Appendix F: Evaluation of the surveillance function at the Public Health Agency of Canada – F/P/T authorities for public health surveillance

Appendix F. Federal, provincial and territorial authorities for public health surveillance

The constitutional, legislative and regulatory framework governing public health and public health surveillance is complex.

The Constitution Act, 1867^{Footnote 115}, outlines the division of responsibilities among the federal, provincial and territorial governments. Under the act, health, including public health, is a shared responsibility. Since no one level of government has exclusive jurisdiction over health, a law relating to health will come under federal or provincial/territorial jurisdiction, depending on its purpose.

Federal mandate

Under the Constitution Act, the Government of Canada derives its jurisdiction over public health, in part, from its power over quarantine under section 91(11) and through its criminal law power under section 91(27) to protect Canadians from hazards that could be a danger to public health. This includes legislation pertaining to the safety of food and drugs or to environmental contaminants. Most significantly, the Government of Canada has the authority to act in the context of a public health emergency, such as a pandemic, under section 91, which grants power over “peace, order and good government.” The peace, order and good government power allows Parliament to enact laws that would normally lie within the jurisdiction of provincial and territorial legislatures where the dimension of the problem is a pan-Canadian concern rather than local in nature, as well as those that are deemed to be of an emergency nature. The federal government may enter into treaties binding on Canada, but under the Constitution Act, it can implement them only in areas of federal jurisdiction. If federal legislation is required to implement a treaty, then there is a need to determine whether federal heads of powers are broad enough to sustain such legislation. If the treaty deals with a matter under provincial jurisdiction, then it cannot be implemented by Parliament.

Under the Constitution Act, the Government of Canada may also involve itself in public health through the use of its spending power, which is inferred from Parliament’s jurisdiction over public debt and property (section 91(1)(a)) and its general taxing power (section 91(3)), which enables the Government of Canada to raise funds and spend them in any way that it deems necessary. This could include providing federal transfers to the provinces for public health programs and/or entering into legal contracts to develop public health initiatives.

In addition to these powers, the Constitution Act gives the Government of Canada authority over the census and statistics.

Finally, the Government of Canada is responsible for certain groups of people including: military, militia, and naval services; First Nations and Inuit; and federal inmates, and concurrently with the provinces, immigrants to whom it delivers various health services, including public health.

The Public Health Agency is the primary organization within the health portfolio responsible for assisting the Minister of Health in exercising or performing the Minister’s functions in relation to public health. The Public Health Agency was established to contribute to federal efforts to identify and reduce public health risk factors and to support national readiness for public health threats, including responding to a public health emergency. The preamble to the Public Health Agency of Canada Act^{Footnote 116} outlines the measures that the Public Health Agency can take in the area of public health, including health protection and promotion, population health assessment, health surveillance, disease and injury prevention and public health emergency preparedness and response. These public health measures may be accomplished through collaboration with other public health bodies in order to coordinate federal policies, cooperation and consultation with provincial and territorial governments, cooperation with foreign governments and international organizations and other interested parties, to contribute to federal efforts to identify and reduce public health risk factors and to support national readiness for public health threats.

Provincial/territorial mandate

Under the Constitution Act (s.92(7)) the provinces can legislate in matters relating to the establishment, maintenance and management of hospitals, asylums, charities and eleemosynary institutions; matters in their province of a local or private nature (92(16)) as well as over municipal institutions. Provinces and territories have affirmed their role in public health and public health surveillance by passing public health legislation. As well, some provinces have regulations governing infectious diseases. All provinces and territories have regulations that establish a list of reportable diseases requiring specific measures. This list forms the basis for the implementation of reporting systems. Provinces and territories have also passed legislation governing emergencies. Generally these address infectious disease epidemics and other situations that present a serious threat to public health.

The local level delivers the core programs in public health. Provinces and territories work collaboratively with a wide range of parties at the local level, including clinicians, public health staff, primary care providers, hospitals, emergency rooms, laboratories, schools and other service providers and collectors of health-related data. The local level is usually the first line of detection of new or emerging diseases, even when they are not designated as reportable, as well as other potential threats to public health, including environmental health problems. Provincial and territorial legislations require local public health staff to report notifiable diseases to public health officials. While the reporting chain may vary among the provinces and territories, the local medical officer of health will usually be the first one to receive medical information and to forward it to the provincial or territorial authority for public health. Therefore, provinces and territories are important partners and contributors of surveillance data to the Public Health Agency because of their responsibility for health services and as data custodians for many of Canada’s health administrative data, as well as a range of clinical data (e.g. laboratory and drug data). However, collaboration between these parties is needed to ensure that the legal obligations of the Government of Canada are met, nationally and internationally.

Legislation governing surveillance

The federal legislation governing public health surveillance activities are the Department of Health Act, the Public Health Agency of Canada Act and the Statistics Act.

The Department of Health Act (1996) gives the Minister of Health the power, subject to the Statistics Act, to collect, analyze, interpret, publish and distribute information related to public health, but it does not specifically cover personal information. The Minister may do this but is not required to do this (s.4(2)(h)).

The Public Health Agency of Canada Act also does not require public health surveillance. This may be done by the Public Health Agency in the course of its mandate which is to assist the Minister in exercising or performing the Minister’s powers, duties and functions in relation to public health (s. 3). In fact, the Preamble of the Act mentions public health surveillance as one of the public health measures that the Government of Canada wishes to take. Further, section 15 would allow (but does not require) the Governor in Council, on the recommendation of the Minister of Health, to make regulations respecting the collection, analysis, interpretation, publication and distribution of information relating to public health, for the purpose of paragraph 4(2)(h) of the Department of Health Act.

Section 3 of the Statistics Act sets out the duties of Statistics Canada which comes under the Minister of Industry. These duties are:

1. to collect, compile, analyse, abstract and publish statistical information relating to the commercial, industrial, financial, social, economic and general activities and condition of the people
2. to collaborate with departments of federal/provincial/territorial governments in the collection, compilation and publication of statistical information, including statistics derived from the activities of those departments
3. to take the census of population of Canada and the census of agriculture of Canada as provided in this Act
4. to promote the avoidance of duplication in the information collected by departments of government
5. generally, to promote and develop integrated social and economic statistics pertaining to the whole of Canada and to each of the provinces thereof and to coordinate plans for the integration of those statistics.

The Statistics Act also provides that the Chief Statistician of Canada shall, under the direction of the Minister, collect, compile, analyse, abstract and publish statistics in relation to health and welfare (s. 22(c)). Again it is not a requirement that such statistics be collected but a provision allowing this to be done.

International Health Regulations

The International Health Regulations is a treaty. Implementing the International Health Regulations requires that a public surveillance system be set up in Canada. Thus, obligations flow from the treaty and their implementation requires that this be done in full compliance with the division of powers between the federal and the provincial governments. As a Treaty, the implementation of the International Health Regulations, in so far as it requires legislation, is subject to the rules governing the division of powers between the federal and provincial governments in Canada and thus subject to judicial interpretation.^{Footnote 117}

Role of the Minister of Health and the Public Health Agency

Section 4(1) of the Department of Health Act (1996) provides that the powers, duties and functions of the Minister extend to and include all matters over which Parliament has jurisdiction relating to the promotion and preservation of the health of the people of Canada not by law assigned to any other department, board or agency of the Government of Canada. Among the Minister’s powers, duties and functions are the protection of Canadians against risks to health and the spread of diseases; investigation and research into public health including the monitoring of diseases; and, subject to the Statistics Act, the collection, analysis and interpretation, publication and distribution of information related to public health. The Minister of Health’s duties also consist of cooperating with provinces to coordinate efforts for the improvement and preservation of health (s.4 (2)).

Although the Department of Health Act and the Public Health Agency of Canada Act do not expressly deal with the collection of personal information, Section 4 of the Privacy Act allows for the collection of personal information by a government institution if the collection relates directly to an operating program or activity of the institution. Therefore, in carrying out programs and activities to assist the Minister in the exercise of her powers, duties and functions relating to public health, the Public Health Agency could collect personal information for the purpose of an operating program or activity of the Public Health Agency if the collection relates directly to that program or activity.

The Public Health Agency is the primary organization within the health portfolio responsible for assisting the Minister of Health in the exercise or performance of her powers, duties and functions in relation to public health.