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.