Overview and Critique of Public Health Emergency Laws in Canada Elaine Gibson Associate Director, Health Law Institute Dalhousie University CPHA Conference - June 2008 Funded by Canadian Institutes of Health Research

“The danger of immediate death to ourselves took away all bowels of love, all concern for one another. I speak in general, for there were many instances of immovable affection, pity, and duty…” Daniel Defoe Journal of the Plague Year 1721

“Neither a man nor a crowd nor a nation can be trusted to act humanely or to think sanely under the influence of a great fear.” Bertrand Russell

Role of Law Protect Protect Constrain/restrict Constrain/restrict Liberate Liberate Equalize Equalize Inherently collective Inherently collective

Constitution Act, 1867 – Division of Powers Federal Federal Criminal law Criminal law Peace, order and good government Peace, order and good government Quarantine Quarantine Marine hospitals Marine hospitals Provincial Provincial Hospitals Hospitals Property and civil rights Property and civil rights Matters of a local or private nature Matters of a local or private nature

Challenges in Public Health Laws Split jurisdiction – mostly provincial Split jurisdiction – mostly provincial Lack of co-operation/co-ordination Lack of co-operation/co-ordination Differences in laws Differences in laws

“The lack of federal-provincial cooperation was a serious problem during SARS… “The lack of federal-provincial cooperation was a serious problem during SARS… It is clearly incumbent on both levels of government to ensure that the breakdown that occurred during SARS does not happen again.” Campbell Commission Interim Report

“What exists now are separate systems within each of the provinces and territories, as well as a federal system that operates primarily at Canada’s international borders.” “What exists now are separate systems within each of the provinces and territories, as well as a federal system that operates primarily at Canada’s international borders.” Naylor Report

Differences in Laws Duty on self Duty on self Quarantine Quarantine Mandatory treatment Mandatory treatment Contact notification Contact notification Public notices/posting Public notices/posting

Case Study: Reporting infectious disease cases to federal government

“In the final analysis, the entire disease surveillance and control system is only as strong as its weakest link.” Kirby Report

“The bottom line is that the lack of clarity around the flow of communication and the reporting structure…provided an environment in which the crucial elements of the fight against SARS were disconnected from each other.” “The bottom line is that the lack of clarity around the flow of communication and the reporting structure…provided an environment in which the crucial elements of the fight against SARS were disconnected from each other.” Campbell Commission Interim Report

“The inherent tensions between the federal and provincial governments must be overcome by a spirit of cooperation around infectious disease surveillance and coupled with the necessary machinery to ensure in advance that the vital information will flow without delay.” “The inherent tensions between the federal and provincial governments must be overcome by a spirit of cooperation around infectious disease surveillance and coupled with the necessary machinery to ensure in advance that the vital information will flow without delay.” Campbell Commission Interim Report

Auditor-General Report 2008 “Fundamental weaknesses…The federal government has not figured out how to effectively detect and monitor the spread of deadly diseases. “Fundamental weaknesses…The federal government has not figured out how to effectively detect and monitor the spread of deadly diseases. Of primary concern is the fact that information about potential outbreaks is not routinely shared by the provinces.” Of primary concern is the fact that information about potential outbreaks is not routinely shared by the provinces.” Globe and Mail May 7, 2008

Variation - Resulting Problems Unevenness in highly interventionist laws Unevenness in highly interventionist laws Confusion Confusion Diseases don’t stop at borders Diseases don’t stop at borders

Needs Clarity in laws Clarity in laws Clarity in goals (ethics) Clarity in goals (ethics) Harmonization Harmonization Intergovernmental agreements (in progress) Intergovernmental agreements (in progress)

“Neither a man nor a crowd nor a nation can be trusted to act humanely or to think sanely under the influence of a great fear.” “Neither a man nor a crowd nor a nation can be trusted to act humanely or to think sanely under the influence of a great fear.” Bertrand Russell