Part Iv: Comparative and International Law Perspectives the Failing Federation: Why Canada is Ineffective At Covid-19

PART IV: COMPARATIVE AND INTERNATIONAL

LAW PERSPECTIVES

The Failing Federation: Why Canada Is Ineffective

at COVID-19

Amir Attaran*

My goal in this article is to explain how Canada’s Constitution has come to

help—or hinder—an effective response to COVID-19. The principal purpose

is not to advocate for Canadian law reform, which is clearly necessary. Rather

the aim is to explain how health law generally, and the legal and political con-

tours of Canadian federalism more specif‌ically, have acted as a brake on the

country’s response to COVID-19, which, while better than that of the United

States, is still so shockingly bad as to deserve no emulation. Both countries

have failed at COVID-19 and are examples of how not to prepare for and

respond to pandemic emergencies. Indeed, it is diff‌icult to f‌ind countries, even

much more severely affected ones, whose performance at tamping down the

epidemic has been worse.

This article has three parts. Part I describes the constitutional underpinnings of

health care and public health in Canada, as it relates to federalism and historical

struggles between the federal government and the provinces. It will show that

Canada has, at least on paper, a far stronger federal government than the United

States, which could bring itself to bear on COVID-19 and future pandemics. But

because there is an enormous difference between the paper “reality” and the true

reality, Part II details how Canada’s federal response to COVID-19 has been stag-

geringly effete and incompetent, and is arguably the single greatest cause of lives

lost in the pandemic. Part III discusses reforms that could be put into place.

Because Canada is such a failure on COVID-19, three other federal countries that

have performed better—Australia, Germany, and Switzerland—merit considera-

tion as models.

* Professor, Faculty of Law and School of Epidemiology and Public Health, University of Ottawa,

Canada; LL.B. (British Columbia), D.Phil. (Oxford), M.S. (Caltech), B.A. (Berkeley). I wish to thank

Professor Eugene R. Fidell warmly for his careful eye and help in improving the manuscript. © 2020,

Amir Attaran.

229

This article argues that Canada’s Constitution is not the problem that most

Canadians think it is. Rather the problem is a self-neutering political disincli-

nation of the federal government to act—and it has killed Canadians.

Flipping the famous words of Justice Jackson in Terminiello v. City of

Chicago on their head, it is not the doctrinaire logic of Canada’s Constitution

that is a danger, but the lack of practical wisdom in the present-day federal

government which in pandemic times has transformed the Constitution into a

suicide pact.

1

I. THE CONSTITUTIONAL POSITION

Canada’s health system is often caricatured in American discourse, along lines

that ref‌lect America’s own political schisms. To progressives, Canada is cele-

brated because it has publicly-funded healthcare accessible to all legal residents.

To conservatives, Canada is reviled because publicly-funded healthcare smacks of

socialism and occasionally results in long waiting lists for necessary medical serv-

ices. Both these positions contain an element of truth and are endlessly debated,

Figure 1:

Data from the European Centres for Disease Prevention and Control.

1. Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).

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