The Pandemic and Beyond: Federalism Faces Existential Threats.

• Author: Metcalf, Cherie
• Position: Canada - Special Issue: COVID-19 and the Law

Introduction I. How Does Federalism Shape Canada's Response to an Existential Threat? A. Divide and Conquer: (i) Efficiency, Information, and Subsidiarity (ii) Federalism, Experimentation, and Learning (iii) Insuring Against Mistakes B. United We Stand: (i) Spillovers, Public Goods, and Coordination Problems (ii) Sharing Burdens Equitably (iii) Who Are We} Community, Compliance, and Trust C. Mind the Gap... (i) Whose Job is That? (ii) Cities and Local Government (iii) Indigenous Governments II. The Pandemic and Beyond: Questions for Canadian Federalism Conclusion Introduction

In 2020 Canada faced an existential threat as the Coronavirus pandemic took hold. The first reported case of COVID-19 in Canada was announced on January 25, 2020. (!) By January 3, 2021, the country had recorded over 600,000 cases, 27,000 hospitalizations, and 15,000 deaths. (2) Previously unimaginable shutdowns needed to slow the pandemic caused widespread economic losses and record levels of unemployment. (3) While perhaps not apparent at first, over time the scale of the health, social, and economic disruptions became clear. The pandemic threatened the integrity of Canadians' collective well-being in a way that went well beyond ordinary policy issues, by undermining the basic stability of the environment we live in and rely on in our daily lives, and that supports our society. The scope and severity of the pandemics impact necessarily affected all Canadians. Unfortunately, the pandemic was not the only such threat looming over Canada in 2020. It was also among the hottest years on record, (4) and Canada was hit with severe weather and extreme temperature. In Nunavut, the country's last fully intact ice shelf collapsed into the sea, while other areas of the country suffered a record-setting Atlantic hurricane season, faced severe air quality issues stemming from wildfires, and saw damage from storms and flooding. (5) These impacts, and worse, can be expected as the existential threat of climate change rises.

When Canadians are faced with the serious harms from an existential threat like the pandemic, they naturally look to government to help protect them. The question we consider in this brief essay is: which government?

In Canada, the power of government is divided. Our federal structure, adopted at Confederation in 1867, creates a federal government that can address national concerns as well as powerful provincial governments responsive to regional interests. These governments co-exist in Canada and under the Constitution both divide and share power in complex ways. How does this federal structure shape Canada's response to existential threats? Are there constraints in our federal structure that should be addressed to make Canada better prepared to cope with extreme threats like the pandemic in the future? Can we learn anything from our response to the pandemic that may help us address the longer-term threat from climate change?

1. How Does Federalism Shape Canada's Response to an Existential Threat?

   Canada's federal structure both benefits and limits Canada's ability to respond to a threat like the pandemic. Courts have looked to underlying principles, history, the role of federalism in creating and protecting particular communities in Canada, and the ability to achieve important objectives to interpret federal and provincial powers. (6) When it comes to existential threats, the need for policy to be effective is important in thinking about jurisdictional assignments. Below we review how our existing federal structure has shaped Canada's response to the pandemic in light of this functional concern, using climate change as another example of an extreme risk to test our insights.

   1. Divide and Conquer?

      Canada's federal system grants substantial authority to the provinces. Provincial governments are the primary decision-makers in important areas like the operation of hospitals, provision of health care services, regulation of specific industries and conditions of work in the provinces, and regulation of property, including provincially owned land and natural resources. (7) Their wide-ranging authority means that provincial governments play an important role in response to threats like the pandemic in Canada. During the pandemic, provinces have managed COVID-19 testing infrastructure, created provincial public health measures, and crafted guidelines for infection and hospitalization rates to trigger tiered restrictions on activity to manage the risks of COVID-19. Provinces were free to design their own responses, weighing their own priorities, needs, and resources. There was no uniform national testing, tracing, risk level, or response framework. Prior to passage of the federal Greenhouse Gas Pollution Pricing Act, (8) which sets a mandatory national minimum price on greenhouse gas (GHG) emissions, the same could be said of climate policy in Canada. Provinces largely had the authority to make their own assessments of the threat and determine their own responses. Is the decentralization that comes from provincial jurisdiction a benefit when Canada faces existential threats?

      (i) Efficiency, Information, and Subsidiarity

      While a threat like the pandemic may seem to require a national response, decentralized provincial action can be beneficial. One reason is that effective policy often has to be calibrated to the circumstances. One size does not fit all--and tailoring responses requires information that is often more accurately and readily available at a local level. In principle, authority should be delegated down to the effective level "closest" to those affected by the decisions. In addition to promoting efficiency by matching authority to a government likely to be in possession of the relevant information, this principle of "subsidiarity" can also enhance the legitimacy of regulation. (9) Individuals most affected by regulations also have a direct connection to the government imposing them.

      We can see this aspect of federalism in provincial responses to the pandemic. Provinces vary significantly in terms of factors relevant to the risk of the pandemic, such as population density, capacity in health care resources, presence of vulnerable populations, and types of industry or employment to name just a few. Differences in these underlying risk profiles were apparent in the adoption of policies on lockdowns, quarantines, and travel restrictions in response to the pandemic. Provinces like Prince Edward Island and Newfoundland and Labrador initially adopted extremely strict policies, effectively prohibiting travel to their regions for any non-residents--a choice they j ustified by p ointing to their limited hospital and intensive care unit (ICU) capacity. (10) Throughout the pandemic, the maritime provinces have maintained this strict approach, forming their own "bubble" when cases were low, but continuing to require two-week quarantines for anyone permitted to travel there for essential reasons from other regions of Canada. (11) Despite the economic implications of turning visitors away from their popular region, Maritimers have been highly supportive of this strict approach coming from their provincial governments. (12)

      In contrast, Quebec and Ontario have declined to adopt general interprovincial travel bans--their large populations and corresponding health care capacity likely made this a less necessary or helpful strategy, while high volumes of interprovincial mobility linked to supply chains for essential goods would have produced significant enforcement costs. In fact, even during the early stages of the pandemic, Ontario welcomed the arrival of temporary foreign workers who provide critical labour for its agricultural industry. (13) However, the conditions under which they lived and worked led to a series of outbreaks and a need for focused regulatory responses. (14) While the federal temporary foreign workers program required quarantine on arrival, (15) regulation of their work environment engaged provincial authority. Ontario developed policy directed at regulating and supporting its agricultural industry and these crucial workers during the pandemic. (16) Migrant workers are important participants in the agricultural industries of Ontario, Quebec, British Columbia, and Nova Scotia. (17) However, the conditions and appropriate responses for these workers were not something common to all Canadian provinces. The provinces' powers to regulate particular industries within their borders, dealing with issues of local concern, created constitutional space for needed variation in pandemic responses. (18)

      (ii) Federalism, Experimentation, and Learning

      The variable responses of provinces to similar events can also offer opportunities to learn from both successes and mistakes. Decentralized government can provide a kind of "laboratory" to test the effectiveness of different regulatory strategies. (19) When facing an existential threat, it may seem that we would want to focus on uniformly implementing "best practices". However, these can be difficult to identify.

      Provincial approaches to managing schools during the pandemic provide an example of how decentralization allows diverse approaches. British Columbia reopened its schools in the spring of 2020, before closing them again for summer break. Quebec, despite being hard-hit by the first wave of the pandemic, also reopened schools early while provinces like Ontario and Nova Scotia waited until September 2020. (20) Quebec's initial reopening was seen by many as a success. (21) While all provinces have the goals of protecting children's health while maintaining the quality of their education, each province has taken its own approach to safety measures like mask-wearing, distancing between desks, and placing students in "cohorts" to minimize contact with other students. (22) Variation in the timing of reopening and implementation of safety measures in schools means that provinces...