“Health” and the Distribution of Legislative Powers in the BNA Act, 1867

June 27, 2011 at 7:48 pm 1 comment

Here are some ideas (hypotheses?) emerging from my current research on infectious disease legislation and the advent of state medicine in 19th century Canada:

  • Prior to confederation, legislation on the subject of “health” can be grouped under three general headings: quarantine and emigration laws, laws relating to vaccination, inoculation and sanitation, and laws relating to hospitals and health professions. The theme common to these three areas is the prevention and management of infectious and contagious diseases (indeed, it appears as if the fear and threat of diseases provided the impetus for state involvement in the regulation of medicine and health care, but that is a story for another post). These areas, with the exception of quarantine and emigration, emerged from and remained under the legislative and administrative mandates of local authorities until confederation (see my next point for why quarantine and emigration is excepted). More interestingly, at the time of confederation, these two areas had not coalesced into a precise, or (at a minimum) recognizable legislative notion of “health” or “health care”. One could therefore hypothesize that this situation may account for why health—unlike “quarantine and the establishment and maintenance of marine hospitals”—is not specifically enumerated as a head of power under the British North America Act (BNA Act), 1867.
  • In 1852, the Province of Canada legislature consolidated all statutes relating to quarantine and emigration under one enactment, thus repealing a number of quarantine statutes that had their origin in pre-union Canada. This may have contributed to a “vision” of quarantine as belonging to a class of subjects of national interest, despite the fact that early quarantine laws dealt mainly with local measures to prevent the importation of infectious and contagious diseases (especially in Lower Canada and Nova Scotia [see e.g. here, here and here]—Upper Canada entered the 1841 union without any major quarantine legislation, for reasons I speculated on in an earlier post). The 1852 consolidation specifically repealed the principal Lower Canada legislation dealing with quarantine in the context of importation of diseases, and replaced it with a section which empowered the Governor in Council to issue regulations relating to quarantine measures directed at the “preservation of the Public Health” and preventing the “introduction and dissemination of disease.”

So what are the implications of all this? First, I think there is a strong historical link between infectious disease regulation and the development of “state medicine” or more specifically, state/legal intervention in health/care. Second, the absence of a precise concept of “health” in the legislative context, and the fact that much of what made up that concept was handled by local authorities prior to confederation may account for why the subject of health is missing from the distribution of powers scheme in the BNA Act, 1867. What we find instead is that under the BNA Act, the legislative power over the establishment of health care institutions—one of three major areas of “health” legislation prior to confederation—falls to the provinces. This head of power, along with powers over property and civil rights and matters of a merely local or private nature in the province form the locus of authority that informs the present notion that the provinces occupy more of the field of health governance. Conversely, the responsibility for quarantine legislation may have shifted with the 1852 consolidation.

Interesting side note: Under the 1852 consolidation, any “Lunatic, Idiotic, Deaf and Dumb, Blind or Infirm Person” arriving in Canada must be accompanied by family members. If unaccompanied, and if in the opinion of the Medical Superintendent, “likely to become permanently a public charge,” the Master of the vessel in which such a person arrived in the Province must execute a bond with “two sufficient sureties” in the amount of seventy-five pounds to indemnify the Province for any expenses incurred for his/her maintenance and support within three years of arrival. This suggests that during this period, the maintenance of infirm and mentally ill residents of Canada was paid for by relatives or, in the case of persons without relatives, out of the public purse. What would have been the quid pro quo for the latter arrangement? Perhaps something similar to the Poor Law infirmary system?


Entry filed under: Health legislation. Tags: , , , , , , .

The First Patent Act? Common (Public) Nuisance and the Fear of Smallpox

1 Comment Add your own

  • 1. Brock  |  February 21, 2012 at 9:59 pm

    Hi Ubaka, I came to this blog via the UofA Faculty Blog.

    I was wondering if you considered what the federal government’s reaction was to the negotiation and insertion of the “Medicine Chest Clause” in Treaty 6 in 1876? At confederation, Indians and Lands reserved for Indians were under federal jurisdiction and I thought this concept might help you with your work. Wouldn’t mind your two cents on it as well 🙂

    I am also not sure what’s been written on it, nor what record group such correspondence/memoranda it would be in.

    A few quotes from Alexander Morris’s book:

    “I will speak of what you asked yesterday and today. I told you yesterday that if any great sickness or general famine overtook you, that on the Queen being informed of it by her indian agent, she in her goodness would give such help as she thought the Indians needed” (pg 216)

    “A medicine chest will be kept at the house of each Indian agent, in case of sickness amongst you.” (pg 218).

    Hope all is well.



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Reflections on health law and policy in early Canadian history


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