Page - 103 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

103Pandemic Data Sharing: How the Canadian Constitution Has Turned into a Suicide Pact issue a regulation requiring provinces to share designated epide- miological data, and to do so in a prescribed, secure electronic form, which experts like Statistics Canada could build. S. 15 also helpfully empowers Cabinet to craft bespoke protections for confidential or personal health information, which is indispensable for critical life- saving interventions such as cellphone-based contact tracing of per- sons exposed to the COVID-19 virus, and in doing so Cabinet may deviate from the Privacy  Act and the Personal Information Protection and Electronic Documents Act.30 Alternatively, s. 13 of the Statistics Act permits the Chief Statistician of Canada to issue a mandatory request for epidemiologi- cal data to any “person having the custody or charge of any docu- ments or records that are maintained in any department [including in a province] or in any municipal office, corporation, business or orga- nization.” While easier to use than s. 15 of the Public  Health  Agency  of  Canada Act, this mechanism has the disadvantage that it only allows existing data to be collected. We recommend using both these statutory powers at once for COVID-19. We further recommend for COVID-19 specifically that: (i) any Cabinet regulation under s. 15 of the Public  Health  Agency  of Canada Act should concomitantly declare an emergency for the duration of the pandemic under the federal Peace, Order, and Good Government power (POGG) and the ratio in Re:  Anti-Inflation  Act;31 and (ii) that a province’s eligibility to receive billions of dollars of emergency federal relief should be conditioned on furnishing epi- demiological data per the ratio in Re: Canada Assistance Plan (B.C.).32 Supreme Court precedent leaves no doubt that both the POGG emer- gency and federal spending power may be used to enforce compli- ance with data sharing. Taken together, these two statutory powers, reinforced by other laws as we have just described, can: • oblige provinces to hew to a single COVID-19 case definition established by PHAC for statistical comparability; • oblige provinces to report epidemiological data according to a single method established by Statistics Canada; 30. See the derogations in the Personal Information Protection and Electronic Documents Act, SC 2000, c 5, ss 7(3)(c1)(iii), 7(3)(e); Privacy  Act RSC 1985, c P-21, s 8(2). 31. [1976] 2 SCR 373, 68 DLR (3d) 452. 32. [1991] 2 SCR 525 at 567, 83 DLR (4th) 297.