Health Committee on May 7th, 2021

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

Give me one or two examples, please.

[Dr. Lorian Hardcastle]

Sure. The travel issue is one very obvious example. We had B.C. saying they didn't know if they could prohibit travel across the Alberta border. They needed legal advice. They weren't sure. Meanwhile, on one side of the border, we have Banff, which is one of Canada's hot spots, and on the B.C. side, there are much lower rates.

To me, an obvious role for the federal government, which they could still do now as opposed to looking backwards and saying here's what you should have done a year ago, is to use the Emergencies Act to deal with that travel issue, as provinces have vastly different rates of COVID and that's how variants spread.

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

This pandemic was a first. If we were to go through another one, we would have to do it in a completely different way, especially in terms of consultations. What we went through, in my opinion, was far too focused on parliamentary sparring.

Before I finish, I'd like to ask Mr. Wark a question.

You mentioned New Zealand, Australia, Korea, Taiwan. Why do you think so highly of those countries? Do you have examples of what they have done to justify your esteem?

[Dr. Wesley K. Wark]

Very quickly, I think the key to the responses of the countries that have proved best able to deal with COVID-19 quickly out of the gate—countries such as Australia, New Zealand, Taiwan, and Korea—was first of all that they had the capacity to take the threat seriously and understand the seriousness of the risk. That was a capacity that linked public health experts with government decision-making. I think culturally, to be honest, in all those countries, it was rooted in their experience of SARS, a memory that stuck.

There were a whole host of issues, but one of the key things they did, and probably a key measure at the outset, was early and very strict border closures.

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

Excellent.

How much time do I have left, Mr. Chair?

[The Chair, Liberal, Ron McKinnon]

You have 30 seconds left.

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

Excellent.

My question is for Mr. Schwartz.

Mr. Schwartz, you made it clear that the issues during a health crisis vary greatly. My understanding is that action is needed, but does it have to be consistent across the country? We will see how our analysis of the current crisis turns out. To get through another crisis, if ever one were to occur, we will need solutions.

It's absolutely necessary to respect the variables in the different provinces. Do you agree with me on that?

[Dr. Brian Schwartz]

The short answer is that there are different communities and different provinces that have different levels of the pandemic, and I think the key is twofold, Mr. Chair, if I could have about 20 more seconds. One is to reduce mobility in general and reduce numbers of contacts in general. The second is to reduce mobility from hot spots into low-transmission areas, because, particularly with the variants of concern, they can see them very quickly result in quick community transmission.

[The Chair, Liberal, Ron McKinnon]

Thank you, Ms. Gaudreau.

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

Thank you for indulging me, Mr. Chair.

[The Chair, Liberal, Ron McKinnon]

We will go now to Mr. Davies.

Mr. Davies, go ahead for six minutes, please.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you.

Dr. Hardcastle, picking up on Dr. Schwartz's last comment, I think it's fairly common knowledge now that jurisdictions around the world, as Dr. Wark has pointed out, that were able to contain travel with hard stops had the greatest success in reducing transmission. We saw that in Canada with the early closures in Atlantic Canada.

I'm looking at the Emergencies Act, section 8. The very first power given to the federal government, were it to invoke the Emergencies Act, is “the regulation or prohibition of travel to, from or within any specified area, where necessary for the protection of the health or safety of individuals”.

My question is, is it only the federal government that has the constitutional power to regulate travel interprovincially and between provinces and territories? If they didn't do it, would any province have the ability to do it?

[Dr. Lorian Hardcastle]

The provinces can regulate travel within their provinces. Many have that in their public health act as an emergency power that can be done in a public health emergency. Many have it in their emergencies act provincially, but there does seem to be this reticence among some to use it.

For example, B.C. really was concerned about using it to keep Albertans out, so there seems to be.... Once that Albertan is in B.C., then they have the power, potentially, to exclude them, but there seems to be some concern about the legality of that, whereas with the federal government, I think there wouldn't be that same concern, because there's no question that they could do it federally.

I think there are problems with the variants moving from one province to the other. We had a situation in Alberta where one traveller came from B.C. to Alberta. There were 35 cases, at least one death and two ICU admissions, so these provincial borders pose real threats.

[Don Davies, NDP, Vancouver Kingsway, BC]

I guess, to put a finer point on it, I'm just wondering about the constitutional jurisdiction to regulate travel intraprovincially, within the province, and interprovincially. Paragraph 8(1)(a) gives the federal government the power to put in travel restrictions interprovincially. Is that a fair reading of the act? Am I reading it correctly?

[Dr. Lorian Hardcastle]

It is. I think where the provinces have struggled is that they know they can do it intraprovincially, but it's not clear what that means when it's right at the border, when you have somebody crossing over right at the border.

We know that the Atlantic travel ban has been the subject of litigation, but only on the charter front. It was never tested on the basis of division of power.

[Don Davies, NDP, Vancouver Kingsway, BC]

Of the several concerns that have been raised by the media—sometimes by the public, sometimes by the government—about the invocation of the Emergencies Act, one of them is, I think, the spectre of the former War Measures Act and its impact on civil liberties. Are there any protections or provisions in the Emergencies Act that speak to protecting civil liberties and might give Canadians comfort?

[Dr. Lorian Hardcastle]

Many of the public health measures we see right now raise those kinds of civil liberties issues. It's not clear how the federal government doing those sorts of things versus the provinces doing those sorts of things jeopardizes civil liberties more. All of this, of course, is subject to the charter. Government actions are subject to the charter. That is going to be the protection for your civil liberties.

The other thing, though, the Emergencies Act has is that things that occur under the Emergencies Act are actually the subject of parliamentary debate. There is that level of accountability. There are more mechanisms of accountability within the Emergencies Act than there are within the provincial public health acts, where you see extensive delegation to chief medical officers of health. There's very little accountability there.

[Don Davies, NDP, Vancouver Kingsway, BC]

My reading of the Emergencies Act is that it was designed, of course, in the mid-eighties, after the Charter of Rights and Freedoms. When I read the debates that surrounded the creation of the Emergencies Act, two things seem to have been present in the minds of parliamentarians at that time. One was the fact that the War Measures Act, when it was invoked in 1970, was explicitly not subject to the Canadian Bill of Rights or any charter. Second of all, it didn't require any parliamentary oversight. It gave unlimited powers to the cabinet to do whatever they wanted, and for any time period as well.

Are there provisions in the Emergencies Act that deal with giving parliamentary oversight, time-limiting the powers, and subjecting the Emergencies Act to the overriding superiority of the charter?

[Dr. Lorian Hardcastle]

Yes. Absolutely there are provisions around that. The declaration of the emergency is time-limited and has to be renewed. That helps with that. There is also parliamentary oversight in the Emergencies Act that doesn't exist with, as I say, some of the provincial public health rules that have been enacted and that wasn't present in the previous War Measures Act. Then, of course, there is the charter, so there are those measures of accountability that I think don't exist as much within some of the provinces and that didn't exist within the War Measures Act.

[The Chair, Liberal, Ron McKinnon]

Thank you. That ends round one. We'll now start round two.

We're short on time, but we'll try to have a shortened round two, with three-minute slots for the Conservatives and Liberals and a minute and a half for the Bloc and NDP.

Mr. Barlow, please go ahead for three minutes.

[John Barlow, Conservative, Foothills, AB]

Thank you very much, Mr. Chair.

Mr. Wark, our focus today is talking about the responsibilities between the provinces and territories and the federal government. Part of the Auditor General's report stated that PHAC was supposed to do a national pandemic simulation in 2019. That actually would have happened before the COVID pandemic.

What difference would it have made had PHAC held that simulation to identify the capacity of provinces and territories to handle a pandemic and maybe address some of the obstacles that we've certainly seen over the last 18 months?

[Dr. Wesley K. Wark]

Mr. Barlow, that's an excellent question. I suppose it's a rhetorical question, in a way. I would just add one point. PHAC had been in the process of planning a national simulation for a public health emergency for nine years, between 2010 and 2019, and hadn't pulled one off. I think that speaks to the key question of how seriously they might have taken such a simulation even if they had conducted it.

I can't really speak to a simulation that they didn't conduct. Looking forward, it will be very important, and I think this is well understood, that we plan for a future pandemic risk. One way you can do that, in terms of ensuring preparedness and understanding gaps, is to do very regular systemic simulations of a variety of kinds.

[John Barlow, Conservative, Foothills, AB]

Thank you.

Next, you mentioned the global public health intelligence network and how that wasn't working up to capacity. Again, this is a role that the federal government should have played when it comes to identifying a pandemic and putting out those warnings to the provinces and territories. Can you maybe go into a bit of detail? I know you have only a minute or so, but what happened with GPHIN that it wasn't working up to its capacity? What difference could that have made?

[Dr. Wesley K. Wark]

That's a great question. I don't really have an answer for you. I'm very much hoping that the independent panel the health minister has struck to look into this question will get to the bottom of it. Their interim report suggested that they hadn't been able—at that stage, when that interim report was prepared—to fully understand why the GPHIN alert system had been put on hold, which it had. They confirmed that reality, which we learned about through Globe and Mail investigative reporting.

I think it speaks to a larger, frankly, cultural problem in the Public Health Agency of Canada, which is that it took its sights off global health early warning and didn't feel this was a priority. For that reason, GPHIN was kind of put on the blocks. The risk assessment process wasn't properly instituted and staffed and resourced and fully understood.

This speaks to the significance of a real cultural change that needs to take place at the Public Health Agency of Canada, alongside much greater integration between health security practices and the national security community, which was exactly what was called for in 2004 and not implemented.

[John Barlow, Conservative, Foothills, AB]

Thank you very much. I appreciate it.

Thanks, Mr. Chair.