Amir Attaran is a biomedical scientist, a lawyer, and a professor in the Faculty of Law and the School of Epidemiology and Public Health at the University of Ottawa.
Prime Minister Trudeau pondered his options. His advisors told him that a national crisis was sweeping across Canada, consuming its economy and shattering lives. They told him it was spinning out of control; there was no denying it. Solemnly the advisors recommended the federal government impose strict, national restrictions, even overriding the provinces if necessary. The premiers would howl, of course, but the advisors said the prime minister had to face down the emergency. He would pay a price for doing the right thing.
It was not an easy decision, least of all for Trudeau, whose name was synonymous with—some would say tainted by—the War Measures Act and the October Crisis.
But the prime minister was resolute. He reached into the federal government’s seldom used emergency powers, and pushed out a law to fight the crisis.
It was 1975, the prime minister was Pierre Trudeau, and the law was the Anti-Inflation Act.
Forty-five years ago, Trudeau the elder used the federal government’s emergency powers to control prices, wages, and other branches of the economy to wrestle down an inflation rate topping 10 per cent. Unlike today, nobody was dying, and hospitals were not overflowing. The premiers did indeed howl, but Trudeau silenced them by asking the Supreme Court if his Anti-Inflation Act was constitutional. The judges agreed it was.
That was the last time the federal government’s emergency powers were used—several years after the October Crisis.
Today’s lethal COVID-19 emergency, which has killed 11,000 Canadians with no end in sight, is a disaster far worse than inflation—yet Pierre Trudeau’s son appears paralyzed. Back in the spring Justin Trudeau floated using his emergency powers, but immediately backed off when Canada’s premiers objected.
I blame that reaction on Canada’s reflexive, often historically ignorant punditry on questions of the federation. The same talking heads that paint the War Measures Act and the October Crisis as a political bogeyman never mention that Pierre Trudeau subsequently used the Constitution’s emergency powers for inflation—and got away with it. They lack perspective that Canada used emergency powers throughout history, especially during or after war, not for the purpose of tearing the country apart, but for holding it together.
And so we come to the point that Justin Trudeau now says the Emergencies Act (which is the rebranded version of the War Measures Act) is unnecessary for a pandemic.
What a mistake. A prime minister cannot protect Canadians during an emergency by amputating his emergency powers, any more than the fire department can fight blazes by leaving its trucks parked in the garage.
I think if Pierre Trudeau were alive today, he would find this intolerable. Trudeau père used emergency powers for mere inflation, so he certainly would do likewise for a killer pandemic. But he would have found a way that left him exposed least to the lashes of Parliament and the premiers.
So let me explain, just possibly, how he might have done it.
Minimum national standards
Pierre Trudeau would have seen at once the heart of Canada’s failure: the provinces’ clumsy, on-again, off-again dance with COVID-19, which has triggered a second wave across most of the country, and shattered any pretence of national unity. Federal coordination, he would have reasoned, is essential to rein in the provinces’ unstrategic, anything-goes response.
For example, look at Alberta, where there are 15,000 per cent more active COVID-19 cases than in Nova Scotia—yet Edmonton lacks disease controls found in Halifax. Alberta’s appalling government does not injure only Albertans, but seeds infection (and, eventually, death) upon Canadians elsewhere.
Since breeding disease and killing the neighbours is not a choice any provincial government is entitled to make, it demands a federal response.
There are limits. The federal government cannot fight COVID-19 directly. It has no doctors. It has no nurses. It has no hospitals. It has no care homes. Even if Ottawa wanted to usurp the provinces and nationalize the COVID-19 response—which it should not—it is impossible.
But the federal government can make national rules, specifically minimum national standards for COVID-19 control that the provinces must play by. That would be a breakthrough, because Alberta, British Columbia, Manitoba, Ontario, Saskatchewan and Quebec all failed by unwisely doing less than the minimum to curb a second wave.
Put a standard, legally binding “floor” under the provinces—a “backstop” of disease control which kicks in only when they fail—and Ottawa would save lives.
Ottawa is good at setting standards. Look at the Canada Health Act—another Pierre Trudeau invention—which sets minimum national standards for health care. Without that federal law, the free health care enjoyed by every Canadian, regardless of their province, would not exist. We have national medicare only because the federal government set that standard.
Why is this example important? Because it shows that in our Constitution and federal system, health is a shared legal responsibility, no more provincial than federal.
This fact may surprise many Canadians, gaslit by politicians (especially in Quebec) swearing that “health is provincial.” But that is unicorn-grade hooey—a fiction. In the words of the Supreme Court, which knows a thing or two about the Constitution and federalism:
“Health is subject to overlapping federal and provincial jurisdiction, and the provinces’ power to legislate in this field does not exclude Parliament’s authority to target conduct that constitutes a public health evil.”
An evil, one supposes, like COVID-19.
Fortunately Parliament has already exercised its authority to deal with pandemics. In 1996 it passed the Department of Health Act, which delegates the federal health minister (currently Patty Hajdu) to issue emergency orders whenever “immediate action is required to deal with a significant risk, direct or indirect, to health.”
In other words, Parliament gave the health minister carte blanche to write minimum national standards against emergencies like COVID-19. But in doing so, it also gifted Justin Trudeau a new, pretty alternative to the Emergencies Act—one without its historical baggage, and that does not require Trudeau to consult the premiers or Parliament.
All the government needs to do is pony up an emergency order using section 11.1 of the Department of Health Act. To show decency to the provinces it ought to ask the Supreme Court if that order is constitutional, and it very likely would be, because of precedents dating back seven decades that say “pestilence, no doubt” counts as a federal emergency.
Now The Legal Stuff
To make this easy on the Prime Minister, I’ve drafted an emergency order already—a sample that is close enough to baked that the health minister could order it into law almost instantly, after tweaking it to her liking. You will find it below, and although it is legalese I promise it is simple enough for anyone to understand.
Several friends in epidemiology and law helped me put it together, though any mistakes or bad calls are my fault. Hopefully others can take my work and improve on it, too.
Every law needs a purpose, which is stated up front:
The purpose of this Order is to set minimum standards of COVID-19 control for protecting Canadians against risks to health, to reduce Canada’s contribution to the global COVID-19 pandemic, and to mitigate the social, cultural, and economic harm of the pandemic emergency for the Peace, Order, and good Government of Canada.
The “Peace, Order, and good Government” power in the Constitution is the bedrock of this order, and all federal emergency laws. One condition: the Supreme Court says emergencies must be temporary not to bleed all life out of the provinces. Fortunately, the Department of Health Act gives only 14 days of life to an order. Cabinet can extend that up to a year before the order automatically dies—but happily a year is enough to battle COVID-19.
I said the emergency order should be a backstop: unnoticeable, inactive, but which becomes legally binding as soon as a province goes off the rails. The emergency order uses the term “designated province”—one which is in such serious trouble that the emergency order’s disease control rules kick in. A province becomes designated if it crosses either of two danger thresholds: either more than 20 COVID-19 patients per 100,000 population, or over 5 per cent of patients testing positive, measured over a week to smooth out little bumps.
Why designate provinces using scientific thresholds? Because science, unlike politics, is a neutral referee: unable to punish an “enemy” province, or to cut slack to a “friendly” province. By removing the decision from political hands, provinces are safe from the federal government abusing its emergency powers.
But if a province blows its COVID-19 control, crosses a danger threshold, and becomes designated, the emergency order goes from being unnoticeable to fierce. The goal is to crush the uncontrolled disease wave—and instantly, because dithering and delay is what catapulted the province across the danger threshold to begin with. If the premiers dislike being commanded by a federal order to pivot on a dime, tough, because they had their chance at flattening that disease wave and blew it.
Here is what happens, and it is not pretty, but it works.
First, masks. Everyone must wear one in indoor public places, except the very young, or those who are medically unable. And the mask refuseniks? They can be arrested and prosecuted.
Second, gatherings. All private gatherings at residences stop totally: no dinner parties, no visiting the neighbours, nothing. Your company is your family or housemates. Public gatherings become severely restricted: no more than 10 people outdoors, or five people indoors, except for essential businesses which are not restricted. The numbers are tight to stanch new infections, though adequate for most small-but-not-essential businesses to do curbside deliveries or restaurants to do take-out. Naturally, everyone at a gathering must keep two metres distance, too.
Third, curfew. Nobody goes out between 9:00 p.m. and 5:00 a.m., unless it is for an essential purpose, or they do essential work. Of course this is annoying, but since prohibited gatherings often happen at night, this makes it harder to have them.
Fourth, the “essential” exceptions are pretty few. For example, health care, animal care, child care, homeless shelters, groceries, energy fuel, public utilities, infrastructure maintenance, agriculture, journalism, government, and other necessaries of life. Most of the “nice” things in life get put on hold until the province is back below the danger thresholds.
Why is the emergency order so fierce? Because by hammering new infections down hard, the painful path to below the danger thresholds passes faster. Taking a slower path only inflicts longer harm to mental health and businesses, more of which would fail irrevocably. In life, as in epidemiology, it is a truth universally acknowledged: just tear off the damn Band-Aid and get it over with.
Ought the provincial governments to swallow this? Yes, not that they get a choice under the Constitution. But fairness still matters, so the emergency order lets provinces request an exemption from these minimum national standards if they “maintain measures to control the spread of … infection that are similarly stringent.” The federal health minister decides whether that stringency condition is met, and if the province disagrees with her, the emergency order gives the province access to a specially managed, fast-track lawsuit in the Federal Court.
That’s the whole package: a tidy, quick legal way for Justin Trudeau to use the federal government’s emergency powers—but modestly—only as a backstop when provinces cross the danger threshold—and temporarily—for as little as 14 days not to do violence to Canada’s federation—and justly—because the invitation to judicial review is always available.
If the premiers baulk at so little federal intrusion, they would seem churlish, even selfish, for choosing their egotistical attachment to power over the national safety and the well-being of Canadians.
Whether the Prime Minister finds his courage, and the premiers find their equanimity, to agree that a once-in-a-century pandemic is a national emergency needing national standards, are matters for tomorrow’s history books. Let all Canadians—all the fearful, locked down, unemployed, or just suffering—watch closely what they do.
The draft emergency order
DEPARTMENT OF HEALTH ACT
COVID-19 Emergency Control Measures Order #1
The Minister of Health, pursuant to subsection 11.1(1) of the Department of Health Act, makes the annexed COVID-19 Emergency Control Measures Order #1.
* * *
COVID-19 Emergency Control Measures Order #1
1 The following definitions apply in this Order.
designated province means a province where the presence of SARS-CoV-2 infection is detected in any consecutive 7 day period:
(a) at an incidence of over 20 cases per 100,000 persons; or
(b) at an average rate of over 5 per cent of tests performed.
essential facility means a place, business, or undertaking that is designated by the Minister in Schedule 1;
household means a home, dwelling, rooming house, care home, shelter for socially vulnerable persons, or other accommodation used as a residence, and includes the property on which it is situate;
mask means a barrier of at least three layers of air-permeable material attached directly over the nose and mouth.
medically exempt means a person having a disability or medical condition that is diagnosed by a practitioner to be incompatible with wearing a mask;
minister means the Minister of Health.
practitioner means a physician or nurse practitioner registered or otherwise entitled under the laws of a province or territory to practise medicine.
public place means a place other than a household, and includes the property of premises of a business, or the common areas of a multi-unit residence.
public transit means a common carrier of passenger transit, including but not limited to a bus, subway, tram, ferry, train, or aircraft.
2 The purpose of this Order is to set minimum standards of COVID-19 control for protecting Canadians against risks to health, to reduce Canada’s contribution to the global COVID-19 pandemic, and to mitigate the social, cultural, and economic harm of the pandemic emergency for the Peace, Order, and good Government of Canada.
Wearing of Masks
3 (1) Every person over 2 years of age within Canada shall wear a mask in an indoor public place or on public transit, unless medically exempt.
Duty to Accommodate
(2) The owner or operator of an indoor public place or public transit shall accommodate the needs of any person who is medically exempt, unless it is shown that doing so would impose undue hardship on the owner or operator considering health, safety and cost;
(3) Despite subsection (1), a person required to wear a mask may remove it temporarily and for no longer than necessary to:
(a) consume food or drink;
(b) attend or respond to a medical emergency; or
(c) establish their identity.
Restrictions on Gatherings
4 (1) No person in a designated province shall arrange or participate in, or attempt to arrange or participate in a gathering:
(a) of over 10 persons in an outdoor public place, or over 5 persons in an indoor public place; or
(b) a gathering in a household, other than a gathering of its residents.
(2) No owner or operator of a public place in a designated province shall provide the use of its business or facility for a prohibited gathering.
(3) Despite subsection (1), a gathering is permitted in:
(a) an essential facility;
(b) a public place or household where necessary to attend to or respond to an emergency affecting persons, animals, or property for the duration of the emergency; or
(c) a household to provide health care, personal care, or child care services.
(4) No person at a gathering shall remain, for longer than an incidental period, closer than 2 metres to any other person who is not a resident of the same household, unless wearing a mask or medically exempt.
Restrictions on Mobility
5 (1) No resident of a designated province shall travel outside his or her residence between the hours of 9:00 pm and 5:00 am, except to travel to or from an essential facility, or to provide health care, personal care, or child care services.
6 (1) The Minister may, by Order, amend the list of essential facilities in Schedule 1.
7 (1) The Minister may, upon the request of a designated province, exempt that province from the application of this Order by notice in the Canada Gazette, if that province maintains measures to control the spread of SARS-CoV-2 infection that are similarly stringent as those in sections 3 through 5.
(2) The Minister may, when exempting a province under subsection (1), impose conditions requiring the province to maintain any measure in the manner that she designates;
(3) An application for judicial review of a decision under this section may be brought by application pursuant to section 18.1 of the Federal Courts Act, and shall be a specially managed proceeding.
8 This Order is binding on Her Majesty in right of Canada or a province.
A facility maintained in a province for the provision of emergency services, including but not limited to fire, policing, paramedical services;
A hospital, clinic, laboratory, or pharmacy where health care services are provided;
A facility where dentistry, optometry, or extended health care services within the meaning of the Canada Health Act are provided;
A hospital, clinic, or laboratory where services are provided for animal health under the law of a province;
A facility that provides health or personal care services, shelter, or the necessaries of life to socially vulnerable persons;
A place of business carrying out the sale of necessaries of life, including but not limited to grocery stores, hardware stores, animal feed stores, clothing or shoe stores, and stores whose principal business is the repair of used goods;
A facility for the generation, processing, transmission, or sale of energy or fuel;
A facility for the provision of public utilities, including but not limited to water and sewerage, telecommunications, and garbage collection;
A facility that supplies, receives, or transacts goods in the food or agricultural supply chain;
A facility for the transportation of passengers or cargoes;
A facility for making, publishing, or broadcasting journalism;
A facility for the operations of government;
A facility for the maintenance or repair of infrastructure that is essential to the continued operation of any other essential facility;
[Note: other facilities may be added to this list, which ought not to be taken as complete.]
Amir Attaran would like to thank the following colleagues for their wisdom, advice, and help reviewing this draft: Raywat Deonandan, David Fisman, Joshua Ginsberg, Lorian Hardcastle, Adam Houston, and Ryan Imgrund. All errors or bad decisions are not their fault, but mine.