The Constitutional Basis for Federal Regulation of Health

Abstract

This note reviews the parameters of the federal government's constitutional jurisdiction in the field of health in light of recent case law. In particular, it examines the spending power as a basis for the Canada Health Act and the criminal law power as a basis for federal food and drugs and tobacco products control legislation. It also considers the possible use of the peace, order and good government power as a supplementary or alternative basis for federal health regulation. The paper points out that health care reform primarily involves changes to the provision of services, which remains largely within provincial jurisdiction, and that provincial governments have increasingly rejected federal intervention in this area unaccompanied by federal funds. As a result, federal involvement in health care has become a matter of fiscal rather than constitutional politics.

Keywords: constitution, law, Canada, federalism, federal, government, health, healthcare, jurisdiction, spending, Canada Health Act, criminal, food, drugs, tobacco, peace, order and good government, provincial, funding