Healthy Communities: Public Health Law at the Supreme Court of Canada

• Author: Barbara Von Tigerstrom
• Pages: 81-110

81

Healthy Communities: Public Health Law

at the Supreme Court of Canada

barbara von tigerstrom

A. INTRODUCTION

According to one frequently cited denition, public health is “what we, as a

society, do collectively to assure the conditions for people to be healthy.” It is

“public” in the sense both of collective action (primarily, though not exclusively,

government action) and of concern with the health of a population rather than

specic individuals. As a result, the legal issues arising in public health tend to

dier from those most prominent in the context of medical treatment; whereas

the latter is chiey concerned w ith rights a nd obligations in the relationship be -

tween hea lth care provider and pat ient, in public health t he questions are more

likely to involve the powers and duties of government to protect the health of

its population. Public health law has been dened as the “study of legal powers

and duties of the state to promote the conditions for people to be healthy … and

the limitations on the power of the state to constrain the autonomy, privacy,

liberty, proprietary, or other legally protected interests of individuals for the

protection or promotion of community healt h.”

* anks are due to the pa rticipants at the ird National Hea lth Law Conference for

their comments and sugg estions, Tracey Bailey for usef ul discussions, El aine Gibson for

very helpful ed itorial suggestions , and Zoe Oxaal (LL .B., University of Sask atchewan,

) for providing excel lent research assistance.

 Institute of Medicine , e Future of Public Health (Washington, D.C.: Nationa l Acad-

emies Press, ) at .

 Lawrence O. Gostin, “Health of the People: e Hig hest Law?” () J. L . Med. &

Ethics  at  [Gostin, “Hig hest Law”].

Ibid. at –.

82 Health Law at the Supreme Court of Canada

e outlines of the Supreme Court of Canada’s jurisprudence on pub-

lic health law are not as easy to identify as they perhaps are in other areas of

health law; it is not even clear whether there is a coherent body of cases and

principles that could properly be referred to as the Court’s public health law

jurisprudence. However, a number of cases have considered important issues

dening the scope of government action for the protection of public health. In

fact, if one uses an expansive denition of the eld, a broad range of cases have

some connection to public health protection, including, for example, cases in-

volving interpersonal violence or motor vehicle accidents as sources of injury;

information and privacy issues relevant to public health surveillance; intel-

lectual property protection of pharmaceutical products used in public hea lth

eorts; criminal responsibility for exposing others to a risk of transmission of

infectious disease; treatment of substance abuse and addictions; and liability

for harms resulting from a vaccination program. In addition, there is also, of

course, an almost inn itely large and varied body of case law that could be po-

tentially relevant to public health.

is paper will focus on a smal ler group of cases that address the nature

and limits of government power to regulate for the protection of public health:

RJR-MacDonald Inc. v. Canada (Attorney General) and Rothmans, Benson

& Hedges Inc. v. Saskatchewan, involving challenges to tobacco control legis-

lation;  Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town),

regarding the scope of municipal powers to regulate pesticide use for the pro-

tection of human health; and R. v. Malmo-Levine; R. v. Caine, a challenge to

narcotics control legislation concerning the use of criminal penalties to address

public health harms from drug use. ese cases, despite their diverse subject

 On injuries as a public hea lth issue, see, for exa mple, Louis Hugo Francescutti , Tracey

M. Bailey, & Trevor L. Strome, “I njuries: Public Health ’s Neglected Epidemic” in Tracey

M. Bailey, Timothy Cau leld, & Nola M. Ries , eds., Public Health Law and Polic y in

Canada (Markham, Ont.: Lex isNexis Canada, ) .

 See, for example, E laine Gibson, “Public Health I nformation Privacy and Con dential-

ity” in Baile y, Cauleld, & Ries, ibid. at .

 See, for ex ample, Apotex Inc. v. Wellcome Foundation Ltd., []  S.C.R . .

R. v. Cuerrier, [] S.C. R. ; R. v. Williams, [] S.C. R. .

 See , for example, Winnipeg Child and Fam ily Services (Northwest Area) v. D.F.G., []

 S.C.R . ;Schneider v. British Columbia, []  S.C.R.  [Schneider].

Lapierre v. Québec (Attorney General), []  S.C.R . .

 [] S.C. R.  [RJR-MacDonald].

 [] S .C.R.  [Rothmans].

 []  S.C.R.  [Hudso n].

 [] S.C. R.  [Malmo-Levine].