A legal and epidemiological justification for federal authority in public health emergencies.

• Author: Attaran, Amir

Federal Canada's authority to control epidemic disease under existing laws is seriously limited--a reality that was demonstrated in unflattering health and economic terms by the SARS epidemic. Yet even Canadians who work in public health or medicine and who lament the federal government's lack of statutory authority are often resigned to it because of an ingrained belief that the Constitution Act, 1867 assigns responsibility over health to the provinces and ties Parliament's hands such that it cannot pass laws for epidemic preparedness and response.

We show in this paper that this belief is legally wrong and medically undesirable. Not only does Parliament have the constitutional jurisdiction, mainly under the criminal law and quarantine powers, to pass federal laws for epidemic preparedness and response, but current Supreme Court jurisprudence confirms that federal jurisdiction may be extraordinarily flexible and even take precedence over provincial law. Using Parliament's latent jurisdiction is necessary if Canada is to fulfil its international obligations under the World Health Organization's International Health Regulations. Further, without meaningful federal laws for epidemic preparedness and control, future epidemics are likely to have unnecessary and extremely injurious or fatal outcomes, which are predicted by current epidemiological models of how epidemic diseases such as avian influenza spread in a population.

We conclude that there is no constitutional reason why Parliament cannot legislate for epidemic preparedness and response, and there are profound medical and diplomatic reasons why it must do so.

Les lois federales canadiennes relatives au controle des maladies epidemiques sont faibles--ce que l'epidemie du SRAS a demontre tant bien sur le plan de la sante que sur le plan economique. Pourtant, meme les canadiens qui oeuvrent dans le domaine de la sante publique ou en medecine et qui lamentent l'impuissance du gouvernement federal s'y resignent souvent. Cela s'explique par la croyance inebranlable que la Loi constitutionnelle de 1867 cede la competence exclusive en matiere de sante aux provinces, et restreint de surcroit la capacite du Parlement canadien de mener a bien l'adoption de lois federales en matiere de preparation et de reponse aux epidemies.

Dans cet article, nous demontrons que cette croyance est a la fois erronee sur le plan juridique et indesirable d'un point de vue medical. Le Parlement a competence constitutionnelle en matiere de preparation et de reponse aux epidemies. De plus, la jurisprudence recente de la Cour supreme indique que la determination de la competence federale doit jouir d'une approche particulierement souple, et peut meme avoir preseance sur le droit provincial. Le recours a la competence latente du Parlement est necessaire afin de permettre au Canada de respecter ses obligations en vertu du Reglement sanitaire international de l'Organisation mondiale de la Sante. Aussi, en l'absence de lois federales convenables pour la preparation et la lutte contre les epidemies, il est probable que les epidemies futures soient plus aptes a entrainer des consequences graves, voire mortelles, tel que le predisent les modeles epidemiologiques actuels de la propagation de la grippe aviaire.

En conclusion, nous suggerons qu'il n'existe aucun motif constitutionnel qui empeche au Parlement de legiferer en matiere de preparation et de reponse aux epidemies, et que d'importantes raisons medicales et diplomatiques rendent une telle intervention necessaire.

Introduction I. The Unsatisfactory Existing Legislative Framework II. Canada's International Obligations III. Epidemiology of Epidemics A. Outbreak Simulations IV. The Federal Government's Constitutional Powers A. The Quarantine Power B. The Criminal Law Power C. Peace, Order, and Good Government Conclusion Introduction

Since 2003, officials around the world have had nightmares of a global disease outbreak, whether past ones such as occurred with Severe Acute Respiratory Syndrome ("SARS"), or future ones such as the inevitable reappearance of pandemic influenza. Managing these sorts of crises requires both meticulous preparedness, for example having access to timely epidemiological information, and a firm response, in order to effectuate the clinical and public health interventions that could keep an epidemic in check.

Uncontroversial as this idea seems, in Canada almost none of the necessary measures are effectively implemented. Federal, provincial, and territorial schisms complicate efforts to assign clear responsibilities for the particular tasks of preparation and response. It is telling that even after years of preparation and refinement, Canada's national plan for an influenza outbreak is still replete with dozens of references to "F/P/T"--the usual shorthand for the federal, provincial, and territorial levels of government. (1)

But while the F/P/T lingo sounds harmonious and inclusive, it is actually a deceptive balm that covers up a dangerous failure to demarcate specific responsibilities and to assign them to individual levels of government. For example, the national influenza plan states confidently that "[t]he F/P/T governments will control the allocation and distribution of influenza vaccine during a pandemic ..." (2) That sounds fine in theory, but try and make it work when, as the national pandemic plan correctly notes, the supply of life-saving vaccine "may not be sufficient to immunize the whole population ... " (3) Rationing is inevitable. Is it credible that in a serious pandemic, when Canadians are dying by the thousands and citizens are clamouring for vaccine to save the lives of their families, each government in the F/P/T triad will cast aside its self-interest and co-operate to ration the vaccine supply, without rivalry or competition? Someone has to be the referee. Someone has to be in charge.

This paper's thesis is that, in many of the murkiest areas of public health policy, the federal government is the appropriate level of government to exert leadership. Specifically, our belief is that Canada has not done enough to federalize the preparation and response functions that are necessary to contain a "hot" epidemic. We believe that federal primacy is legally tenable as a matter of Canada's constitution, is scientifically imperative given current medical realities, is politically appropriate given Canada's diplomatic obligations to other countries, and, most importantly, is the only practicable alternative to the dysfunctional and unacceptable federal-provincial bickering displayed during Canada's 2003 SARS epidemic. Our thesis is built on all these arguments.

Succinctly put, viruses and bacteria behave independently of political considerations. Therefore, to impose a federalist or provincialist view of the world on their reality is awfully mistaken, maybe even suicidally so. We present our thesis in the following parts. Part I is an exposition of Canada's existing legislation regarding global disease and a brief history of events during Toronto's SARS epidemic. Part II is an explanation of Canada's new international obligations in respect of global epidemics. Part III is a scientific primer on the epidemiology of disease spread and control, using human-transmitted avian influenza as a didactic example. Part IV is a study of three federal powers under the constitution--the quarantine; criminal law; and peace, order, and good government ("POGG") powers--each of which relates to the actions that would be necessary to prepare for and respond to an epidemic. Part V is our conclusion.

1. The Unsatisfactory Existing Legislative Framework

   Currently, the federal role in public health emergencies is governed primarily by the Emergencies Act, (4) which despite a change of name cannot escape the legacy of its predecessor, the War Measures Act, (5) forever identified with the October Crisis. Like the War Measures Act, the Emergencies Act is intended as a last resort: a legal precondition of using it is that the situation "cannot be effectively dealt with under any other law of Canada." (6) Using the act therefore amounts to an admission of failure, that more appropriate legislation was not anticipated and put in place.

   Under section 5 of the act, infectious outbreaks fall under the category of public welfare emergencies. As such:

   "public welfare emergency" means an emergency that is caused by a real or imminent ... (b) disease in human beings, animals or plants ... and that results or may result in a danger to life or property, social disruption or a breakdown in the flow of essential goods, services or resources, so serious as to be a national emergency. (7) Note the caveat in the last clause: the act is limited to cases of a national emergency. Elsewhere, the act stipulates that the federal government must not declare a public welfare emergency "where the direct effects of the emergency are confined to, or occur principally in, one province," unless the province itself asks that a public welfare emergency be declared because it cannot manage alone. (8) That is, only when the emergency crosses into a second (or third, or fourth, etc.) province does the act give the federal government authority to act, subject to consultation with the provinces.

   The act's logic is easy to understand but hard to appreciate. It restrains, even denies, federal statutory authority to tackle a disease outbreak while it remains small, manageable, and confined to one province. Rather, federal authority begins only once the outbreak has spread, reaching the out-of-control quality of an epidemic. In health terms, this is rather similar to a surgeon declining to operate on a patient's cancer when it is small and confined to a single diseased organ, preferring to wait until tumours have grown and the cancer has metastasized throughout the body. A surgeon applying that logic would be considered unethical, if not medically negligent, and...