Health Committee on May 10th, 2021

[Rob Stewart]

According to our data, the incidence is minimal. In fact, roughly only 1% of travellers have contracted COVID. The Public Health Agency of Canada has very strict quarantine measures. Travellers have to be tested before they arrive at the border and then they are tested twice more once they are in the country.

[Luc Thériault, Bloc, Montcalm, QC]

You would agree that if the measures were so strict and effective then there would be fewer cases of variants and epidemics tied to those countries.

That being said, again with better border controls, what is Public Safety's position on a vaccine passport?

[Rob Stewart]

We will certainly need a vaccine passport for Canadians to be able to travel abroad and to know the vaccination status of people arriving in Canada.

We are in talks with the provinces and territories to find a way to determine whether people have been immunized.

[Luc Thériault, Bloc, Montcalm, QC]

You say vaccination status. What do you mean by that?

[Rob Stewart]

I am talking about a type of certification.

[Luc Thériault, Bloc, Montcalm, QC]

Okay.

You expect good communications between the territories, Quebec and the provinces in order to get the information as proof of vaccination. Is that it?

[Rob Stewart]

Yes. It is in the public interest of all Canadians so that they may travel. I am confident that with all the collaboration we are seeing we will find a way to determine vaccination status electronically.

[Luc Thériault, Bloc, Montcalm, QC]

You're recommending the vaccine passport for better border control. Is that correct?

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Thériault.

[Luc Thériault, Bloc, Montcalm, QC]

That's what I gather.

[Rob Stewart]

Pardon? I didn't hear you.

[Luc Thériault, Bloc, Montcalm, QC]

You're recommending the vaccine passport for better border control. Is that correct?

[Rob Stewart]

Yes, absolutely.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Thériault.

We'll go now to Mr. Davies.

Mr. Davies, please go ahead for six minutes.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chair.

First off, on behalf of all of my colleagues, I'd like to express our best wishes to Mr. Shugart for a speedy recovery and good health.

Madame Tremblay, I'm going to read to you an excerpt from what parliamentarians were told in 1987 when they were reviewing Canada's emergency legislation landscape from a federal point of view. It said:

The federal government has primary and ultimate responsibility to provide for the safety and security of Canadians during national emergencies. Its constitutional jurisdiction over such national emergencies stems from the power of Parliament to legislate for the “Peace, Order and Good Government of Canada” and the emergency doctrine which has evolved from it.

That doctrine invests the Parliament of Canada, during times of national crisis, with temporary plenary jurisdiction to legislate on all matters, including those normally reserved exclusively to the provinces. It operates, as Mr. Justice Beetz of the Supreme Court of Canada stated in the Anti-Inflation Reference, as a “partial and temporary alteration of the division of powers between Parliament and the provincial legislatures”...which gives to the Parliament of Canada in times of national crisis, “concurrent and paramount jurisdiction over matters which would normally fall within exclusive provincial jurisdiction”...he also observed, “the power of Parliament to make laws in a great crisis knows no limits other than those which are dictated by the nature of the crisis”....

Is that your understanding of the constitutional authority of the federal government in a time of national emergency?

[Christyne Tremblay]

Thank you for the question.

The premiers discussed the matter and agreed that we were indeed in a national pandemic situation. Since the federal government wanted to prepare for every option, it considered using the Emergencies Act, but it had to meet three criteria—

[Don Davies, NDP, Vancouver Kingsway, BC]

Madame Tremblay, I'm sorry; I'm not there yet. I'm just asking about the general constitutional authority.

Do you accept what I read to you as an accurate description of the federal government's constitutional authority?

[Christyne Tremblay]

On matters of constitutional authority, I would like to ask my colleague Jodie van Dieen to answer the question.

[Jodie van Dieen, Counsel to the Clerk of the Privy Council and Assistant Deputy Minister, Privy Council Office Legal Services Sector, Privy Council Office]

That's a fair reflection of the federal government's legislative authority under peace, order and good government in an emergency context.

The Emergencies Act was a piece of legislation passed, relying upon the peace, order and good government emergency branch power.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Ms. van Dieen. I appreciate it.

I'll direct my questions to you, then.

Parliamentarians were also told the following:

Where the scale of the disaster is such that it affects more than one province, or where it occurs on territory within the federal domain, the federal government will have primary if not exclusive responsibility to provide for public safety.

My question for you is this. The scale of the disaster has obviously affected more than one province. I think we all can acknowledge that. However, it seems that the federal government has taken the opposite view, that the provinces have primary responsibility to act, with the federal government playing a supportive role, if asked. Why is that?

[Jodie van Dieen]

The Emergencies Act embodies the federal-provincial-territorial collaboration and working together, and, in fact, requires consultation with the provinces and territories, and specifically requires that invoking the Emergencies Act for a national emergency only occurs when other federal, provincial or territorial legislative measures are not sufficient.

In addition, in subsection 8(3) of the Emergencies Act, it says that where a declaration of emergency were to have been made, following such a declaration, it is, of course, anticipated that the provinces and territories would continue to act within their legislative spheres and that the federal government's actions should not unduly impair or intrude upon those actions.

I would say that the Supreme Court, since 1987, has very much spoken of co-operative federalism as a key constitutional concept, and I would say that the Emergencies Act, as passed by Parliament, reflects co-operative federalism and federal-provincial-territorial collaboration.

[Don Davies, NDP, Vancouver Kingsway, BC]

I want to give you a quote from Dr. Hardcastle who spoke to this committee last week. She said:

It's surprising to me that in inarguably the largest emergency this country has seen since World War II that we haven't seen the federal government turn to the exceptional powers granted under the Emergencies Act, or to pass COVID specific legislation grounded in the POGG power. If the Emergencies Act was not used here, I'm not sure when it would ever be used.

My question is this. Given that Canada has now experienced three waves of the pandemic, the Canadian Armed Forces have had to be called in three times to provinces, Alberta has the worst record in North America, and there are severe serious outbreaks in Ontario and Manitoba, why hasn't the federal government used any of its emergency powers to date?

As well, is it your view that Ontario and Alberta are managing this pandemic well?

I don't know who wants to field that.

Madame Tremblay?

[Christyne Tremblay]

Thank you very much for the question.

My colleague Jodie van Dieen laid out the principle of cooperative federalism. We generally believe that the premiers must work together, that the provinces must use their capacities together, that the federal government must provide all the tools at its disposal and that together they can tackle the pandemic. It is truly a spirit of collaboration that has fuelled every level of government during this pandemic.

We had the chance to hear from a regional representative, who also described this collaborative dynamic between every level of government. The Emergencies Act states that it is to be used only if the situation cannot be managed otherwise and the provinces are unable to deal with the situation alone, without support.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Davies.

Committee, that wraps up our time for this panel. We're going to have to suspend and go to the next panel—

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Chair, we do have a few minutes, and we did start awfully late, and we have the acting Clerk of the Privy Council here. I would respectfully suggest we have one more round of, say, one minute each because we didn't get a full hour.