The provinces recently came up against yet another refusal from Ottawa to negotiate an increase in federal health transfers. The conclusion is clear: it is urgent that a viable federal-provincial partnership be concluded in order to ensure the sustainability of the public health care system. However, Ottawa’s financial contribution is not just a matter of goodwill. Under our Constitution, the federal government has an obligation to negotiate its fair share.
Posted at 9:00 a.m.
Section 36(1)(c) of the Constitution Act 1982 enshrines the commitment of Canadian and provincial governments to “provide all Canadians, at an acceptable level of quality, with essential public services”. Health is the prime example of such a service. This obligation differs from the equalization program and concerns conditional federal transfers such as those provided for in the Canada Health Act.
Article 36 is a compromise negotiated during the patriation of the Constitution. Our public healthcare system was created on the initiative of the federal government, which established a shared-cost program on condition that certain criteria such as free and universal healthcare were met.
The provinces have thus become dependent on Ottawa to finance services whose costs have continued to increase. Devoting federal financial participation therefore aimed to reduce budgetary uncertainty for the provinces.
This commitment was also ardently desired by Pierre Elliot Trudeau. The text of paragraph 36 (1), proposed by Trudeau Sr., explicitly refers to the International Covenant on Civil and Political Rights that Canada had just signed in 1976.
Mr. Trudeau, while he was a professor at the Faculty of Law of the University of Montreal, had moreover severely denounced the States which contented themselves with proclaiming the existence of socio-economic rights without giving them any real legal scope. [1]
Section 36 was therefore intended to enshrine genuine constitutional obligations.
The obligation to provide essential public services carries with it the corollary obligation of the federal and provincial governments to negotiate the financing and the conditions necessary to maintain accessible quality services. Already in 1867, when Canada was founded, a structural disparity in fiscal powers made it necessary to redistribute resources from Ottawa to the provinces. This disparity has only grown.
Condemned to agree
The federal government’s obligation to fund health care does not mean that it can unilaterally impose its views on the provinces. Ottawa must respect provincial legislative jurisdiction over health.
Nor can the provinces demand the payment of sums without agreeing to any minimum condition. The money paid must be used to provide the public services to which Canadians are entitled.
The federal government and the provinces are therefore obliged to negotiate in good faith… and condemned to come to an agreement.
In the context where Ottawa seems to refuse to sit down seriously at the negotiating table, it is important to point out that the constitutional obligation to negotiate could be sanctioned by the courts.
The detail of the sums paid is a matter of policy. However, courts can clarify the constitutional framework within which political actors have a responsibility to operate.
The Supreme Court thus concluded that the constitutional principles of federalism, democracy, protection of minorities, constitutionalism and the rule of law establish an obligation to negotiate between the partners of the federation on the assumption of a will clear secession of Quebec expressed by referendum. [2]
The same principles underlie the reciprocal obligation between Ottawa and the provinces to negotiate federal health transfers. In particular, the legal principle of federalism commands the avoidance of unilateral actions and the promotion of cooperation. The rule of law also requires that all provisions of the Constitution, including section 36, be considered “mandatory”. [3]
Recall federal bonds
The Supreme Court concluded that the Constitution must be interpreted in such a way as to “reinforce the confidence” of the federative partners. [4] Clearly, Ottawa’s refusal to negotiate is seriously undermining the provinces’ confidence in the federal pact. A judicial declaration recalling federal obligations could help remedy this situation.
Three Canadian Courts of Appeal, Nova Scotia [5]Manitoba [6] and in British Columbia [7]expressed the view that the obligation to provide essential public services could be sanctioned by the courts when the conditions conducive to assessing the issue are met.
Funding for the Canadian health care system is critical. The federal government unilaterally reduced its initial contribution from 50% to 22%. The provinces estimate that a 35% share would be required to ensure the viability of the services.
The Supreme Court did not hesitate to sanction the Quebec law which restricted access to the private health care system since our public system did not have the resources to provide adequate services. [8]
The conditions may have been met for the courts to remind the federal government of its fair share of responsibility for financing this public system and of its obligation to negotiate with the provinces.
1.Pierre Elliot Trudeau. “Economic Rights” (1961) 8:2 McGill Law Journal 121, p. 125
2. Reference re Secession of Quebec, [1998] 2 RCS 217
3. Reference: Manitoba Language Rights, [1985] 1 RCS 721
4. Reference re Supreme Court Act, paras 5 and 6 [2014] 1 SCR 433, par 49
5. Cape Breton (Regional Municipality) vs. Nova Scotia (Attorney General)2009 NSCA 44
6. Manitoba Keewatinowi Okimakanak Inc. vs. Manitoba Hydro-Electric Board 1992 CanLII 8479 (MB CA)
7. Canadian Bar Association. vs. British-Columbia2008 BCCA 92 (CanLII)
8. Chaoulli vs. Quebec (Attorney General), [2005] 1 SCR 791