By Colleen M. Flood, Teresa Scassa
The Prime Minister is called upon almost daily to explain why the federal government has not invoked the Emergency Act. Canadians perceive the COVID-19 pandemic to be an emergency and rightly so. The problem is that the Act can only be employed when an emergency rises above the ability of any one province to cope with the situation and there is, as a consequence, a risk to other provinces.
The mere fact that there are different approaches to the pandemic across the country is not by itself sufficient to trigger the Act.
As the pandemic unfolds it has been clear that our provinces are not able to ensure sufficient testing for COVID-19. Without this, there is no hope of notifying all those who have been exposed and, in turn, testing and – crucially – isolating them too, if positive.
Other countries, such as Taiwan and South Korea, have had success with taming COVID-19 this way. It is only through this method that we can hope to eradicate nests of infection. Otherwise, lock-down and social isolation measures will stalk us for months to come, wreaking unsustainable havoc on the economy and social and cultural life.
The provinces’ inability to achieve high levels of testing and tracing collectively from coast to coast arguably is a sufficient ground for the federal government to trigger the Emergencies Act.
The World Health Organization has urged countries to “isolate, test, treat & trace.” The powers that the federal government has under the Act include the “establishment of emergency shelters and hospitals.” This would allow Canada to act swiftly to establish additional testing sites to support hospitals, deploying military and other public servants, as well as medical and nursing students, and possibly volunteers to supplement the already overtaxed health care workforce. The government could further establish testing sites in rural remote and northern areas.
Once a person tests positive and has been assigned appropriate care, the next step will be to trace and follow up with everyone the person has come in contact with. Trying to do this the old-school way of calling folks up and talking to them about where, when and who has already proven too slow for the fast-moving virus.
In contrast, South Korea accessed people’s cell phone data to track their whereabouts in the days before they tested positive. Then, tracers used the data on their phones to send messages to individuals whose phone data revealed they had been in the same spaces. The messages said: “You need to be tested, immediately, to save lives.”
Under the Act, the federal government could use the power to require, use or dispose of “property” to access data held by telecommunications companies. In Canada, not everybody has a cell phone, but close to 90 per cent do, and this approach could complement traditional tracing methods.
The next hurdle would be the federal privacy legislation, Personal Information Protection and Electronic Documents Act (PIPEDA), which prohibits companies from disclosing personal data without consent. It would be necessary to pass a new law — temporarily and only for the purpose of fighting COVID-19 — to permit this. This law would, in turn, have to comply with the Charter of Rights and Freedoms.
To succeed here, the federal government would need to show strong evidence of the need to ramp up testing and contact tracing. The Chief Public Health Officer would have to consider the imperative for testing and tracing but also consider whether the disease is so wide-spread that wide-spread contact tracing, which works well with discrete chains of infection, may not have the desired effect.
The federal government would also need to show it had implemented the strongest privacy protections they could in the circumstances, including limiting collection of data to COVID-19-related purposes, for a specific period, providing safeguards for the use and disposal of the data, and ensuring consultation and possible oversight by the Privacy Commissioner.
It is better for the federal government to do this well and do it right for all Canadians rather than to permit differences across provinces, particularly as tracing those who may have been infected may involve crossing provincial boundaries. Whatever the federal government does in this space would require significant interactions and synergies between provincial governments and local public health units across the country.
Teresa Scassa is Canada Research Chair in Information Law and Policy at the University of Ottawa.
RIGHT: Colleen M. Flood is Director of the Centre for Health Law, Policy and Ethics and University Research Chair at the University of Ottawa.
