going to arrive in Canada.

I'm wondering what the timeline will be for any studies on the ability to mix vaccines. Or are many of these Canadians who have the AstraZeneca first dose having to now look at two doses of another vaccine?

[Dr. Timothy Evans]

It will depend on the supply dynamics. As you've identified, there are factors that come into this which are very difficult to predict, but there's a strong likelihood that people may be faced with receiving a second vaccine that is not the same as the first. That's why we've set up a study to look at every combination possible and understand what the risks and benefits of that might be. This study has been designed, but it will be a function of what comes through on supply and what that mix-and-match looks like.

However, we are in a position to study it and understand benefits and risks.

[John Barlow, Conservative, Foothills, AB]

Thank you very much, Mr. Chair.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Barlow.

We'll go to Dr. Powlowski, please, for two minutes.

[Marcus Powlowski, Liberal, Thunder Bay—Rainy River, ON]

My question is for Mr. Culbert and Dr. Marchildon.

One thing I've found kind of perplexing in terms of the public health response to the pandemic has been the reluctance of health officers to use their powers under provincial health legislation, which gives public health officers the powers to protect the public and, in doing so, to issue various kinds of orders—for example, requiring people to self-isolate.

I think all provinces have that kind of legislation. I know that in Ontario it's the Health Protection and Promotion Act. Sections 22 and 35 are the two sections that give them the powers.

Why have public health officers in Canada been so reluctant to use this legislation, which would seem to me to have been placed for this very purpose?

[Ian Culbert]

If I may, I'll answer first.

I think it leads to the common misconception that medical officers of health and chief medical officers of health in the provinces and territories are independent. They're not. They are employees of the provincial government and therefore put under the restraints of the political leadership—the elected leadership—limits on how they actually use their legislation. There are political limits placed on them.

[Marcus Powlowski, Liberal, Thunder Bay—Rainy River, ON]

That was a very interesting response. Does that suggest you're in favour of giving more independence to the individual health officers so they can make those determinations, rather than it being a decision made by the political leaders in a province?

[Ian Culbert]

It's difficult, insomuch as medical officers of health are not elected. The electorate chooses people to make these very difficult decisions on their behalf. I think that as a result of the pandemic, people will perhaps think about these decisions differently in the future.

[Dr. Gregory Marchildon]

I think this is the same situation in the vast majority of countries; these are major decisions that are made by democratically elected bodies. The question becomes one of how much latitude you could create for public health officers, and I think there would probably be consensus that it should be limited, even if more extensive than currently.

[The Chair, Liberal, Ron McKinnon]

Thank you, Dr. Powlowski.

We'll go now to Monsieur Thériault.

Mr. Thériault, you have two minutes.

[Luc Thériault, Bloc, Montcalm, QC]

Thank you, Mr. Chair.

Mr. Marchildon, you said that when it comes to immunization, the federal government could have used that fact that it was paying for the vaccines as leverage and put standards in place.

What should it have done differently, given that there's a shortage of vaccines? Do they still need to be delivered?

However, studies on the time between doses were much less clear at first, and there is growing consensus now.

What more could the federal government have known about vaccination than Quebec, for example?

[Dr. Gregory Marchildon]

I think it's not so much about the knowledge of vaccination and the vaccination protocol as the data flowing, in terms of surveillance of individuals post vaccination.

There needs to be a pan-Canadian repository for this. The data needs to be collected on a consistent basis, provided by provincial governments to the federal government, so that you can do surveillance at a pan-Canadian level. This could have been part of the arrangement made with the provinces as part of the deal in which the federal government paid in full for the vaccine. In the past, it has paid part of the cost but not the full cost. This would have allowed for surveillance across provincial boundaries. This disease is not limited to one provincial jurisdiction.

[The Chair, Liberal, Ron McKinnon]

You have 15 seconds left, Mr. Thériault.

[Luc Thériault, Bloc, Montcalm, QC]

Thank you.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Thériault.

We'll go now to Mr. Davies.

You have two minutes, please.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you.

Dr. Marchildon, on August 4 you wrote the following in Policy Options: “If federalism is going to be mobilized to achieve urgent policy solutions, we need to challenge three incorrect assertions about our federation that get wheeled out, time and again, to obstruct needed progress.”

I'm wondering if you could tell us what those incorrect assertions are and what advice you might give us to challenge them.

[Dr. Gregory Marchildon]

Well, the first and most important is that health care is provincial jurisdiction. There's no such thing in the Constitution. It depends on the health care sector. Hospitals are provincial jurisdiction; public health is shared jurisdiction. The federal government actually has, based upon various provisions of the Constitution, more jurisdiction than the provinces when it comes to prescription drugs.

It is true that the provinces have tended to occupy most of these fields, but that does not mean that health is a provincial jurisdiction. This is an area that the provinces and the federal government need to work very closely on. There are some areas in which the federal government can act unilaterally in a national emergency, if absolutely necessary to preserve peace, order and good government in Canada, for example. There are also important roles to be played by Health Canada and the Public Health Agency of Canada in a crisis like this.

In my view, there are other problems.

The second area that I would briefly mention is that the federal government can't manage anything, or that the provinces are much more capable of managing everything on the ground. I would say that the federal government has built up expertise in managing large tax expenditure programs that involve transfers to individuals, and the provinces have clearly demonstrated administrative capacity in terms of delivering certain services. When you're dealing with a pandemic like this, it involves a mixture of both. We have seen the federal government tending to do the things it's better at, and the provinces do the things they're better at. At the same time, there were more proactive actions that could have been taken by the Government of Canada that would have allowed Canada to be in a much better position than it is today, and there are still things that can be done as vaccination proceeds.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Davies.

Thank you, committee members.

That wraps up our time for today.

I would like to thank the witnesses for sharing with us their time, their knowledge and their expertise.

I would also like to recognize in particular today the interpreters, who operate day after day in an extremely challenging environment. Today it's been somewhat of a chaotic Internet environment, so thank you all for all your dedication and conscientious effort.

Thank you, everyone, once again.

With that, we are adjourned.