Constitutional Jurisdiction Over Health in Canada

Abstract

This paper reviews the current state of the law relating to the division of powers over health in Canada. Sections 91 and 92 of the Constitution Act, 1867 do not expressly grant jurisdiction over health care. The federal government has shaped the Canadian health care system through the exercise of its spending power, most notably through the Canada Health Act. The scope of the federal criminal law power has been expanded to encompass hazardous products and drugs, environmental and reproductive health. The federal government has granted increasing powers to First Nations to regulate matters of Aboriginal health. Provinces are primarily responsible for the design, management and delivery of health care services, given their section 92 jurisdiction over “hospitals”, “property and civil rights”, and matters of a “local or private nature.” Together with provincial jurisdiction over hospitals, the property and civil rights power enables provincial regulation of health and hospital services, records, insurance and health professionals. Public health at the municipal level also falls within provincial jurisdiction. Parliament has delegated health powers similar to those of the provinces to the territorial governments. The range of issues mentioned in the recent First Ministers’ health renewal agreement reflects the shared jurisdiction of the federal and provincial governments over health care. The need for cooperation between the federal government and the provinces in the area of health is as much a matter of constitutional law as it is of sound health policy.

Keywords: division of powers, Canada, jurisdiction, health, health care, spending, Constitution, 1867, 92, 92, federal, provincial, federalism, hospitals, property and civil rights, criminal, drugs, food, environmental, reproductive, First Nations, Aboriginal, civil rights public health, First Ministers