Jurisdiction over health law in Canada is a divided responsibility. The federal parliament has jurisdiction as does each province. As a shared power, the dividing line between jurisdictions is not always easy to decipher. This split jurisdiction also leads to many real conflicts. Where this occurs, the dividing line is determined and clarified by the courts through constitutional challenges, references and other court proceedings. Therefore, in each factual matrix, it must be determined which legislature is predominant.
The Canadian parliament’s jurisdiction over health care stems from their powers over funding, the criminal law, and the power to make laws for the peace, order and good government of the country.
The powers granted to the provinces in relation to health care are their right to make laws dealing with property and civil rights, hospitals, and all matters of a local nature. Provinces, therefore, regulate all health care delivery and health insurance.
The Canada Health Act (CHA) deals with funding. Given that federal funding of health care is both welcome and necessary, the conditions the CHA imposes on provincial health insurance plans are important to understand. The conditions imposed, if met, lead to a federal transfer of wealth payments. Those conditions ensure that the provincial programs:
Therefore, the federal power over spending and good government allow it to regulate health care indirectly. No province will likely risk the loss of such funding and therefore will comply with the funding conditions.
The federal government also uses the Income Tax Act (ITA) to promote health care, and health care initiatives. The ITA allows for deductions from income for both individuals and companies. In this way, the federal government can more directly influence health care in Canada.
Thirdly, the federal government can use its power to regulate criminal law to influence health care. This power includes the power to protect the health of all Canadians. In this way, the federal government can control the marketing, sale and distribution of drugs, medical devices, health products and food. This has led to the passage of the Food and Drugs Act which sets out the regime to be followed when an entity wishes to manufacture, test, package or label any regulated product. The regime is focused on the safety and quality of such products. The most notable regulated products are medications. Manufacturers must fully inform the consumer and prescriber of the potential benefits and risks of use.
Lastly, the Canadian parliament can use the peace, order and good government power to deal with a variety of health care issues including emergencies, epidemics, smoking, cannabis etc.
The power to regulate property and civil rights is a very broad and sweeping power. This has led to legislation regulating capacity and consent, guardianship of the incapacitated, investigations conducted by medical examiners/coroners and the creation of public health legislation concerning the prevention, treatment and control of communicable diseases.
This power also allows the provinces to regulate health care professionals. All twenty-seven types of health care professionals are regulated through this legislation and their colleges. This includes such matters as their licensing, credentialing, ethical obligations, education as well as disciplinary measures set out in the specific legislation that is applicable to their practice.
Finally, this power also permits control of some aspects of the manufacture and sale of drugs.
The second major provincial power is their right to regulate hospitals. There is a lot of legislation fostered by this power including the Public Hospitals Act, the Corporations Act, the Commitment to the Future of Medicare Act and the Local Health System Integration Act. In the future, when the Not-for-Profit Corporations Act is passed, it will apply to hospitals instead of the Corporations Act.
The final power of the provincial governments is the power over matters of private or local nature. We have discussed their health insurance regimes above. In addition, there is a myriad of Acts dealing with this power including the Health Protection and Promotion Act and the Municipal Act.
The creation and regulation of health law and its professionals is a divided responsibility in Canada. Health care is a massive and ever-changing field. Both levels of parliament have adapted and continue to do so as the circumstances change. It is important to carefully examine each issue and then determine the appropriate regulator and associated rules. This is but a short and abbreviated overview.
At Wise Health Law, we keep abreast of evolving developments in health care law and governance, and regularly blog about recent legal decisions affecting health care industries, health associations, and health professionals. If you have questions about changes to health care governance or about health law in general, contact our health law lawyers at 416-915-4234or contact us online.
In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.
Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.
Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPA did not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.
In early August 2020, the Federal Minister of Health granted an exemption under the Controlled Drugs and Substances Act (CDSA) to four terminally ill Canadians to use psilocybin in their end of life care.
Psilocybin is one of the active ingredients/chemicals in “magic mushrooms,” the other is psilocin. Both psilocybin and psilocin are controlled substances under Schedule III of the CDSA. The sale, possession, production, etc. are prohibited unless authorized for clinical trial or research purposes under Part J of the Food and Drug Regulations. Both have been illegal in Canada since 1974. According to Health Canada, there are no approved therapeutic products containing psilocybin in Canada. However, the purified active ingredient, i.e. psilocybin, is being studied in supervised clinical settings for its potential to treat various conditions such as anxiety and depression.