Page - 33 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

33Have the Post-SARS Reforms Prepared Us for COVID-19? capacity within Canada’s formal legal framework. We conclude by identifying both the lessons learned from Canada’s legacy from past pandemics and some of the issues that remain. Power to Regulate in Relation to a Pandemic The Constitution2 does not assign “health” to either the provinces or the federal government. Instead, both levels of government have responsibilities in this area. According to the Supreme Court of Canada, health is not “subject to specific constitutional assignment but instead is an amorphous topic which can be addressed by valid federal or provincial legislation, depending in the circumstances of each case on the nature or scope of the health problem in question.”3 Several provincial heads of power are relevant to health, includ- ing the power to regulate hospitals,4 property and civil rights, and mat- ters of a merely local or private nature. These powers have resulted in provinces assuming many responsibilities in the health sector, includ- ing health insurance, the regulation of health professionals, the delivery of health care services, and the regulation of public health. Provincial public health laws cover a variety of topics, including the abatement of health hazards, inspection and closure of infected premises, reporting of communicable diseases, and examination and isolation of infected persons, all of which are generally enforced by medical officers of health. Most provincial public health laws establish a Chief Medical Officer of Health, who often has sweeping powers to implement public health orders they deem necessary to contain the spread of a communi- cable disease. Provinces also have emergencies legislation that allows them to take exceptional measures such as seizing goods and real prop- erty, closing premises, or limiting travel to or within the province. The Constitution assigns the power to regulate “municipal insti- tutions” to the provinces. There are several provincial approaches to the delegation of powers to municipalities.5 However, generally speaking, they may take various actions in response to a pandemic, 2. Constitution  Act,  1982, ss 91-92, being Schedule B to the Canada  Act  1982 (UK), 1982, c 11. 3. Schneider v The Queen, [1982] 2 SCR 112 at 142, 139 DLR (3d) 417. See also Martha Jackman, “Constitutional Jurisdiction Over Health” (2000) 8 Health LJ 95. 4. An exception to this is “marine hospitals,” which are a federal head of power. 5. For a detailed discussion of municipal powers, see Alexandra Flynn, this volume, Chapter A-8.