Thank you, Mr. Chair.
My name is Patrick Taillon, and I am a professor in the faculty of law at the Université Laval.
I will summarize my main remarks briefly based on a very simple idea: one of the best decisions the federal government made in managing this unprecedented crisis was definitely its decision not to invoke the federal Emergencies Act, for the following reasons.
First, we can now see, particularly from a rights and freedoms perspective, that there was no need to invoke the act. We can also see how far the judiciary adapted its interpretation of rights and freedoms to our circumstances at the time. The government's decision not to use the act thus enabled it to maintain control and to let the judges do their work, while at the same time adapting that work.
Second, it is clear that, under our federalist regime, governments did not lack authority. The federal and provincial governments had all the necessary authorities in their toolbox to address the crisis. All they had to do was invent solutions that they could not yet know of at the time.
In short, we must not fall into the trap of thinking that each level of government inevitably did good and bad things and that uniform and centralized solutions would suddenly have solved all problems. On the contrary, the logic of subsidiarity, cooperation and autonomy that federalism presupposes runs somewhat contrary to this idea of uniformity. Federalism made a minimum level of experimentation possible during the crisis. No one had a magic solution, and federalism, under which the member states of a federation enjoy autonomy, enabled each state to exercise a degree of innovation.
British Columbia did some things right. Each province handled mask-wearing in its own way. The Atlantic bubble was an original idea suited to that part of the federation. As a member state of the federation, Quebec, where I come from, did good and bad things in its own way. Its curfew and the reopening of its schools in the spring of 2020 made it possible to gather data and to test a solution that was subsequently imitated by others. Quebec did the same when it decided to administer second doses of vaccine sooner than previously planned.
This degree of autonomy, experimentation and innovation in the spirit of cooperation was absolutely necessary in managing the crisis. With a combination of diversified measures, the two levels of government were able to imitate each other and adjust their game plans. Federalism, which fosters the autonomy of every member state in the federation, especially enabled each to play the role of countervailing power, which is essential in times of crisis.
At the lowest points, when nothing was working and the courts were virtually closed, newspapers were on the brink, incomes were clearly declining and parliamentary assemblies were closed, how else could we have exercised that countervailing power in Canada? What countervailing power could have protected citizens? The tensions and disputes that continued between the federal and provincial governments nevertheless bolstered citizens' trust in our institutions, to the extent that the sight of two leaders and two governments confronting and monitoring each other afforded a form of control, surveillance and countervailing power that were particularly necessary during those difficult times.
Obviously, the federal government could have done better. Its performance was partly shaped by circumstances. We can debate at length the state of necessary equipment reserves. We can say that borders should have been managed more quickly and efficiently. However, at some point, we have to accept that what was done is done. We must especially take note of mistakes that must not be repeated. On that point, the serious impact of underfunding for health definitely suggests that we could have intervened more effectively in that field and that we will have to do better in future.
It is therefore important to establish stable health funding. To do so, the federal government should either make a lasting commitment, over years, so that the provinces can rely on its participation, or else disengage and allow the provinces to use the necessary fiscal room. Whatever it does, we cannot play at yoyos or Russian roulette with health funding. It cannot be subject to circumstantial fluctuations. It must be stable.
Lastly—and this will be my final comment—as for what was done well but could have been done even better, I would say that cooperative federalism, that necessary cooperation between levels of government, could have gone further. Considering the powers it has, the federal government could have made adaptation measures available to the provinces. Consider travellers, for example. When it had to make decisions on how to manage the borders, the federal government could have played the cooperative federalism card to a greater degree. In the "Atlantic bubble", for example, borders and flights could have been shut down at the request of the provinces concerned, whereas other provinces could have established mandatory quarantines, a measure that moreover was ultimately adopted.
Uniformity is not the most suitable solution. It is an instinctive reaction that is contrary to the spirit of federalism and should be avoided. Management of the crisis required cooperation between the federal government and the provinces. It also called for respect for the autonomy of each government instead of the instinctive impulse to claim that one level of government is, by definition, better than another and thus shielded from the necessary interplay of trial and error, good and bad ideas and the competition between levels of government. That competition enabled us to secure countervailing powers, innovate and imitate each other. In that respect, I want to emphasize the importance of the autonomy of the federal government and federated entities in managing such a crisis.
Thank you.