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Tyler McCann: The risks of extreme weather are real. Just ask Canada’s farmers

Commentary

Extreme weather exacerbated by climate change is wreaking havoc across Canada this summer.

The heat dome along the West Coast and forest fires are having devastating consequences. While it may not always make the headlines, extreme weather is also creating chaos for farmers and Canada’s food system this summer. Unfortunately, this severe weather is the new normal for Canada’s farmers and it is time that farmers and governments become better prepared.

The risks and impacts of extreme weather are real and are being felt now. As early as the beginning of June, farmers warned of drought risk, saying that feed supplies could dry up as early as July. Those early warnings were right. Farmers have been looking for feed, but it is expensive and far away, if they can find it. As a result, many have been forced to shrink their herd size, sending animals to market. Market watchers are already reporting an increase in cattle going to auction and expect volumes to increase.

Grain farmers are watching prices go up as grain supplies decrease. Higher prices help grain producers mitigate lower yields, but some farmers are struggling to grow enough to fill existing contracts, let alone take advantage of the higher prices. In addition, not filling a contract can force a farmer into paying a penalty to the grain company or trader they have a contract with. This adds stress to an already difficult situation.

The impacts of extreme weather highlight the comprehensive way climate change is driving Canadian agriculture and food.

Recently, agriculture’s role as a source of climate change solutions has been a major focus. Efforts made over the last 30 years as farmers have moved to conservation tillage practices, adopted better plant and animal genetics, diversified crops, improved feed efficiencies and lowered input use have increased soil organic carbon, improved water retention and reduced the overall environmental footprint of agriculture. Farmers can and are doing more as our understanding of agriculture’s role in greenhouse gas mitigation and carbon sequestration increases.

Due largely to farmers changing the way they farm, in 2000, Canadian soils sequestered more carbon than they emitted. Current science estimates that Canadian soils will be able to accumulate additional carbon until at least 2040. Governments are catching up to the work that farmers are doing, with Canada’s climate plan and the 2021 federal budget committing almost $400 million to the sector with a mix of new and existing funding, to accelerate emissions reductions, boost carbon sequestration and adapt to climate change.

Farmers as climate change solution providers is only one side of the equation. Farmers are also on the front lines of a changing climate, struggling to adapt to changing weather and changing ecosystems. Around the world, food-producing regions are being impacted by climate change, with Canada being one of the few countries where agricultural frontiers are expanding. This means Canadian food producers are well placed to sustainably intensify food production and meet the critical challenge of feeding the world without destroying it.

However, as agricultural land changes, so too does the weather, and the weather is changing in extreme ways.

The increasing impacts of extreme weather should come as no surprise to farmers and governments. Last year a report from Natural Resources Canada said that on the Prairies “the impacts of flooding, drought and wildfire in recent years are unprecedented, and climate models suggest an increased risk of these events in the future.” In 2019, Agriculture and Agri-Food Canada launched a series of extreme weather indices “to help producers prepare for extreme weather conditions.”

The reality is that farmers are struggling now, and they need governments to act quickly.

In 2008 a Natural Resources Canada report cited research from 2003 confirming that rising temperatures would exacerbate drought conditions on the Prairies in the future. That same report highlighted some of the ways governments were responding to drought and its impact on farmers.

The report came just ahead of several years of extreme weather on the Prairies and across Canada. Prairie farmers faced a significant drought in 2009 and a substantial flood in 2010, triggering hundreds of millions of dollars in aid from governments.

Despite the science and the weather events, and the work by governments, farmers, businesses, and civil society, there is appears to be no concerted effort to develop a comprehensive strategy to mitigate, adapt and de-risk extreme weather.

At a recent CAPI event, Cornell Professor Christopher Barrett presented the need for socio-technical bundles to build sustainable, equitable, inclusive food value chains. This approach can guide Canada’s agri-food system as it strives to de-risk extreme weather.

A crucial part of a bundle must be increased research and knowledge transfer investments that advance our understanding of how to farm more resiliently. The Agriculture and Agri-Food Canada Living Laboratories Initiative is a step in the right direction, and the recent commitment of $185 million over 10 years will help farmers and scientists work together to do more.

Technology and innovation must also play a major role in insulating Canada’s food system from the risks of extreme weather. For example, new breeding tools, including gene-editing, are making it easier to develop drought-tolerant crops that are core to a more resilient food system. Developing new crops is challenging, but navigating Canada’s regulatory framework can make getting these tools into the hands of farmers even more difficult. Therefore, a bundle to de-risk extreme weather should include a modern regulatory framework that allows for technology and innovation to increase resiliency.

New risk management tools are also being developed to help farmers manage the financial impacts of extreme weather. For example, parametric insurance products are coming to market offering farmers insurance designed to address the changing weather. Bundling policies that encourage the development of these innovative risk management tools will help farmers de-risk weather.

Agriculture Minister Marie-Claude Bibeau speaks with Curtis McRae as she tours his grain farm in the drought-stricken Interlake Region of Manitoba on July 22, 2021. David Lipnowski/The Canadian Press.

However, the bundle should also include a backstop that kicks in when the impacts of extreme weather become more than a farmer can handle. The current Federal-Provincial-Territorial (FPT) program, AgriRecovery, isn’t a program but a “framework” used by governments when natural disasters occur.

In theory, governments should use the framework to work together, however recent announcements seem to point to that not happening.

This framework approach does not offer the timely, predictable, meaningful support farmers need in the face of extreme weather. The competing announcements from governments do little to address the uncertainty over whether a farmer will receive disaster assistance when they need it. An extreme weather policy bundle should include a new approach to disaster assistance.

The U.S. department of agriculture maintains a series of standing programs that farmers can access when their county is designated as a federal disaster area. While a process is still required, those processes have been streamlined, including a near-automatic designation when a county meets a severe drought intensity for eight consecutive weeks. The process provides certainty, both in what is required to be designated a disaster and in the aid that is available once that designation is made.

Earlier this year FPT Agriculture Ministers launched negotiations for their next five-year agreement. CAPI recently released a report exploring the background context to those agreements and calling for a more nimble approach that can better respond to the evolving risks that farmers face. Extreme weather is one of those risks that requires such an approach.

The negotiations provide a good opportunity for governments to partner with farmers and players across the food system to develop a comprehensive strategy, including research, regulatory reform, and a better disaster program to de-risk extreme weather.

The reality is that farmers are struggling now, and they need governments to act quickly. The AgriRecovery announcements alongside tweaks to existing programs are steps in the right direction. However they are not the long term plan that farmers, governments and the rest of the agri-food system need. The new extreme weather normal may already be here, but it is not too late to prepare for future weather disasters.

Gerard Kennedy: Settle the legality of vaccine mandates with the notwithstanding clause

Commentary

Forced medical procedures must be one of the most egregious violations of a person’s physical and psychological integrity against the will of an individual.”

Most Canadians, whether constitutional lawyers or not, recognize truth in this holding of Justice Ian Binnie in A.C. v. Manitoba. The violation of personal integrity is aggravated when, as in A.C., a strong religious belief is the basis of an objection to medical treatment.

But what about society’s interests? The number of Canadians vaccinated against COVID-19 may be insufficient to guarantee a return to normal life. An obvious way to encourage higher vaccine take-up is restricting the liberty, including taking away the jobs, of the unvaccinated. But with few, if growing exceptions, politicians, as well as other decision-makers such as university presidents and business leaders, have been reluctant to pursue this route.

Central to their hesitation are concerns, in the vein of Justice Binnie’s, about vaccine mandates’ legality. These concerns are not fanciful.

But this legal grey zone can become black-and-white. Governments can pass legislation, regulating use of vaccine mandates, noting where they are to be: mandatory (e.g., staff front-line heath care, elementary schools); permitted (most places); and prohibited (e.g., customers at grocery stores, pharmacies). Exceptions should, of course, be made for those who cannot be vaccinated, such as if they are too young, undergoing chemotherapy, or are otherwise immuno-compromised. 

And this legislation should be crafted by invoking section 33 of the Canadian Charter of Rights and Freedoms, also known as the “notwithstanding clause”.

The Legal Grey Zone

Concerns that vaccine mandates are unconstitutional may be overstated. Law professors Debra Parkes and Carissima Mathen have recently persuasively argued that restricting individuals from attending a university campus unless they are vaccinated would not violate the Charter. The Charter only applies to “government”.

Whether this includes universities is unclear. More importantly, they suggest that rights to liberty or security of the person would be limited in accordance with the principles of fundamental justice, meaning s. 7 of the Charter, which protects those rights, would not be limited.

Alternatively, and even more persuasively, they observe that all rights in the Charter (including rights to freedom of conscience and religion, cited as reasons for refusing to be vaccinated) can be limited if “demonstrably justified in a free and democratic society”.

Indeed, Justice Binnie was unable to persuade his colleagues in A.C. that the unwanted blood transfusion in that case violated the Charter, albeit only because the person was a minor.

But the devil is in the details. My colleague Brandon Trask has viewed the constitutionality of vaccine passports with skepticism. The right of adults of sound mind to refuse medical treatment existed in the common law before being constitutionalized in s. 7 of the Charter, even putting aside religious freedoms.

A majority of the Supreme Court of Canada has never found a limit on s. 7 rights to be justified. To be sure, in a leading s. 7 case, Justice Antonio Lamer suggested that limits on s. 7 could be justified in emergencies, including “epidemics.” And courts have been very deferential to policy-makers in emergencies in general, and the COVID-19 pandemic in particular. Even so, we are in unchartered waters.

The argument that the right not to be subject to unwanted medical treatment would not be infringed because no one would be forced to take the vaccine, but rather have their liberty restricted, is similarly detail-dependent. “Take the vaccine or go to prison” is a “choice”, but not one that a court would likely hold to be constitutional. “Take the vaccine or you cannot go to a Blue Bombers game” (as is currently the case in Manitoba) is at the opposite end of the spectrum.

A Manitoba vaccination card.

Where does “take the vaccine or lose your job, and thus your livelihood and a large part of your identity” land on this spectrum? Here, the answer is less certain. It is likely permissible to mandate that a critical care nurse be vaccinated upon pain of losing his job, given his interaction with the most vulnerable.

But would this also be true for a park conservation officer, who rarely interacts with individuals and, when she does, typically is outdoors (where the risk of COVID-19 spreading is minimal)? How the courts will balance her acute interests in bodily integrity upon pain of losing her livelihood, against a small risk of infecting a colleague, is very uncertain.

Prime Minister Trudeau’s recent announcement that the civil service is examining vaccines mandates for federal employees and those in federally regulated industries implicitly acknowledges nuance here.

The legal grey zone of vaccine mandates is complicated not just by the context-specific nature of Charter analysis, but by provincial human rights and privacy legislation that apply to private parties as well as governments. The details of these laws vary from province-to-province, muddying the waters further. And there is evidence that vaccine mandates would disproportionately impact certain racial and/or religious groups, potentially putting statutory and constitutional equality rights in play.

This legal grey zone has led many decision-makers to be reticent to mandate vaccination. This is understandable. How many employers and businesses want to end up in litigation? Even if they “win,” the cost, delay, and stress are themselves disincentives to act.

Enter the Notwithstanding Clause

The “notwithstanding clause” in the Charter allows legislatures to temporarily override Charter rights, or at least judicial interpretations of those rights. This is controversial in some circles, largely because it leaves the judiciary powerless in the face of legislative majorities subordinating minority rights (see Quebec’s Bill 21).

However, it can be defended as the part of the constitution that protects parliamentary supremacy. “Judges do not have a monopoly on constitutional wisdom” and the boundaries of the Charter’s meaning are a matter for reasonable disagreement. And but for the clause’s inclusion, the Charter never would have been enshrined.

Those across the political spectrum, but particularly small-c conservatives (in power in seven of ten provinces), should be particularly keen to take this route of legislation invoking s. 33 regarding vaccine mandates.

Most importantly, using the notwithstanding clause (in legislation also temporarily overriding other human rights and privacy statutes) eliminates legal uncertainty that is seemingly causing so much reticence to act. This would tell, for example, university presidents, in no uncertain terms, that they have authority to mandate vaccines on campus, allowing them to make decisions in the best interests of their staff and students without fear of litigation.

As Cass Sunstein among others have noted, legal uncertainty tends to particularly concern conservative jurists.

Moreover, legislation allowing businesses to mandate vaccines allows them to decide how to balance the interests of the vaccine-resistant against the needs and demands of their clientele. There may be some circumstances (such as front-line healthcare and elementary school staff) where the government should put its foot down as the risk to vulnerable and/or unvaccinated populations is too great.

There may be others (such as customers at grocery stores and pharmacies) where imposing a vaccine mandate should be prohibited as it would further impede the vaccine-resistant’s ability to live healthily. But having the “default” be choices of individual businesses and workplaces respects local autonomy and allows businesses to tailor their practices to their particular clientele and work force.

Using the notwithstanding clause can also demonstrate that legislatures, as much as courts, can interpret the Charter’s meaning, frequently a matter of reasonable disagreement. Explaining why s. 33 is being used — easy, in this context, given the possible dangers of disagreement on Charter interpretation — also better allows the public to judge the wisdom of using it and hold politicians accountable accordingly. Mark Mancini and Geoffrey Sigalet suggested as much last year.

Using s. 33 might be concerning to those who view the clause as illegitimate and are reluctant to normalize its use. Its use may also be objected to as unnecessary given plausible arguments that limits on Charter rights posed by vaccine mandates would be justifiable.

These were reactions to New Brunswick’s 2020 proposal to mandate vaccines in schools using s. 33. These are respectable viewpoints. But their consequence is that any vaccine mandate would be enacted in a legal grey zone — a grey zone that may lead to a lack of vaccine mandates.

In any event, concerns about normalization of the use of s. 33 should be less acute in this unique situation. Even critics arguing for constraints on its use, such as the International Commission of Jurists, have suggested that it would be permissible in “an emergency or [for] an overwhelming public purpose.”

Such constraints are unlikely legal requirements given the clear language of s. 33, and past judicial decisions interpreting it. Even so, the circumstances of a once-in-a-century pandemic would seem to satisfy even these critics.

Some libertarians may continue to have extra-legal, philosophical objections to vaccine mandates. But legislation, using the notwithstanding clause, would at least eliminate doubts about legality.

This would not just reduce inaction due to fear of litigation, but allow most businesses and employers to make decisions without fear of litigation, and demonstrate the role of legislatures in constitutional interpretation.