Seite - 93 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

93Pandemic Data Sharing: How the Canadian Constitution Has Turned into a Suicide Pact The  choice  is  not  between  order  and  liberty.  It  is  between  liberty  with  order  and  anarchy  without  either.  There  is  danger  that,  if  the  court  does  not  temper  its  doctrinaire  logic  with  a  little  practical  wisdom, it will convert the constitutional Bill of Rights  into  a  suicide  pact.1 For decades, public health professionals, scholars, and on mul-tiple occasions the Auditor General of Canada have raised warnings about Canada’s dysfunctional system of public health data sharing. These warnings have been reiterated in the wake of repeated outbreaks—most prominently SARS in 2003, but also food-borne listeriosis in 2008 and H1N1 influenza in 2009. Every single time, the warnings have been clear that unless Canada better prepares itself for a pandemic, many thousands could die, as when the Spanish Flu killed an estimated 55,000 Canadians between 1918 and 1920. Almost exactly a century later, COVID-19 arrived. While SARS killed 44 people in total in Canada, as of mid-May of 2020, COVID- 19 is killing several times that many every  day. Nor is satisfactory progress being made, for unlike some countries, including those far more seriously affected such as Spain and Switzerland, which sharply reversed and crushed the epidemic’s growth, in Canada there is only minimal reversal after over two months of moderate lockdown. (See Figure A5.1.) Why? The most fundamental problem is that epidemic responses are handicapped by a mythological, schismatic, self-destructive view of federalism, which endures despite being flagrantly wrong. Who among us has not heard it emptily parroted that “health is provin- cial,” rather than the shared jurisdiction the Supreme Court of Canada has said it is?2 Nowhere is federal-provincial dysfunction more apparent than in the realm of epidemiological data. When provinces collect detailed “microdata” on each COVID-19 case—the absolutely  indispensable raw 1. Justice Robert Jackson in Terminiello  v  City  of  Chicago, 337 US 1 (1949) at para 107. 2. RJR-MacDonald  Inc  v  Canada  (AG), [1995] 3 SCR 199 at para 32, 127 DLR (4th) 1; Eldridge  v  British  Columbia  (AG), [1997] 3 SCR 624 at paras 24–25, 151 DLR (4th) 577; Reference re Assisted Human Reproduction Act, 2010 SCC 61 at para 57; Canada (AG)  v  PHS  Community  Services  Society, 2011 SCC 44 at paras 67–70.