Health Committee on May 7th, 2021

[The Chair, Liberal, Ron McKinnon]

I call this meeting to order. Welcome, everyone, to meeting number 35 of the House of Commons Standing Committee on Health.

The committee is meeting today to study the emergency situation facing Canadians in light of the COVID-19 pandemic, and specifically, examining Canada's national emergency response landscape.

I'd like to welcome the witnesses. As individuals, we have Dr. Lorian Hardcastle, associate professor, Faculty of Law and Cumming School of Medicine at the University of Calgary; and Dr. Wesley Wark. From the Ontario COVID-19 Science Advisory Table, we have Dr. Brian Schwartz, co-chair.

With that, I will invite the witnesses to make their statements.

By the way, I will display these cards. The yellow one is to indicate your time is almost up, typically a minute before, although sometimes I lose track. The red one is when your time is fully up. If you see the red card, you don't have to stop instantly, but please try to wrap up.

Thank you very much.

We'll start with Dr. Hardcastle, for six minutes.

[Dr. Lorian Hardcastle, Associate Professor, Faculty of Law and Cumming School of Medicine, University of Calgary, As an Individual]

Before I start, I want to thank you all for the opportunity to speak with the committee today.

I'll begin by first discussing the specific legal avenues open to the federal government before turning to some more general comments on the role of the federal government in the pandemic.

There's often a perception that health, including public health, is a matter of provincial jurisdiction, subject to narrow exceptions such as the Quarantine Act. This misguided perception and the hands-off approach that the federal government often takes with health is likely the result of the provinces being the ones who deliver most health care services, along with some political issues stemming from the funding of health care services and some politics around the Canada Health Act.

In fact, the federal government plays an important role in public health. The Supreme Court of Canada has repeatedly acknowledged that health is an area of overlapping jurisdictions. Furthermore, at this point, COVID-19 is not solely a health issue. What perhaps started as a health issue has also now become the largest social and economic issue of most of our lives. It has affected all facets of the lives of Canadians.

With regard to the specific legal avenues open to the federal government, the first and the one that's received the most attention is the Emergencies Act, which empowers the federal government to act in response to a public welfare emergency. This is defined to include a disease that results, or may result, in a danger to life or property, social disruption or a breakdown in the flow of goods or services. All of these things we've seen, to some extent, with COVID.

When a public welfare emergency is declared, the Governor in Council can issue orders and regulations on a number of matters, including restricting travel, directing persons to render aid, regulating essential goods and establishing hospitals. These powers may have been used, for example, to deal with the spread of COVID over provincial borders when the variants emerged, or to set up hospitals to serve as testing sites when many provinces were struggling in that regard. Although there is a consultation requirement under this legislation, the federal government does not need provincial approval to act.

The second option would be to draft COVID-specific legislation. Unlike the COVID-specific legislation that's already been drafted, which is primarily financial in nature, it would be open for the federal government to draft COVID-specific legislation that focuses more on the public health aspects of this issue.

This could be done by relying on their powers to legislate with respect to peace, order and good government, pursuant to section 91 of the Constitution. This power enables the federal government to act in response to emergencies or national concerns. We've heard from the Supreme Court of Canada that a pestilence would no doubt qualify under POGG. Although it is outdated terminology, of course, COVID certainly constitutes a pestilence.

Third, and finally, the federal government might have considered using its powers under section 11.1 of the Department of Health Act to issue interim orders on public health matters. Although this avenue hasn't received nearly the amount of scholarly commentary as the Emergencies Act or POGG, I understand that the committee heard about the Department of Health Act at its last meeting.

Turning now to some more general comments on the role of the federal government in a pandemic, I would first note that it's surprising to me that, in arguably the largest emergency this country has seen since World War II, we haven't seen the federal government turn to the exceptional powers granted under the Emergencies Act or pass COVID-specific legislation grounded in the POGG power. If the Emergencies Act was not used here, I am not sure when it would ever be used.

Not only have these powers not been used by the federal government, but they seem to have received very little vigorous consideration. Typically, what I've heard from the Prime Minister and others on this issue are rather vague comments as to the Emergencies Act remaining on the table or to the effect that they're considering all options, with very little transparency for the public in terms of why these powers aren't being used. I would want more transparency around that.

Does the federal government view the problem as a legal one, such that the Emergencies Act is inadequate to address these issues? If so, then I would wonder why the Emergencies Act wasn't fixed in the last year so that it was ready for the arrival of the variants and the third wave.

I'm concerned that the real reason we haven't seen greater federal action is political. We have heard from the premiers that they didn't want the federal government to invoke the Emergencies Act, saying that they could handle it on their own. Premier Moe said they could “effectively manage” it. This has clearly not been the case. Saskatchewan has not effectively managed this, but nor have provinces like Quebec, with the long-term care issues, or Alberta, which is experiencing the worst numbers in North America.

The provinces have relied on the federal government for financial support and preparing supplies, but the federal government's role in actually limiting the spread of COVID beyond that has been quite limited, with their focus being on financial fallout. I know there's a political cost to enacting public health restrictions, but I think trying to walk a political middle ground to try to keep the provinces happy and keep everyone else happy has the effect of undermining those rules. I would want to see the federal government transparently consider the use of the emergencies power and make decisions based on what's in the interest of Canadians rather than the politics of federal-provincial relations.

Thank you.

[The Chair, Liberal, Ron McKinnon]

Thank you, Dr. Hardcastle.

We'll go now to Dr. Wesley Wark.

Go ahead, please. You have six minutes.

[Dr. Wesley K. Wark, As an Individual]

Mr. Chair and members of the committee, thank you for this invitation to appear before the committee in its study of the current health emergency.

Many things have gone badly with our preparedness and response to the COVID-19 pandemic. The crucial first thing that went wrong was our early warning and risk assessment system. This, I think, must be understood and fixed. Early warning and accurate risk assessments are vital to preparedness and response. They buy precious time for informed decision-making and public communications. They save lives and treasure.

Canada had ample opportunity for proper, early appreciation of the threat posed by COVID-19. Because of what I call an epic failure of systems and imagination, we missed many significant signals as COVID began its relentless march across China, and then globally.

Canada's early warning system was not able to function effectively. The first GPHIN special report regarding a viral pneumonia outbreak in Wuhan, China, was issued on January 1, 2020, but no GPHIN alerts meant for a wider global clientele were authorized. Thereafter, GPHIN issued a series of daily and increasingly voluminous global media scan reports that were not geared for value for Canadian decision-makers.

In the period between January 7 and March 16, 2020, PHAC produced six risk assessments on COVID-19. I analyzed these reports in detail while serving as an expert consultant to the Auditor General. Until the final PHAC risk assessment on March 16, the agency delivered a consistently reassuring message that COVID-19 posed a low risk to Canada and Canadians. As the Auditor General found in her damning report, the methodology employed by PHAC in preparing these risk assessments was deeply flawed and untested. The risk assessments failed to consider forward-looking pandemic risk, and risk assessments were not discussed or integrated into decision-making.

Now, PHAC has accepted the Auditor General's report, as you know, and has promised a lessons-learned review, but it has also punted this review to December 2022 at the earliest.

To understand how we set ourselves up for such an abysmal failure, we have, I think, to look back to the period after the SARS crisis. In April 2004, with the SARS crisis still fresh on its mind, the government published Canada's first-ever national security policy called “Securing an Open Society”. That policy stated:

Going forward, the Government intends to take all necessary measures to fully integrate its approach to public health emergencies with the national security agenda. ...the public health dimension will figure prominently in the Government's integrated threat assessments....

Now, regretfully, none of this happened in the years after 2004.

What Canada must now build is a system for health intelligence that understands and utilizes the model of the classic intelligence cycle to achieve the following: timely, all-source collection; rigorous, high-quality assessment; reporting for impact on decision-making. When COVID-19 struck, not a single element of this system was in place within the federal government. We must also reinforce an international dimension, including full and timely sharing of health intelligence with the WHO as per the International Health Regulations.

A future system of the kind I'm advocating cannot operate within a PHAC silo. To escape from a siloed approach, we need to do a number of things. We need to produce a guiding national security strategy. We need, I think, to create a national security council structure at the centre of government to consider security threats, including health security, holistically. We need to build a health intelligence fusion or watch centre, and we need to ensure contestability by reaching out to experts and stakeholders. These are all concepts being explored in a path-breaking research project on reimagining a Canadian national security strategy for the 21st century, which is being led by the Centre for International Governance Innovation, CIGI, in Waterloo.

Our closest allies understand the need to do things differently. Britain has established, as of May 2020, a Joint Biosecurity Centre to better manage and use information and assessments to inform decision-making. President Biden issued a national security memorandum in January 2021, which calls for the establishment of an inter-agency national centre for epidemic forecasting and outbreak analytics to modernize global early warning.

Canada, alongside its allies, could be a world leader in global epidemic intelligence, but this will take innovative thinking, commitment to meaningful change—including organizational change—and urgency. I hope the committee will share my concern about these matters and lend its weight to this vital reform agenda.

Thank you.

[The Chair, Liberal, Ron McKinnon]

Thank you.

We will go now to Dr. Schwartz, please.

Go ahead for six minutes.

[Dr. Brian Schwartz, Co-Chair, Ontario Science Advisory Table]

Thank you, Mr. Chair.

Thank you for your invitation to speak with the committee today. I'm appearing here as a co-chair of the Ontario COVID-19 Science Advisory Table, a mostly volunteer group of 54 scientists drawn from across medical, scientific and mathematics disciplines.

We are not part of the provincial government. We operate entirely independently. While some of our members, including me, are public health professionals who may also work for government agencies, we do not operate as part of the public health apparatus of Ontario. We don't issue public health orders or recommendations. We don't advise communities on public health practices.

Our sole job is to seek out and analyze the scientific evidence that will help the government, public health and health professionals, and Ontarians fight the battle against COVID-19. We regularly brief different parts of the Government of Ontario. We make all of our work available to the public.

Today I am happy to share our thinking about what the scientific evidence tells us about the situation in Ontario, but I would ask the committee to bear a few things in mind as we have this discussion.

The first is that as an independent science table, it is not appropriate for us to comment on government policy. We can tell you what the numbers are and what they mean. We can say what the evidence tells us about measures that give us the best chance against COVID. We can tell you whether we see those things happening. However, it's not appropriate for us to review, criticize or assess any government's performance.

Second, our focus is firmly forward. I am a physician, and while many of the scientists on the table are not physicians, we think of our service to the population in the way a doctor might think of service to a patient. Arguments about the past don't belong at the bedside. Only the forward view helps the patient.

Finally, science is a process. Evidence evolves as the facts on the ground change. We're learning something new every day. There's a great deal more we don't know. In science, uncertainty isn't a failure. Uncertainty is part of the process.

With that, I will summarize a document we prepared last month, entitled “Fighting COVID-19 in Ontario: The Way Forward”. It represents our clearest thinking on what the current evidence says Ontario needs to do right now.

Since its formation in July, the Ontario science advisory table has operated according to three principles. One, we are guided by the most current scientific evidence. Two, we are transparent. All of our science briefs and presentations are publicly posted. Three, we are independent. While we generally advise the provincial government of what we say publicly, no government body or office vets or controls our scientific content or communications in any way.

More than one year into the COVID-19 pandemic, we know that the following six things will reduce transmission, protect our health care system and allow us to reopen safely as soon as possible.

The first thing is essential workplaces only. Some indoor workplaces have to remain open, but the list of what stays open must be truly essential while strictly enforcing COVID-19 safety measures. For example, essential workers must wear masks at all times while working indoors or when close to others outdoors, and must be supported.

The second is paying essential workers to stay home when they are sick or exposed or need time to get vaccinated. SARS-CoV-2 spreads when people go to work sick or after they've been exposed to the virus. Workers often do this because they have no choice. They must feed their families and pay their rent. An emergency benefit will help limit the spread if it offers appropriate income, is easily accessible and immediately paid, and for the duration of the pandemic is available to these essential workers when they are sick, exposed or need time off to get tested or vaccinated.

The third thing is accelerating the vaccination of essential workers and those who live in hot spots. Vaccines are essential in slowing the pandemic. We need to allocate as many doses as possible to hot-spot neighbourhoods, vulnerable populations, and essential workers; accelerate the distribution; and make it easier for at-risk groups to get vaccinated.

The fourth is limiting mobility. This means restricting movement between and within provinces. COVID-19 is not a single pandemic, because different regions of Ontario and Canada face distinct problems. Moving around the country may create new hot spots, because the variants of concern are so transmissible. People need to stay as much as possible in their local communities.

The fifth thing is focusing on public health guidance that really works. This means not gathering indoors with people from outside one’s household. It means people can spend time with each other outdoors, distancing two metres, wearing masks and keeping hands clean.

The final one is keeping people safely connected. Maintaining social connection and outdoor activity is important to our overall physical and mental health. This means allowing small groups of people from different households to meet outside with masking and two-metre distancing. It means keeping playgrounds open and encouraging safe outdoor activities.

What won't work are policies that harm or neglect racialized, marginalized and other vulnerable populations. They will not be effective against a disease that already affects these groups disproportionately. For these reasons, pandemic policies should be examined through an equity lens.

In conclusion, there's no trade-off between economic, social and health priorities in the midst of a pandemic when it’s at its peak, as it has been recently in Ontario and some of the other provinces. The fastest way to get this disease under control, as quickly as we can, is to do it together.

Thank you.

[The Chair, Liberal, Ron McKinnon]

Thank you, Dr. Schwartz.

We will begin our questions with Ms. Rempel Garner, please, for six minutes.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Thank you, Chair.

My questions will be for you, Dr. Wark. I share your concern. You know, there's going to be a lot of time for inquiry, but we have to be getting things right now. Looking to change only in December 2022 is too late. I note that one of the significant variants of concern from India was identified in October of last year, yet Canada.... We're just so reactionary on emerging threats, even in the middle of a pandemic.

However, I digress. I wanted to get to recommendations on what we could do to fix some of these gaps right now and then going forward, so that we can include them in our report. The Auditor General's report talking about the risk to Canada being low and not looking at the forward-looking risk was very damning, as you said. What could we do differently right now?

I'm wondering if there's some sort of.... First of all, there's no centralized way of collecting intelligence. You talked about that. I think we need to remedy that, number one. Second, we need to somehow put that information into a very clear risk assessment system that can be used to assess a wide variety of pathogenic risks—almost like a Defcon-level system—so that it can be clearly communicated to the public. Third, associated with each of those risk levels would be measures that the government would undertake, be it flight bans or travel advisories or quarantine measures or whatnot.

That's roughly what's been in my head, reading the Auditor General's report, and I'm wondering if there's anything we could do right now, if it is reorganizing that way or not, to make sure we're not vulnerable, particularly to variants.

[Dr. Wesley K. Wark]

Ms. Rempel Garner, thank you for your question.

I suppose I should address the chair, but that's always seemed to me a strange formality. My apologies.

I think you make an excellent point, but I would say two things in response to the question of what we can do now. One is that there are a lot of, if you like, ad hoc possibilities for immediate application of the kinds of capabilities and talent that exist in the federal government.

The security intelligence community is extremely well versed in collecting all-source information and doing professional risk assessments. The problem was that, as I said, PHAC was siloed from that activity and that expertise. In an ad hoc fashion, the thing we need to see being done—perhaps it is being done behind the walls of the security intelligence community—is simply ensuring that the expertise and set of capabilities from the variety of agencies in the Canadian security intelligence system are available to PHAC for an ongoing risk assessment process.

I'm not even aware of the extent to which risk assessments may continue to be done. They were essentially stopped in March 2020 after it was realized that the pandemic had arrived. Now, perhaps they've been restarted. I don't know; I've not seen anything in the public domain on that.

There should certainly be an ongoing risk assessment capability. If we'd had one, it might have helped us prepare for second and third waves and variants and all the things we know of.

The last thing I would say is we just have to be careful to make sure that whatever ad hoc measures we take in our scramble to deal with an emergency don't get baked in as permanent measures. We have to keep our minds on what we ultimately want to achieve.

That's why I think there are some very important structural and strategic things that we need to undertake. A national security strategy.... We need a national security council structure, finally, at the heart of government. We need to have a whole-of-government intelligence collection and assessment capability to deal with not just health emergencies, but a range of non-traditional threats that we're now confronting in Canada.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Just to re-emphasize, as a legislator I see that one of the gaps is taking even that limited information we have right now and porting it into some sort of framework for action. I don't think the ad hoc nature is just limited to intelligence-gathering. I think it's also limited to porting it into consistent and cohesive action and then also monitoring the efficacy of that.

Would you characterize that as the right assessment of the situation right now?

[Dr. Wesley K. Wark]

I'm afraid I would have to say that seems to be the case, certainly up to the period in which we have some public documentation on how PHAC handled the emergency. Senior executives in the Public Health Agency of Canada and across the government have to—and I'm sure are now—taking the ongoing threat presented by COVID very seriously, in ways they weren't at the beginning, but—

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Are you aware of any of those measures that are happening right now? Has there been any change since the Auditor General's report came out?

[Dr. Wesley K. Wark]

I'm not aware in detail, Ms. Rempel. I know there have been enormous changes in the senior leadership at PHAC. Clearly, some of those changes in the executive ranks at PHAC were designed very specifically to bring expertise from the security intelligence community into the agency. I think that's a good thing.

Organizationally—

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

I just have 30 seconds left.

If there was a country that you think did this well that the committee could be looking at for best practices, what country would that be?

[Dr. Wesley K. Wark]

Some obvious candidates—and they'll probably be familiar to many members of the committee—are among our Five Eyes partners. Australia and New Zealand come immediately to mind. That's not necessarily because they had better intelligence capabilities or better structures, but for some reason they were just more alert to the past history of pandemics and things like SARS, which we should have been alert to. Those are a couple of countries.

Some of the other countries in the region, such as Taiwan and Korea for example, certainly did better and were much better prepared to deal with COVID when it reached out beyond the Chinese border. We have a lot of lessons to learn from our global partners.

Very briefly, one of the things that troubles me about our response is that we weren't attempting to learn those lessons in the early stages of COVID at all.

[The Chair, Liberal, Ron McKinnon]

Thank you, Ms. Rempel Garner.

We'll go now to Ms. O'Connell.

Ms. O'Connell, please go ahead for six minutes.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Thank you, Mr. Chair.

My questions are for Dr. Schwartz.

First, let me say thank you to you and your colleagues. I'm sure that at times this feels like a thankless job, but we certainly appreciate your expertise in coming together during this difficult time.

I appreciate your outlining very clearly the six priority areas you're talking about in terms of moving forward. I took note of them.

In that vein, my question is around the biggest risks you're seeing in Ontario right now. We have data that suggests more than 60% of outbreaks are from workplaces and education—43% are from workplaces and 21% from educational settings. In that vein, and with the six priority areas you mentioned, where do you see the biggest threat of spread in cases that are putting the strain on our health care right now in Ontario?

[Dr. Brian Schwartz]

First of all, thank you for your kind words, Ms. O'Connell.

I think the biggest threat moving forward is, in fact, related to crowded workplaces and crowded workplaces in hot spots. In particular, certainly less in education and more in workplaces involved with distribution and transportation, we have workers in those workplaces who live in hot spots, in crowded conditions and with other workers in multi-generational households, particularly in northwest Toronto and Peel.

Because of that, we have recommended, and the province is rolling out, very targeted vaccines to those areas. We're very gratified that those recommendations, which are based on some of the modelling we did, will—we hope—start being effective in reducing the transmission in those settings.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Thank you for that.

In my previous life, I was also in politics, but at the municipal and regional levels in Ontario. We had some areas of responsibility over health through our local health agencies. Part of that responsibility is communication and educating residents on how they can help prevent the spread in this instance and, really, education on risks.

If we're looking at workplaces right now as the number one concern, I noticed your six priority areas don't cover borders. The kind of political.... I fully recognize your comments off the top. I'm not asking you to criticize a political decision, but if these are the areas of concern, and workplaces are the biggest threat, when it comes to the resources and the efforts to communicate with Ontarians in this case, would it not serve the broader public health measures to invest in resources that focus on the hot-spot areas or focus on the areas of concern to also arm and educate the public in those areas that are most affected right now? In putting communication priority on things like the borders, which account in Ontario for less than 2% of transmission, aren't we missing an opportunity to educate and help Canadians in stopping the spread? Is that a missed opportunity to educate our communities?

[Dr. Brian Schwartz]

If I understand, your question—and correct me if I'm wrong—is really about communicating the risks and the interventions that might mitigate those risks in those specific areas that are hot spots. The answer is that, while it's not part of that six-point structure, it's certainly a connector to those points, because we have.... Certainly, it is challenging to get into many of the communities. Again, the greater Toronto area is a very diverse population with many different needs. It really also speaks to things like vaccine acceptance. It's important to communicate risk in language that people understand—literally in languages people understand—as well as with the cultural sensitivity that's needed to communicate those risks and interventions in ways that are appropriate for the communities they have access to, and that they will accept.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Thank you.

I'm switching gears just a bit, because I don't have much time left, but long-term care in Ontario is something very concerning. My riding in particular was hit very hard, and it was devastating. Early on we were told that everything that could be done would be done to protect long-term care through a second and now third wave.

In your professional view, do you think everything has been done that could be done to protect our residents in long-term care?

[Dr. Brian Schwartz]

Well, I think one thing that has been done is the targeted rollout of vaccine to elderly individuals, particularly in long-term care, and we've seen a tremendous effect of that program that's been very positive. I hope other interventions like reducing crowding within long-term care, increasing personal protection for health care workers and, again, looking at that as a very important workplace to reduce transmission, will be treated as very important.

[The Chair, Liberal, Ron McKinnon]

Thank you, Ms. O'Connell.

I now give the floor to Ms. Gaudreau for six minutes.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

Thank you very much, Mr. Chair.

I'm very pleased to be with you today replacing my hon. colleague Mr. Thériault.

The two messages we heard gave me pause. Now that we have experienced this pandemic, others will follow. That is what I understand.

I also wondered about the role of the provinces and Quebec. While you were speaking, I looked up the word “confederation”, and it means an alliance of independent states. During a pandemic, the independent states forming a confederation must be consulted. Section 25 of the Emergencies Act actually stipulates that the lieutenant governors must be consulted before a state of emergency is declared.

I would like the witnesses to explain what consultations were held and what the outcome was. Logically, a health transfer should have resulted from the consultations, to address the critical needs during the pandemic.

A situation like this must not occur again. Obviously, we need to respect each other's powers, but each state must have the necessary tools and means, depending on factors like culture, language or territory. As I have heard so clearly, things vary greatly.

First, I invite Professor Hardcastle to comment on what can be imposed on all provinces.

[Dr. Lorian Hardcastle]

It depends what you're talking about imposing. Certainly some things might be more palatable than others for the provinces to accept federal involvement in.

One of the things, though, that comes to my mind as being the most obvious role for a federal government in this space would be—