Excerpted From: Kathleen Hammond, Katie Cheung and Noshin Ullah, Structural Racism and Income-Related Health Inequities in the Ontario Government and Its Public Health Units' Response to the COVID-19 Pandemic, 15 McGill Journal of Law and Health 134 (2023) (368 Footnotes) (Full Document)


HammondCheungUllah.jpegDisasters highlight longstanding health inequities for members of marginalized groups such as racialized communities, Indigenous peoples, low-income populations, women, members of the LGBTQI2S community, and people with disabilities. Health inequities are caused by differential access to material resources, privilege, and power. After the first wave of the COVID-19 pandemic, Dr. Theresa Tam, the Chief Public Health Officer of Canada, noted in her "Report on the State of Public Health in Canada 2020" that the health impacts of COVID-19 were disproportionately worse for marginalized groups because of health inequities, and that the intersection of multiple factors such as gender, race, and class further exacerbated the risk and impact of COVID-19.

Although governments in Canada at the federal, provincial, and territorial levels have a range of emergency powers in emergency and public health legislation, the bulk of the pandemic response came from the provinces and territories. The Ontario government had extensive emergency powers to respond to the COVID-19 pandemic by virtue of the Health Protection and Promotion Act (HPPA) and the Emergency Management and Civil Protection Act (EMCPA). In Ontario, the pandemic response was a joint effort between the provincial government and its 34 public health units, which often adopt, adapt, and operationalize the provincial government's framework given their regional needs and capacities.

Despite the warnings that the pandemic would disproportionately impact marginalized populations, and despite the extensive emergency powers that the Ontario government had at its disposal, data from Toronto indicates that racialized populations made up 69% of the city's cases, and 39% of the city's reported cases were from individuals in lower-income households. The Ontario government has been criticized for not taking into account people's differences in access to material resources, privilege, and power in its response.

In this paper we explore four aspects of the Ontario government and its 34 public health units' emergency response: (1) data collection on COVID-19 and health inequities, (2) administration of COVID-19 testing, (3) the provision of medical services to those with COVID-19, and (4) distribution of COVID-19 vaccines. For each of these four aspects of the response, we highlight central ways that the Ontario government and the provincial public health units did not adequately account for structural racism, income-related health inequities, and intersectionality in responding to the COVID-19 pandemic. We acknowledge the significant practical barriers, such as lack of information and severe resource constraints, involved in pursuing health equity goals during the COVID-19 pandemic. However, we argue that the Ontario government could have done more to address the disparate impacts of the pandemic through policy and the use of emergency powers. We argue that it had a moral duty to combat these inequities, as well as a possible legal duty.

This paper is divided into three parts. In Part I, we explain and define health inequity, structural racism, and income-related health inequities. We situate the current discussion in the existing literature that documents the health inequities faced by racialized and low-income communities in day-to-day health care, during prior pandemics, and during the COVID-19 pandemic. In Part II, we describe the nature of the emergency powers that Ontario had at its disposal. We then highlight key areas under four aspects of the Ontario government and public health units' response where structural racism and income-related inequities were apparent. For each of these areas, we recommend steps that the Ontario government and its public health units could have taken and discuss ways in which emergency powers could have been used to achieve these steps. In Part III, we explore the Ontario government's moral duty, as well as possible legal duty, to combat these inequities.

This paper serves as a learning opportunity for Ontario and other Canadian provinces and territories on how to use their extensive emergency powers to address structural racism and income-related health inequities in ongoing responses to COVID-19, and in the event of a future pandemic. It is also in conversation with scholarship that has been published during the COVID-19 pandemic that comments on structural racism and income-based inequities and how to address these in COVID-19 responses.

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The Ontario government had the ability to account for and mitigate structural racism and income-related inequities in its response to the COVID-19 pandemic through usual public policy-making processes as well as through the extensive emergency powers it had at its disposal. Although usual public policy-making processes might be a preferable approach, important powers that could have been used include data collection powers, powers to fix prices, powers to require the occupier of any premises to deliver possession of the premises to the Minister for public health purposes, powers to establish facilities for the care and shelter of individuals, powers to distribute and make available necessary goods, powers to authorize facilities to operate as necessary, and powers to issue directives regarding precautions and procedures to be followed. While we recognize that governments were operating under severe resource constraints and lack of information, the Ontario government and public health units did not sufficiently account for the impact of historical and ongoing discrimination, stigma, and stereotyping, and vulnerable groups' existing fear and mistrust in medical institutions. It also did not account for the ways in which inequity is compounded by the intersectionality of race, income, precarious legal status, housing, access to OHIP, etc. This paper reveals that in four aspects of its response, the Ontario government could have done more to address health inequities for low-income and racialized populations. The Ontario government and public health units had a moral duty and possible legal duty, through international human rights obligations and the Charter, to do so.

The first failure was the Ontario government's inadequate pandemic preparedness and unwillingness to seek and spread best practices early on. Despite its data collection powers the Ontario government did not collect data with equity-related indicators early in the pandemic. This made it more difficult for the province to target health inequities in its administration of COVID-19 testing, its provision of medical care for individuals with COVID-19, and its vaccine distribution strategy. Although testing and vaccine administration helpfully prioritized some vulnerable groups, such as Indigenous peoples living on reserve, important at-risk populations might have been overlooked. The hot spot approach was a lesson in how marginalization occurs when geography trumps social demographic data in public health. The administration of COVID-19 testing, and vaccination was also not adequately catered to different community needs. For instance, practical barriers (like inaccessible locations, long wait times and inability to isolate after receiving a positive COVID-19 test result), and systemic racism in the administration of testing and vaccine provisions create access barriers for low-income and racialized groups. There has also been insufficient outreach to local communities to develop community-driven educational efforts to reduce vaccine hesitancy. The gaps left by the Ontario government were in some instances filled by trusted community organizations (such as the Black Health Vaccine Initiative, Friends of Chinatown Toronto, the Latin American COVID-19 Task Force, and Indus Community Services), and the responses of these organizations should be looked to for best practices on how to tailor pandemic responses in ways that actually fulfill the needs of low-income and racialized communities. In terms of medical services, the pandemic has revealed larger issues with the provision of publicly funded health care services in Ontario. Although changes such as covering the cost of health care for uninsured patients is a step in the right direction of mitigating inequities, there may still be ongoing issues with how this is operating in practice. More preventive measures also need to be considered, like free distribution of masks, and long-term solutions to health inequities like the revival of Ontario's basic income guarantee pilot.

As we cyclically enter more waves of the pandemic and we continue to offer booster COVID-19 shots, this kind of analysis is important for assessing initiatives that have been taken to tackle inequities and to highlight areas for improvement. It serves as a lesson for Ontario, its public health units, and other jurisdictions on the ongoing steps that are needed to address privilege, access, and power, and to try to prevent the disproportionate health impact of a pandemic on racialized and low-income communities created by inequities.

Kathleen Hammond, JD/BCL, MPhil, PhD (cantab), Assistant Professor, Lincoln Alexander School of Law, Toronto Metropolitan University.

Katie Cheung, MPH, JD Candidate, Lincoln Alexander School of Law, Toronto Metropolitan University.

Noshin Ullah, JD Candidate, Lincoln Alexander School of Law, Toronto Metropolitan University