key: cord-0935652-qfdkh89l
authors: Srikanth Reddy, K.; Kumar Chattu, Vijay; Wilson, Kumanan
title: Canada’s legal preparedness against the COVID‐19 Pandemic: A scoping review of federal laws and regulations
date: 2021-09-02
journal: Can Public Adm
DOI: 10.1111/capa.12433
sha: 7fb47126ac8b41a09b5df32ef95d5a8f2129996b
doc_id: 935652
cord_uid: qfdkh89l

As the world continues to grapple with the COVID‐19 pandemic, the preparedness of governments to respond to it will likely undergo review. A key component is the legislative capacity and authority that governments had in place or could rapidly introduce to address the social, economic and health consequences of the emergency. We review Canada’s legal preparedness for public health emergencies and the use of federal legislation to address the pandemic. We provide an overview of the concept of legal preparedness, summarize the federal statutes, regulations and orders enacted, and analyze the coherence of federal activity and its relevance to provinces, territories and international health regulations. We determine that the federal government has relied on spending power rather than constitutional authority over public health or existing legislation on influencing the course of the pandemic.

On January 30, 2020, the World Health Organisation (WHO) declared the COVID-19 outbreak a public health emergency of international concern (PHEIC), for the sixth time since the revised International Health Regulations (IHR) came into force in 2005 (WHO 2016). Canada confirmed its first case of COVID-19 related to travel in Wuhan, China, on January 25, 2020, and on March 9, reported its first COVID-19 death. The Canadian government recognized the COVID-19 pandemic as a serious health threat, and the risk to Canadians was considered "high" (Government of Canada 2020j).

Canada's COVID-19 pandemic preparedness and response are guided by the Canadian Pandemic Influenza Preparedness guiding principles and approaches (Henry 2018 ; Government of Canada 2020a). These principles were based on the lessons learned from past events, particularly the severe acute respiratory syndrome (SARS) outbreak in 2003. They include-1) collaboration, 2) evidence-informed decision making, 3) proportionality, 4) flexibility, 5) a precautionary approach, 6) use of established practices and systems and lastly 7) ethical decision making.

The federal government's approach to managing public health security issues has largely centered upon a collaborative federalism framework. With constitutional authority being divided the federal government has sought to work in partnership with its provincial/territorial partners. This approach has had characteristics strengths, namely respect for jurisdictional autonomy and joint decision-making, as well as weaknesses, the inability to finalize information sharing agreements or developing pan-Canadian surveillance initiatives. The emergence of a pandemic accentuates the strengths and weaknesses of the federal approach (Wilson 2001) .

The country's COVID-19 pandemic preparedness and response are evolving as the disease unfolds domestically and globally. The federal government legislated biomedical, social, economic and welfare measures to contain the transmission of the coronavirus with the Canadian provinces and territories to minimize the impact of the pandemic on the Canadian population. In this article, we review the use of federal legislation to address the COVID-19 pandemic. We provide an overview of the concept of legal preparedness, summarize the federal statutes, regulations and orders enacted, and analyze the coherence of federal activity and its relevance to provinces and territories and the IHR.

Legal preparedness against the COVID-19 Pandemic respond to specified health threats and emergencies" such as the COVID-19 pandemic (Moulton et al. 2003) . Of late, laws or legal authorities were found to be the foundation for public health preparedness, as exemplified by the SARS outbreak in 2003 (Van Wagner 2008 and H1NI influenza pandemic in 2009 (DiGirolamo 2009 . Legal preparedness has continued to gain recognition as a critical component of a comprehensive public health preparedness for any public health emergencies triggered by either infectious disease outbreaks or other health threats (Moulton et al. 2003 ). An essential aspect of legal preparedness is a firm understanding by all those involved in the pandemic response of who has what power and when they have that power. Many times, the answers will be different depending on the state, and even the locality (DiGirolamo 2009). And, the critical legal issues involved in pandemic preparedness and response, include social distancing concerns, mutual aid and liability concerns, and allocation of scares resources (DiGirolamo 2009).

Conceptually, public health legal preparedness is a subset of the broader public health preparedness and can be defined as attainment by the public health system (of a community, a state, the nation, to the global community) of legal benchmarks essential to the preparedness of the public health system. It essentially involves four core elements-laws, competences, information, and coordination (Moulton et al. 2003) . At the national level, legal preparedness for a pandemic is within the scope of national law and unique to national sovereign contexts. On the contrary, at the international level, the legal preparedness of a pandemic is determined by international law-a body of rules established by custom or treaty recognized by nations as binding in their relations with one another. For legal preparedness of a pandemic at the international level, the IHR (2005) is the legally binding instrument of international law which aims "to prevent, to protect against, control, and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade" (WHO 2016). The IHR outline specific requirements for countries to develop capacities to detect, respond and report emerging threats with their borders. Many of these responsibilities fall within the domain of regional governments. As the IHR (2005) is approved by federal or national governments, they are required to take necessary measures such as, when necessary, enacting legislation to ensure compliance. As the IHR (2005) is approved by federal or national governments, they are required to take necessary measures such as, when necessary, enacting legislation to ensure compliance. The United States did issue a reservation stating that they would implement the IHR as best as possible, recognizing the constraints of federalism. However, Canada did not ask for a similar federal reservation.

Scoping reviews help to synthesize and analyze a wide range of research and non-research materials and provide greater conceptual clarity about a specific topic or field of evidence, in this case, Canada's legal preparedness for the COVID-19 pandemic (Davis, Drey, and Gould 2009) . Therefore, the article aimed to identify and map the available evidence, determine the coverage of the literature on a given topic and provide a clear indication of the volume of the available literature (Munn et al. 2018) . We reviewed federal legislation encompassing laws, acts, statutes, ordinances or regulations legislated between 01 st January and 31 st May 2020. During this period, while Canada witnessed a high surge in the number of COVID-19 infected cases in the country, the federal government passed various laws and implemented measures to contain the disease spread within the Canadian territories and beyond, and also minimized the impact of the pandemic on the Canadian population. Our sources of data and information were the Canadian federal government departmental websites and literature. The federal legislative documents that were collected from the Department of Justice, Health Canada, Public Health Agency of Canada (PHAC), Global Affairs Canada (GAC), Transport Canada, Employment and Social Development Canada, and Immigration, Refugees and Citizenship Canada (IRCC) were at the forefront of enforcing the COVID-19 federal legislation.

We have thematically categorized the federal legislation enacted in response to the COVID-19 pandemic. Findings are described in three major themes-1) social distancing and travel restriction measures, 2) mutual aid and liability measures, and 3) allocation of scarce resources. While we contextualize and summarize the key legislation for each theme in the Findings section, we have listed the federal legislation enacted during the review period of this article in Table 1 .

1. Social (physical) distancing and travel restriction measures refer to physical distancing measures, closing schools and businesses, as well as isolation and quarantine. These measures represent direct efforts by the federal government to control the spread of the pandemic. Canada notably did not utilize the Emergencies Act (1985) to empower the federal government to manage the pandemic. The federal government stated they did not have the support of the provinces/territories. However, the declaration of a public welfare emergency under the Emergencies Act does not require provincial approval when the emergency involves at least two provinces. In contrast, all provinces and territories have declared states of emergencies, as shown in Table 2 . While not using legislative authority, the federal government did recommend social distancing measures at an early stage of the pandemic. The federal government recommended that social gatherings be restricted to no more than 50 people. The Public Health Agency of Canada issued physical distancing guidelines aligning with WHO's physical distancing recommendations to mitigate the community spread of the COVID-19 in the country. A Statistics Canada study showed 92% of Canadians followed the physical distancing guidelines, including staying inside, avoiding large crowds and maintaining the two metres distance of separation when in public (Government of Canada 2020i). In March, several provincial governments closed their schools in their respective provinces.

In terms of border screening and travel measures, in January, the PHAC activated its "Emergency Operation Centre" for screening the travellers returning from China to major airports in Canada. Subsequently, in February 2020, the federal government legislated two orders-one for the oversight of all travellers arriving in Canada from Hubei province, China (Government of Canada 2020z); and the other for the oversight of travellers arriving in Canada from a foreign country where a COVID outbreak was reported (Government of Canada 2020aa). The federal government also enacted border closure legislation effectively on March 16, 2020.

Using the emergency powers under the Quarantine Act and the Aeronautics Act, the federal government, enacted emergency orders to combat the spread of the country's COVID-19 pandemic. On March 25, 2020, the federal government announced an emergency order under the Quarantine Act that requires any person entering Canada by air, sea or land to self-isolate for 14 days whether or not they have symptoms of COVID-19 (Government of Canada 2020ab). Further, on April 14, 2020, in an effort to continue minimizing the impacts of the pandemic on Canadians and stopping the spread of COVID-19, regulatory amendments under the Contraventions Act came into force. These changes provide increased flexibility for law enforcement agencies, including the Royal Canadian Mounted Police, local and provincial police forces, to issue tickets to individuals who do not comply with orders under the federal Quarantine Act (Government of Canada 2020k). The federal regulations continue to evolve since this review; for example, the ban on non-essential travel between Canada and the United States, introduced in March, was extended several times. However, Canada's border closure measures were criticized for its "preferential approach" towards the United States. The federal orders concerning travel measures, along with other federal legislation, are shown in Table 2 . 2. Mutual aid and liability measures refer to emergency response legislation against the COVID-19 pandemic. To support the Canadian population's socio-economic well-being and Canadian businesses, the federal government legislated economic and welfare measures. The most notable being Canada's COVID-19 economic response plan-"a comprehensive plan to help ensure that Canadians can pay for essentials like mortgages, rent and groceries, and to help businesses continue to pay their employees and their bills during this time of uncertainty" (Government of Canada 2020g). Canada's COVID-19 economic response plan valued approximately $765 billion (i.e., businesses-$570+ billion, individuals-$107 billion, tax and customs deferrals for individuals and businesses-$ 85 billion) (Ramírez 2020) . The key federal legislations enacted to minimize the pandemic impact on the Canadian population are listed in Table 3. 3. Allocation of scarce resources refers to the availability and distribution of healthcare equipment to health care providers and the provision of healthcare services to the people infected. In ensuring the resources for health care services, the federal government passed an interim order that allowed the importation and sale of medical devices for use and expedited access to COVID-19-related medical devices for use by healthcare providers, including diagnostic test kits. This interim order allowed Health Canada to issue an expedited authorization for the sale or import of medical devices, including personal protective equipment (PPE), to deal with the risk of pandemic spread in the country. The key features of the interim order include 1) expedited authorization of new COVID-19 medical devices that were not licensed in Canada or other jurisdictions, 2) COVID-19 related use of existing devices licensed under the medical device regulations, and 3) COVID-19 medical devices that leverage an authorization of a device from a trusted foreign regulatory authority, whereby the Health Minister would retain the right to request additional information on a case-by-case basis. This order was one of the earlier ones passed and the most significant federal legislation enacted for the COVID-19 pandemic preparedness in the country (Government of Canada 2020s).

In Canada, long-term care (LTC) sector was hard hit by the pandemic. During this article's review period, more than 840 COVID-19 outbreaks were reported in the LTC facilities and retirement homes, leading to around 80% of all COVID-19 deaths in the country. The COVID-19 LTC mortality rate varied across the provinces; for example, Prince Edward Island and New Brunswick reported no deaths in retirement homes and LTC facilities. In contrast, over 70% of all COVID-19 deaths in Quebec, Ontario, Alberta, and Nova Scotia were reported in LTC facilities (CIHI 2020). The provincial LTC services were overburdened and disrupted due to the COVID-19 pandemic needing support from the federal government. In April 2020, Quebec and Ontario requested assistance from the federal government to manage the COVID-19 outbreaks in LTC facilities. In response, the federal government deployed Canadian Armed Forces (CAF) teams to both provinces (Mathieu and Guénette 2020; Government of Canada 2020u).

The CAF made important contributions to the pandemic response that includes-1) support to northern and remote communities, 2) assisting the PHAC in managing and distributing PPE, 3) assisting Public Health Ontario with contact tracing efforts, and 4) most notably, humanitarian relief assistance and medical support to the provincial LTC facilities in Ontario and Quebec. The CAF also is expected to support federal, provincial, and territorial partners in distributing the COVID-19 vaccines, with the program named operation VECTOR (Government of Canada 2020v). The federal government also provided international assistance such as research and development of vaccines for the COVID-19. For example, Canada pledged USD 650 million for COVID-19 vaccine research in the European Commission initiated vaccine pledging conference in May 2020. Further, Canada joined the COVAX initiative, a global initiative that brings the governments and manufactures to ensure access to COVID-19 vaccines.

In general, parliamentary institutions are designed to fulfill three core functions: representation, scrutiny, and legislation (Docherty 2011 (Docherty , 2005 . However, the Canadian parliament struggled to adapt as an institution to the COVID-19 pandemic (Malloy 2020) . The pandemic disrupted the "business as usual" for the parliament to full the three functions. During the early phase of the pandemic, legislative activity focused on-1) the passage of regular fiscal measures and 2) the passage of COVID-related emergency legislative changes. The pandemic also restricted the legislature's ability to scrutinize and authorize executive actions (Rayment and VandenBeukel 2020) . Some scholars argue the pandemic paved the way for the federal minority government to be less accountable to the parliament by limiting the parliament proceedings and debates. Unlike Canada, the UK and Australia debated the COVID-19 response legislation, and the governments were held to account (Boin et al. 2020) .

The federal government has several potential instruments available to direct public health policy in general and respond to pandemics in particular. These instruments include legislation in areas in which they have the constitutional authority, the use of its spending power, the use of intergovernmental agreements, and the issuance of national standards or guidelines.

Both federal and provincial governments exercised their constitutional powers in legislating measures against the pandemic. The Emergencies Act (1985) empowers the federal cabinet to proclaim a "public welfare emergency"; however, the federal government did not invoke the Emergencies Act, citing lack of provincial support although this support was not required, but enacted various federal laws and regulations against the COVID-19 pandemic. In contrast, provincial and municipal governments declared a "state of emergency" in their respective provinces and jurisdictions. For example, Quebec, through Order-in-Council No. 177-2020, declared a state of a health emergency. This Order-in-Council allowed the Minister of Health and Social Services to make the expenditures as deemed necessary and to enter into the contracts essential to protect the health of the population, closure of educational institutions, suspension of services (with certain exceptions) in daycare centres and family daycare services, among others (Government of Quebec 2020).

At the outset of the pandemic, provincial and territories set up checkpoints or barriers to travel, both inter-provincially and, in the case of at least Ontario and Quebec, intra-provincially. By early April, at least eight provinces and territories had border checkpoints in place. For some jurisdictions such as Nunavut, which had no cases of COVID-19, one could not enter into the territory without the first two weeks quarantine (Gollom 2020) , which is opposed to constitutional provision section 6-"mobility rights" of the Canadian Charter of Rights and Freedoms (Government of Canada 2020ah; Hughes 2020). The provincial governments have the power to impose restrictions on interprovincial trade and movement of goods, but, they do not have the authority to impose restrictions on people moving from province to province (Hughes 2020) . Thus, provincial regulations over the interprovincial movement of people appear to be unlawful, and the federal government seems to have not acted upon it. However, the Supreme Court of Newfoundland and Labrador upheld the provincial order barring an individual from entering the province and emphasized the province's travel restrictions were consistent with the Constitution in the interest of public health and contained the pandemic spread (Taylor v. Newfoundland and Labrador 2020).

Our analysis of federal legal preparedness at the peak of the pandemic identifies that the federal government demonstrated the ability to rapidly enact legislation. However, this enactment primarily focused on using its spending power. The federal legislation, Bill C-13 granted the federal health and finance ministers the power to spend "all money required to do anything concerning that public health event of national concern" (Government of Canada 2020c; Veldhuis, Clemens, and Pardy 2020). This legislation provided substantial spending power to the federal government encompassing-1) the purchase of medical supplies, 2) assistance to the provinces for safety and emergency response needs, 3) providing income support and 4) funding public health-related programs or covering expenses incurred by federal departments and agencies (Veldhuis, Clemens, and Pardy 2020) .

The analysis also suggests the federal government relied primarily on a spending power strategy over invoking the Emergency Act for two reasons that are grounded in the country's political and systemic realities at the time of the pandemic. First, realities of minority parliament in the country -the federal government is a minority government and formed the government with other parties' support. The minority parliament provided an opportunity to amend the Financial Administration Act and enact federal aid packages such as the COVID-19 Emergency Response Act (C-13) for the welfare of Canadians across provinces (Boin et al. 2020) . Second, the weakened state of the federal infrastructure for health-the healthcare facilities are among the oldest public infrastructure, and nearly half of all facilities are over 50 years old (HealthCareCAN 2020). The CAF report also emphasized limitation of healthcare facilities, especially in LTC facilities (Canadian Armed Forces 2020). As healthcare infrastructure is within provincial/territorial jurisdiction, the federal government is limited in how it could address this important part of the pandemic response.

One of the key features of federal spending legislation was to support provinces, territories and communities, including the Indigenous communities. For Indigenous communities' pandemic response, the federal government launched two programs. They include-1) Indigenous community support fund to provide Indigenous communities with the resources needed to improve their public health response to the pandemic, and 2) funding for small and medium-sized Indigenous businesses and Aboriginal financial institutions. Also, provided support package for First Nations, Inuit, and Metis Nations post-secondary students (Lickers, Campagnola, and Murphy 2020) . However, the Indigenous leaders criticized the federal government over the delay in providing dedicated funding for Indigenous communities to deal with the pandemic (Hillier et al. 2020; Wright 2020) . Scholars have also argued equitable treatment of Indigenous people, including those living in remote communities, is essential for upholding the people's constitutional rights in the pandemic response (Macfarlane 2020) .

Canada being a signatory to IHR (2005) , the federal public health authorities often referred to IHR compliance during the pandemic (Brean 2020) . The federal government largely exercised its powers under the Quarantine Act, enabling the country to meet the IHR obligations, including the required public health measures at points of entry presented in Table 4 (Government of Canada 2018; WHO 2019). But federalism had limited the federal government's authority over the surveillance and data sharing from provincial governments. The federalism dilemma of IHR compliance was earlier noted (Wilson, McDougall, and Upshur 2005) and appeared prominent for the COVID-19. During SARS, the Canadian federal government's ability to obtain data from the Province of Ontario depended on voluntary transfer since the management of infectious disease outbreaks falls under provincial jurisdiction (Wilson 2004; Wilson, McCrea-Logie, and Lazar 2004) . For COVID-19, inadequate epidemic data communication between the federal and provinces was evident, given ineffective voluntary data-sharing agreements (Attaran 2020) . To overcome this challenge, scholars suggest the federal government should exercise its powers under the Statistics Act and the PHAC Act to oblige provinces to share vital data promptly for the COVID-19 and public health emergencies in the future (Attaran and Houston 2020) .

Complex intergovernmental problems such as opioid crisis, pandemics or climate change need an intergovernmental system. The nature of these problems is beyond jurisdictional, requiring inter-governmental coordination and cooperation for effective policy responses (Paquet and Schertzer 2020) . However, the federal government appears to purposefully avoid enacting legislation that would be perceived as intrusive of provincial/territorial constitutional jurisdiction (Wilson and Lazar 2005) . Although there is an arguable case for the federal government to use its constitutional authority under the criminal power, quarantine power or peace, order and good government clause to enact or use existing legislation to obtain greater control of the public health response within provincial/territorial boundaries, the feasibility of this approach is arguable without provincial/territorial cooperation (Wilson, McCrea-Logie, and Lazar 2004) . Legislatively, it appears that the federal government has largely adhered to a respect for constitutional Provision of support through specialized staff, laboratory analysis of samples and logical assistance -The National Microbiology Laboratory is working in close collaboration with provincial and territorial public health laboratories in performing the diagnostic testing for COVID-19.

Provision of on-site assistance to supplement local investigations -Slow in providing on-site assistance to supplement local investigation, in the early days of the pandemic in the country. boundaries and assumed a collaborative federalism approach. The federal government has been reluctant to legislatively intrude into provincial jurisdiction. It has primarily used its legislative powers at international borders which fall under its constitutional authority. However, the federal government has involved itself in provincial jurisdiction by using its spending power to support individuals and businesses and facilitate procurements of needed supplies. As we move forward, it is apparent that spending power has been beneficial to the pandemic response, particularly mitigating its economic impact. The absence of federal public health authority has had limitations that were best addressed in the inter-pandemic period as opposed to at the time of a pandemic. This includes a continued issue with federal/ provincial/territorial information transfer public health events, including the PHEIC, ostensibly covered by the multi-lateral information sharing agreement. However, as purely an intergovernmental agreement, this lacks any enforcement mechanism (Pan-Canadian Public Health Network 2014). Scholars recommended effective enforcement mechanisms, including new institutions for intergovernmental agreements between federal/provincial/ territorial governments to ensure sharing of vital public health information, allocation of inter-governmental fiscal burden and resource management (Hanniman 2020; Béland et al. 2020) . A combination of federal legislation combined with conditional funding arrangement, as has been proposed, could provide for capacity, address the issue of data standardization and harmonization and provide a carrot/stick approach (Wilson, McCrea-Logie, and Lazar 2004) . The federal Emergencies Act should also be revisited as it dichotomously either provides the federal government with no authority or draconian authority (Wilson 2006) . A more nuanced, graded emergency approach would be more helpful and appropriate for public health emergencies. Such an approach is also being considered by the WHO and the declaration of PHEIC under the IHR (2005) .

Another important observation is that though the federal government has used its spending power effectively during the pandemic to support public health measures, it has not done so in the inter-pandemic period-most notably observed by the comparative absence of mention public health security issues in the Minister's mandate letters. Federal support for provincial/territorial public health infrastructure through conditional funding arrangements could have better prepared Canada for the current and future pandemics.

Notwithstanding diverging views of public health authorities around public health measures such as public gatherings/social gatherings and maskwearing in public places (Sim and Breton 2020) , there has been a considerable collaboration between federal and provincial governments in dealing with the pandemic. While the collaborative federalism approach has appeared to generally be effective to this point in time, some important limitations exist.

First, according to the IHR, the federal government may be responsible for matters that constitutionally fall under provincial jurisdiction. While the United States issues a "federal" reservation to the IHR, Canada chose not to assuming that these federal limitations could be overcome through collaboration. However, provincial variability in response to the pandemic and inadequate information technology infrastructure at the local level demonstrates the need for a stronger federal role.

Second, among all the legislative options, the federal government leveraged its spending powers. As the spending power appears to have been effective during the pandemic, it would be logical to extend this approach to inter-pandemic periods. This approach would mean considerably increasing funding to the Public Health Agency of Canada to fund and direct activities similar to how the US CDC has functioned before the Trump administration.

Third, a further test for the collaborative approach to federalism and managing the pandemic emerged with the roll-out of the pandemic vaccines. Such an approach necessitated federal leadership and a high level of cooperation. The federal government procured the vaccines on behalf of the provinces (Government of Canada 2020h). The federal government needed to establish mechanisms to conduct post-market vaccine safety and effectiveness surveillance and introduce vaccine injury compensation programs. Inter-governmental agreements with enforcement mechanisms could enhance coordination, collaboration and governance of pandemics and other emergencies moving forward.

Fourth, as the pandemic evolves, new challenges are presenting themselves that are forcing a rethink of the federal role. The emergence of new more infectious variants of the virus may necessitate the federal government to exercise more authority, including the introduction of federal standards for proof of vaccination governing international travel and potentially interprovinical travel.

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