Deference in the public health context.

• Author: Shelley, Jacob
• Position: Canada

News media report on a daily basis about real or perceived public health threats--including infectious and chronic diseases, environmental pollutants and novel biotechnologies. Governments, public health officials and regulators must address public health risks and in so doing, often implement legislative, policy and operational actions that restrict fundamental rights and freedoms. In response, the legal legitimacy of those actions may be constitutionally challenged, leading to the problem of balancing individual rights with public health protection.

How ought legal principles, particularly those related to constitutional rights protected under the Charter of Rights and Freedom, (1) be interpreted and applied to safeguard rights and freedoms in the public health context? This article will review some of the key points of a larger study currently underway that is examining the degree of deference courts have typically given to public health actors, (2) particularly when such actions impinge on the rights of individuals. The study is attempting to better understand what role deference has played by examining court decisions in which judges have been confronted with determining whether restrictions on individual rights are justified to promote the health of the community. The aim is to better understand how the courts might respond in situations where public health initiatives infringe upon constitutionally guaranteed rights.

Before proceeding, it is necessary to first clarify what is meant by "public health" and "deference". The field of public health encapsulates those practices intended to improve and protect the health of an entire community. (3) Public health law, therefore, is the "study of the legal powers and duties of the state to assure the conditions for people to be healthy ... and the limitations on the power of the state to constrain autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for the protection or promotion of community health." (4) Deference can be defined as the submission of one to the judgment of another. In the judicial context, deference has been defined as a form of lower level constitutional review. (5) In a recent Supreme Court of Canada decision, the need for deference was determined to arise in situations where the government was "required to mediate between competing interests and to choose among a number of legislative priorities." (6) In the public health context, judges must determine if public health actions warrant deference.

The need to show deference in the public health context has been amplified since 1982 with the addition of the Charter to the Canadian constitution. Public health actions are now subject to an additional constitutional review, as they can be scrutinized if they are perceived to violate the rights of an individual protected by the Charter. To be sure, not all Charter rights come into play in the public health context. Generally, liberty rights are implicated more often, as the freedoms people would normally enjoy are restricted in order to safeguard the public's health.

Consequently, the Charter challenges most often before the courts involved section 7, "the right to life, liberty and security of the person and the right not to be deprived...