Seite - 102 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE102 non-scientific forecasts for show. The Western democracies that have turned the course of COVID-19 most effectively, such as Germany, Norway, and Switzerland, have proper scientific models, in some cases published  daily. How and Why to Fix This We believe there must be mandatory federal law—not just failing, voluntary agreements—that obliges provinces to share epidemiologi- cal data, in a timely, transparent, accessible, and auditable manner. It is inarguable that a law of this kind can be constitutional, even if it affects provincial health institutions.27 But some—including David Robitaille in this volume (see Chapter A-4)—think federal legislation of this kind undesirable, and prefer federal-provincial cooperation. We strongly disagree. Speaking not merely as lawyers, but with the backing of advanced training in immunology and years of experience with infectious disease, COVID- 19 is neither history’s last pandemic, nor “severe” in the spectrum of what scientists can foresee. Natural evolution can generate nightmare viruses combining the high transmissibility of COVID-19 with much higher case fatality rates (for example, 30% for the Middle Eastern Respiratory Syndrome), and virologists are even engineering such chimeras experimentally in laboratories today.28 The jurisprudential notion that bare federal-provincial cooperation, demonstrably failing for “mild” COVID-19, could suffice for a far more terrifying biological reality such as this is simply too naïve to credit. Currently, there are two federal statutes that could be used, but aren’t. As with all laws of Parliament, both benefit from the Supreme Court of Canada’s presumption of constitutionality, and both are intra vires the “statistics,” “quarantine,” or “criminal law” powers in s. 91 of the Constitution Act, 1867.29 S. 15 of the Public  Health  Agency  of  Canada  Act permits the Governor in Council to make regulations respecting “the collection, analysis, interpretation, publication and distribution of information relating to public health,” subject to parts of the Department of Health Act, and in turn the Statistics Act. It would be simple for Cabinet to 27. Canada  (AG)  v  PHS  Community  Services  Society, 2011 SCC 44 at para 50. 28. Talha Burki, “Ban on Gain-of-Function Studies Ends” (2018) 18:2 Lancet Infectious Diseases 148. 29. Desgagnés  Transport  Inc  v  Wärtsilä  Canada  Inc, 2019 SCC 58.