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Colleen M. Flood is University Research Chair & Director of the Centre for Health Law, Policy & Ethics, University of Ottawa

Jane Philpott is Dean of the Faculty of Health Sciences at Queen’s University and a former cabinet minister who served in the Trudeau government

Together with Vanessa MacDonnell, Sophie Thériault and Sridhar Venkatapuram, the authors are the co-editors of Vulnerable: The Law, Policy & Ethics of COVID-19

At a time when COVID-19 is still causing troubling outbreaks and dozens of Canadian deaths every week, it can be hard to focus public attention on the seemingly banal topic of good governance. But good governance is critical in responding to a pandemic, both in the initial stages and as evidence grows on the efficacy of different preventative measures. Simply put, good gov­ernance requires clear lines of responsibility: to be effective, governments and other institutions and actors need to know who will do what and when.

In Canada, however, good governance on health issues is complicated by jurisdictional questions. While Canada aspires to “cooperative federalism,” the dysfunction in federal-provincial relations in the public health sphere was laid bare by the SARS outbreak in 2003. Because the Ontario government either could not or would not supply key data about the outbreak, the federal government was unable to report country-level data to the World Health Organization (WHO). This resulted in the WHO issuing a travel ban.

Post-SARS, several significant changes were made to public health governance, notably the creation of the Public Health Agency of Canada (PHAC) and pan-Canadian committees sup­porting better coordination and sharing of data. As COVID-19 has unfolded, Canada’s performance was strengthened by these reforms; yet serious vulnerabilities remain.

First, our federal government—unlike equivalents in all other high-income countries—has not declared COVID-19 a national emergency and/or imposed a national lockdown. Some say this decision is appropriately respectful of provincial jurisdiction. But the pandemic has also highlighted the limitations of the federal Emergencies Act, which is so prescribed in terms of the powers it creates and when it can be used that it is largely useless in the context of COVID-19 or a similar public health disaster. While there is room for disagreement about when it is appropriate to declare a national emergency, most would surely agree that the federal government should have this power for the limited time period of a pandemic if the measures taken by a province or provinces are insufficient to protect Canadians.

A second vulnerability is despite the international humiliation of Canada’s inability to report on SARS cases, the federal government still does not receive the public health data from the provinces required for epidemiological modelling. This hampers federal efforts to forecast optimal containment and recovery strategies. PHAC lacks authority to compel data from provincial, territorial, and private sector partners, even where national public health is at stake. Its ability to produce timely national surveillance on the health status of Canadians is severely limited by the lack of strong federal public health legislation requiring cooperation and sharing at least for the duration of a pandemic.

Third, there is both strength and vulnerability in the various approaches taken by governments across Canada. Variation can be a strength as governments may be responding to differences in needs and contexts. So, for example, there are quite different risks for Indigenous peoples, and appropriately Indigenous govern­ments are taking greater precautionary measures than other orders of govern­ments. However, we also need to ask whether vastly different death rates per capita across the country are truly the results of different contexts or are otherwise to be attributed to poor policy choices or policy implementation. Big variation in precautionary measures taken by various orders of govern­ment across Canada creates challenges in communicating the importance of different measures. If this is so important, why is it not required in a neighboring municipality? Although these many dif­ferences may well be justified by different contexts, the end result is a cacophony of different rules, making it hard for people to understand what is required of them and perhaps contributing to compliance fatigue in the longer run.

This is not to say that decision-making or results would have been better if there was but one govern­mental decision maker at the federal level. At a minimum, however, there needs to be a central conduit for clear information on the kinds of precautionary measures that all orders of government should be taking and the costs and consequences of not doing so. In the post-mortem inquiries that will inevitably flow in the wake of the pandemic, we must reinforce and improve our public health structures to ensure that inter-governmental structures are clear; that the bases for decision-making by governments at all levels is transparent to the public and based on the best possible scientific evidence available at the date of the decision; that there is a “whole of system and whole of society” approach embracing, for example, long-term care and community care, and with a particular lens on protecting marginalized groups such as the frail elderly, prisoners and migrant workers; and that, critically, data is shared across all orders of Canadian governments in real-time.

It is hard to have predicted last December 2019 that we would have been experiencing a life-time pandemic event by March 2020. Good governance requires Canadian governments to prepare for the next such event: to hope for the best but plan for the worst to protect our people and our economy.

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