{"id":121650,"date":"2020-11-27T20:53:41","date_gmt":"2020-11-27T17:53:41","guid":{"rendered":"https:\/\/en.buradabiliyorum.com\/trudeau-needs-a-covid-19-emergency-law-heres-how-to-do-it\/"},"modified":"2020-11-27T20:53:41","modified_gmt":"2020-11-27T17:53:41","slug":"trudeau-needs-a-covid-19-emergency-law-heres-how-to-do-it","status":"publish","type":"post","link":"https:\/\/buradabiliyorum.com\/en\/trudeau-needs-a-covid-19-emergency-law-heres-how-to-do-it\/","title":{"rendered":"#Trudeau needs a COVID-19 Emergency Law. Here’s how to do it."},"content":{"rendered":"

“#Trudeau needs a COVID-19 Emergency Law. Here’s how to do it.<\/strong>”<\/p>\n

\n 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.<\/em><\/p>\n

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.<\/span><\/p>\n

It was not an easy decision, least of all for Trudeau, whose name was synonymous with\u2014some would say tainted by\u2014the <\/span>War Measures Act<\/span><\/i> and the October Crisis.<\/span><\/p>\n

But the Prime Minister was resolute. He reached into the federal government\u2019s seldom used emergency powers, and pushed out a law to fight the crisis.<\/span><\/p>\n

It was 1975, the Prime Minister was Pierre Trudeau, and the law was the <\/span>Anti-Inflation Act<\/span><\/i>.<\/span><\/p>\n

Forty-five years ago, Trudeau the elder used the federal government\u2019s 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 <\/span>Anti-Inflation Act<\/span><\/i> was constitutional. The judges agreed it was.\u00a0\u00a0<\/span><\/p>\n

That was the last time the federal government\u2019s emergency powers were used\u2014several years after the October Crisis.\u00a0\u00a0<\/span><\/p>\n

Today\u2019s lethal COVID-19 emergency, which has killed 11,000 Canadians with no end in sight, is a disaster far worse than inflation\u2014yet Pierre Trudeau\u2019s son app<\/a>ears paralyzed. Back in the spring Justin Trudeau floated using his emergency powers, but immedia<\/a>tely backed off when Canada\u2019s premiers objected.\u00a0\u00a0<\/span><\/p>\n

I blame that reaction on Canada\u2019s reflexive, often historically ignorant punditry on questions of the federation. The same talking heads that paint the <\/span>War Measures Act<\/span><\/i> and the October Crisis as a political bogeyman never mention that Pierre Trudeau subsequently used the Constitution\u2019s emergency powers for inflation\u2014and 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.<\/span><\/p>\n

And so we come to the point that Justin Trudeau now says the <\/span>Emergencies Act<\/span><\/i> (which is the rebranded version of the <\/span>War Measures Act) <\/span><\/i>is unnecessary<\/a> for a pandemic.<\/span><\/p>\n

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.\u00a0\u00a0\u00a0<\/span><\/p>\n

I think if Pierre Trudeau were alive today, he would find this intolerable. Trudeau <\/span>p\u00e8re<\/span><\/i> used emergency powers for mere <\/span>inflation<\/span><\/i>, so he certainly would do likewise for a killer pandemic.\u00a0 But he would have found a way that left him exposed least to the lashes of Parliament and the premiers.\u00a0\u00a0<\/span><\/p>\n

So let me explain, just possibly, how he might have done it.<\/span><\/p>\n

Minimum National Standards<\/b><\/p>\n

Pierre Trudeau would have seen at once the heart of Canada\u2019s failure: the provinces\u2019 clumsy, on-again, off-again dance with COVID-19, which has triggered a second wave across most of the country, and shattered any pretense of national unity. Federal coordination, he would have reasoned, is essential to reign in the provinces\u2019 unstrategic, anything-goes response.<\/span><\/p>\n

For example, look at Alberta, where there are 15,000 per cent more active COVID-19 cases than in Nova Scotia\u2014yet Edmonton lacks disease controls found in Halifax. Alberta\u2019s appalling government does not injure only Albertans, but seeds infection (and, eventually, death) upon Canadians elsewhere.\u00a0<\/span><\/p>\n

Since breeding disease and killing the neighbours is not a choice any provincial government is entitled to make, it demands a federal response.<\/span><\/p>\n

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\u2014which it should not\u2014it is impossible.<\/span><\/p>\n

But the federal government can make national rules, specifically <\/span>minimum national standards<\/span><\/i> 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.\u00a0\u00a0<\/span><\/p>\n

Put a standard, legally-binding \u201cfloor\u201d under the provinces\u2014a \u201cbackstop\u201d of disease control which kicks only when they fail\u2014and Ottawa would save lives.<\/span><\/p>\n

Ottawa is good at setting standards. Look at the <\/span>Canada Health Act\u2014<\/span><\/i>another Pierre Trudeau invention\u2014which 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.<\/span><\/p>\n

Why is this example important?\u00a0 Because it shows that in our Constitution and federal system, health is a <\/span>shared legal responsibility<\/span><\/i>, no more provincial than federal.\u00a0\u00a0<\/span><\/p>\n

This fact may surprise many Canadians, gaslit by politicians (especially in Quebec) swearing that \u201chealth is provincial\u201d. But that is unicorn-grade hooey\u2014a fiction. In the words of the Supreme Court<\/a>, which knows a thing or two about the Constitution and federalism:<\/span><\/p>\n

\u201cHealth is subject to overlapping federal and provincial jurisdiction, and the provinces\u2019 power to legislate in this field does not exclude Parliament\u2019s authority to target conduct that constitutes a public health evil.\u201d<\/span><\/i><\/p>\n

An evil, one supposes, like COVID-19.<\/span><\/p>\n

Fortunately Parliament has already exercised its authority to deal with pandemics. In 1996 it passed the <\/span>Department of Health Act<\/span><\/a> which delegates the federal Health Minister (currently Patty Hajdu) to issue emergency orders whenever \u201cimmediate action is required to deal with a significant risk, direct or indirect, to health\u201d.\u00a0\u00a0<\/span><\/p>\n

In other words, Parliament gave the Health Minister <\/span>carte blanche<\/span><\/i> 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 <\/span>Emergencies Act\u2014<\/span><\/i>one without its historical baggage, and that does not require Trudeau to consult the premiers or Parliament.\u00a0\u00a0<\/span><\/p>\n

All the government needs to do is pony up an emergency order using section 11.1 of the <\/span>Department of Health Act<\/span><\/i>.\u00a0 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<\/a> that say \u201cpestilence, no doubt\u201d counts as a federal emergency.\u00a0\u00a0<\/span><\/p>\n

Now The Legal Stuff<\/b><\/p>\n

To make this easy on the Prime Minister, I\u2019ve drafted an emergency order already\u2014a 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.\u00a0\u00a0<\/span><\/p>\n

Several friends in epidemiology and law helped me put it together, though any mistakes or bad calls are my fault.\u00a0 Hopefully others can take my work and improve on it too.<\/span><\/p>\n

Every law needs a purpose, which is stated up front:<\/span><\/p>\n

The purpose of this Order is to set minimum standards of COVID-19 control for protecting Canadians against risks to health, to reduce Canada\u2019s 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.<\/span><\/i><\/p>\n

The \u201cPeace, Order, and good Government\u201d 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 <\/span>Department of Health Act<\/span><\/i> gives only 14 days of life to an order. Cabinet can extend that up to a year before the order automatically dies\u2014but happily a year is enough to battle COVID-19.<\/span><\/p>\n

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 \u201cdesignated province\u201d\u2014one which is in such serious trouble that the emergency order\u2019s disease control rules kick in.\u00a0 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.\u00a0\u00a0<\/span><\/p>\n

Why designate provinces using scientific thresholds? Because science<\/a>, unlike politics, is a neutral referee: unable to punish an \u201cenemy\u201d province, or to cut slack to a \u201cfriendly\u201d province. By removing the decision from political hands, provinces are safe from the federal government abusing its emergency powers.\u00a0<\/span><\/p>\n

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\u2014and 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.<\/p>\n

Here is what happens, and it is not pretty, but it works.<\/span><\/p>\n

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.<\/span><\/p>\n

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 5 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 meters distance too.<\/p>\n

Third, curfew. Nobody goes out between 9:00 pm and 5:00 am, 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.<\/span><\/p>\n

Fourth, the \u201cessential\u201d 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.\u00a0 Most of the \u201cnice\u201d things in life get put on hold until the province is back below the danger thresholds.\u00a0\u00a0<\/span><\/p>\n

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 BandAid and get it over with.<\/span><\/p>\n

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 \u201cmaintain measures to control the spread of \u2026 infection that are similarly stringent\u201d. 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.<\/span><\/p>\n

That\u2019s the whole package: a tidy, quick legal way for Justin Trudeau to use the federal government\u2019s emergency powers\u2014but modestly\u2014only as a backstop when provinces cross the danger threshold\u2014and temporarily\u2014for as little as 14 days not to do violence to Canada\u2019s federation\u2014and justly\u2014because the invitation to judicial review is always available.\u00a0<\/span><\/p>\n

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.<\/p>\n

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\u2019s history books.\u00a0 Let all Canadians\u2014all the fearful, locked down, unemployed, or just suffering\u2014watch closely what they do.<\/p>\n

The draft emergency order<\/strong><\/p>\n

DEPARTMENT OF HEALTH ACT<\/p>\n

COVID-19 Emergency Control Measures Order #1<\/strong><\/p>\n

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.<\/p>\n

* * *<\/p>\n

COVID-19 Emergency Control Measures Order #1<\/strong><\/p>\n

Interpretation<\/strong><\/p>\n

Definitions<\/strong><\/p>\n

1<\/strong> The following definitions apply in this Order.<\/p>\n

designated province<\/strong> means a province where the presence of SARS-CoV-2 infection is detected in any consecutive 7 day period:<\/p>\n