Most famous public health law cases (Walkerton, SARS, WNV, HIV/AIDS, etc.) are conducted by lawyers who do not consider themselves to be public health lawyers. A significant portion of the Bar will deal with public health legal issues in the course of their careers – either through civil, criminal, class action, inquiries or commissions. Bay Street and Boutique firms, the Department of Justice, the Ministry of the Attorney General, transnational lawyers as well as legal policy lawyers are consistently involved with major cases that deal with public health. Major controversies have and will continue to evolve regarding the role of the state versus the rights of individuals - from smuggling and taxation of tobacco, the proposed criminalization of HIV/AIDS to avoid transmission, the detainment by quarantine order to avoid the spread of infectious diseases, private sector insurance battles over the Walkerton water crisis, labour issues and employer responsibilities to health care workers during outbreaks, freedom of expression in restaurant inspections, food safety regulations to avoid listeria outbreaks, forced vaccinations to avoid epidemics, and the privacy and confidentiality of genetic information.
The goal of this course is not to create public health lawyers but to give any lawyer a competitive edge by effectively analysing and arguing State versus individual legal rights when dealing with infectious and chronic diseases. Students will be briefed on the legal and public health context, the caselaw and the experiences and insights of guest speakers who are lawyers that have worked on high profile cases.
Public health law can generally be defined as the study of the legal and regulatory framework surrounding the state’s role as promoter and protector of the health of the population. It is built around questions such as: What are the legal powers of the state and state actors in implementing public health measures? What are the limits of state action, particularly with respect to coercive measures (quarantining, compulsory testing and treatment, compulsory vaccination) that intrude upon the exercise of individual rights? Which regulatory regime is best suited to serve specific public health concerns? To what extent can the state limit proprietary interests for the benefit of the health of the population?
Throughout the course, examples of public health measures will be analyzed to explore the role of law and regulation in promoting and protecting public health. The course will consist of lectures by the instructor, student presenttions, guest presentations from practicing lawyers and class discussions.
The public health infrastructure in Canada and the interplay between various Canadian statutory and constitutional provisions will be emphasized. The course will use public health case studies to explore how various legal and regulatory regimes interact in the context of public health interventions; and whether/how values embedded in public health law can be reconciled with the values reflected in, for example, human rights, privacy and property law. Case studies include: HIV/AIDS, tobacco, vaccination, and reporting of disease and infection.
