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POGG As a Basis for Federal Jurisdiction Over Public Health Surveillance

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POGG As a Basis for Federal Jurisdiction Over Public Health Surveillance POGG as a Basis for Federal Jurisdiction over Public Health Surveillance Sina A. Muscati* Introduction Public Health – An Overview In the a#ermath of Severe Acute Respirato- De!ning Public Health ry Syndrome (SARS) and with concern growing about avian $u, mad cow, and other emerging &e concept of “public health” has not been diseases, public health surveillance has become explicitly de%ned in any Canadian legislation a matter of importance to Canadians. Such sur- or case law. A 2003 report published by Health veillance is a key component of the %ght against Canada’s National Advisory Committee on these diseases; it involves the systematic collec- SARS and Public Health (the Naylor Report) tion, analysis, interpretation, and dissemination de%nes public health as “the science and art of of data about health-related events for use in promoting health, preventing disease, prolong- public health responses. Indeed, new technolo- ing life and improving quality of life through 1 gies enable “data mining” at an unprecedented the organized e'orts of society.” &e report scale, both in the amount and type of informa- emphasizes two elements: “the prevention of tion that can be collected, and in the extent to disease, and the health needs of the population 2 which that information can be used to identify as a whole.” &is description of public health public health concerns. All this has made the has also been adopted by the Canadian Public 3 concept of “anonymous” information less and Health Association. Similarly, the federal De- less realistic. partment of Health Act describes the Minister’s public health mandate as one of “the promotion Laws are needed to govern the collection, and preservation of the physical, mental and use, and disclosure of personal health infor- social well-being of the people of Canada . mation. &e question at issue is whether or not the protection of the people of Canada against the federal government has the jurisdiction to risks to health and the spreading of diseases . legislate in this area. &is article will argue that [and] the investigation and research into public it does. A#er %rst providing an overview of the health, including the monitoring of diseases.”4 history of public health regulation in Canada, the article will identify di'erent constitution- On this basis, public health is perhaps best al bases for federal jurisdiction. It will focus described as the practice of developing mea- in particular on the national concern branch sures to prevent illness and promote the gen- of the “Peace, Order, and Good Government” eral health of the entire population. &is is to (POGG) power to justify federal involvement in be contrasted with “health care,” which is more the %eld of public health surveillance. curative in approach and focuses on treating the particular ailments of an individual. Public health can cover a wide range of e'orts to keep Canadians healthy as well as e'orts to relieve pressure on health care systems. &ese include Constitutional Forum constitutionnel !" such measures as immunization, infection con- local or private Nature in the Province.”9 &ere trol, emergency preparedness and response, dis- is evidence indicating that in 1867 health was ease detection, surveillance, laboratory testing, viewed primarily as a matter of private or local and regulations to support these and other pub- interest, with most people depending primarily lic health activities.5 Depending on the circum- on their families, neighbours, charities or reli- stances, these activities could fall within either gious institutions for care in times of illness.10 federal or provincial jurisdiction, or in some Few institutionalized health services were de- cases both. Jurisdiction, of course, is deter- livered by the state, and the administration of mined in accordance with the federal division public health was at a primitive stage. &is was of powers set out in the Constitution Act, 1867.6 clearly recognized by &e Royal Commission Under the Constitution, public health matters on Dominion-Provincial Relations in 1938: of a local nature, including city drinking water safety, school health checks, private workplace In 1867 the administration of public health was still in a very primitive stage, the assumption safety, and immunization fall within provincial being that health was a private matter and state jurisdiction. In turn, provinces frequently del- assistance to improve or protect the health of egate these powers to municipalities. the citizen was highly exceptional and toler- able only in emergencies such as epidemics, or Constitutional Support for a Federal Role for purposes of ensuring elementary sanitation Traditional provincial jurisdiction over in urban communities. Such public health ac- tivities as the state did undertake were almost health-related matters wholly a function of local and municipal gov- A key reason why public health has been so ernments. It is not strange, therefore, that the di)cult to de%ne, particularly from a consti- British North America Act does not expressly allocate jurisdiction in public health, except tutional standpoint, is that it did not exist as a that marine hospitals and quarantine (pre- concrete concept at the time of Confederation. sumably ship quarantine) were assigned to the &e attempt to %nd constitutional support for Dominion, while the province was given juris- federal jurisdiction over public health surveil- diction over other hospitals, asylums, charities lance is further complicated by the fact that and eleemosynary institutions.11 courts have traditionally assigned jurisdiction over many health-related matters to the prov- Over time, health matters have come to inces. One example is the Supreme Court deci- adopt an increasingly public role in Canada. sion in Schneider v. !e Queen, where the ap- Correspondingly, the courts have come to hold pellant argued that British Columbia’s Heroin that provinces possess jurisdiction to legis- Treatment Act 7 (which provided for compulso- late over such public health-related matters as ry treatment and detention of heroin users) was sanitation and prevention of the spread of com- ultra vires the provincial legislature. In dismiss- municable diseases.12 Provinces have exercised ing the appeal, Justice Dickson stated for the this jurisdiction to engage in such activities majority: “the view that the general jurisdiction as health surveillance, outbreak investigation, over health matters is provincial (allowing for quarantine, isolation and mandatory health a limited federal jurisdiction either ancillary to treatment.13 Each province has its own public the express heads of power in s. 91 or the emer- health legislation regulating these activities. gency power under peace, order and good gov- Recognition of federal jurisdiction over health ernment) has prevailed and is now not seriously 8 questioned.” Despite this traditional provincial jurisdic- tion over health-related matters, courts have &e basis for provincial jurisdiction over also recognized a federal role in those aspects health matters is tied largely to the power of the of public health that are national in scope. &e provinces pursuant to the Constitution Act, 1867 Supreme Court has on di'erent occasions held to legislate in relation to “&e Establishment, that the federal government can legislate on pub- Maintenance and Management of Hospitals,” lic health matters in its own right, even in %elds as well as to “Generally all Matters of a merely !( Volume 16, Number 1, 2007 in which provinces have already legislated. In POGG – National Concern Schneider, for example, Justice Laskin referred to a legitimate %eld of public health regulation Concern to the Nation under the POGG power, “directed to protection of the national welfare.”14 &e national concern branch of the POGG power was analyzed by the Supreme Court in R. Also in Schneider, Justice Estey argued in v. Crown Zellerbach Canada Ltd. In that case, favour of federal legislation in relation to health the respondent argued that section 4(1) of the problems having a national rather than local Ocean Dumping Control Act,21 which applied to dimension.15 He pointed out that health “is an the dumping of waste in waters within a prov- amorphous topic which can be addressed by ince, was ultra vires Parliament. In allowing valid federal or provincial legislation, depend- the appeal, the Court held that section 4(1) is ing on the circumstances of each case and on constitutionally valid as enacted in relation to a the nature or scope of the health problem in matter falling within the national concern doc- question.”16 Justice LaForest in RJR-MacDonald trine of the POGG power. Inc. v. Canada (Attorney General) later added that the “amorphous” nature of health as a con- &e Court went on to elaborate that the stitutional matter means “that Parliament and national concern branch itself has two sub-ele- the provincial legislatures may both validly leg- ments. &e %rst of these is that the power ap- islate in this area.”17 plies only to matters that are of concern to the nation, in other words, to matters that have at- Hence, even if the provinces have, to date, tained such signi%cant national dimensions as been the primary actors in such %elds as public to warrant the granting of federal jurisdiction.22 health surveillance and infectious disease con- As acknowledged in Crown Zellerbach, this as- trol, the federal government retains jurisdiction pect of the national concern doctrine was %rst to legislate in these %elds. However, provinces formulated by the Privy Council in Attorney- are still likely to view the creation of any pub- General of Ontario et al. v. Canada Temperance lic health system as a form of encroachment Federation et al.23 &at case examined the valid- on their traditional jurisdiction. It is essential, ity of the Canada Temperance Act,24 which pro- therefore, that such a system be grounded “on an vided an option for municipalities to opt-in to a incontrovertible constitutional foundation.”18 scheme for prohibition.
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