The Gradual Defederalization of Canadian Health Policy

Rohit Pradhan | 3rd October 2019

This Article is response to the Author Peter Graefe and Andrew Bourns work’s The Gradual Defederalization of Canadian Health Policy. Author’s observation is that the federal value of the state has eroded to the extent that, it has lost the essence of federalism.  This Article criticizes the observations made by the author. The Article will walk the reader through the aspect of Canadian Federalism, and how it is different from unitary form of governance. Topic of how Federalism is advantageous to a nation and how it’s been advantageous to Canada in recent times also, which wouldn’t have been possible if, Canada would have lost the essence of Federalism. The conclusion of the Author was influenced by French literature, this article discuss about the biases of French literature against Canadian Federalism. Extent of provincial autonomy tells the person, about the federal structure of a nation and views of Royal commissions are also taken in consideration, the importance of these Royal commissions has been explained, as to why these commission’s recommendations are taken into consideration. Further as the author in his work has used the health to justify the points, this article explains how matter of health has instead of eroding federal values have moved the nation toward cooperative federalism.

Canada is a federal state, some example of the federal states are United States of America, Australia etc.[1] Contrary to the federal system, one other system also exist, which is known as a unitary system.

A.   The federal system is different from the unitary form of Government.-

In a federal structure, the power is distributed among two entities, the first one being central government and other entity being the several regional authorities. This kind of distribution of power makes every individual subject to the law of both central and regional government. Both of such laws are not subordinate to any one, like the law of the Ontario’s legislation is not the creation of Canadian Parliament nor it can be taken from the same, likewise, Ontario and any other province will not be able to take away the law of Canadian parliament. This concept that provincial laws and Federal laws are not subordinate to each other, gives the essence of being a federal system.

While in Unitary form of Government, the power is centralized or accumulated in one national authority. Though there are other authorities with law making power, over their local territory. But the powers of these authorities are not immune from the power of central government. Power of authorities other than the central government, who has law-making power is given and can be taken away by the central government, and this phenomenon is what gives the essence of a unitary form of Governance.

It is presumed that there are mainly two levels of government, one the federal government whose power is prevalent throughout the country, while the power of regional provinces is limited to their territorial ambit, which generally makes an impression that federal power is higher than provincial power. Moreover, it is understood the fact that, if there is any implication between federal laws and provincial laws, generally federal laws prevail. While in Unitary form of government, all the law making entities can be said to be subordinate to the central government, such entities reflecting central governance only.

There is a balance of power between the federal government at the top and the regional government. This balance of power decides the stability of the nation, overpowering the regional governance can lead to the disintegration of such region into a new nation while overpowering of the federal government in real sense will erode the federal ideals of the country and make it more like unitary state.[2]

K.C. Wheare described “the federal principle” as “the method of dividing powers so that the general and regional governments are each, within a sphere, co-ordinate and independent.”[3]Though his definition was heavily criticized,[4]as he didn’t emphasize the ínter-dependence” of the regional authorities and the federal government in a federal state.[5]

Federal Governance has a lot of advantages.[6] A country which is very big and includes diverse regions, division of power is a great step to ensure that the provincial government works on the policy of local importance and central government works on the policy of national importance. These provinces work as a “social laboratory”, where certain innovative policies can be tested out.  If such policies turn out to be not helpful then, the nation as a whole has not been placed at risk.

If there is positive feedback from the implementation of such provisions can be copied by other provinces also. For example, after the passage of universal health care coverage in the province of Saskatchewan in 1962, it became a national programme

Brandeis J., said, “it is one of the happy incidents of the federal system that a single courageous state may, if its citizen chooses, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”[7]

The concentration of power leads to tyrant regime, the essence of the federation is distribution and separation of powers.[8] To the allegations that Federal Government is weak kind of government, another side of the coin can be, such weak government cannot impose any tyrant or draconian laws over provinces,[9] that there will not be any radical change. However if there comes the need for such change, province who is invested with such power in a federation can come up with policies that will if proves to be successful can be adopted more widely.

Quebec is a unique place. It’s a vast, densely populated French Speaking province within a much larger predominantly English speaking country. The people of the provinces are amongst the first Europeans to arrive in North America. It’s a province which voted not once but twice on whether it should leave Canada, and both times it narrowly failed.[10]

B.   Brief History of Quebec

The region that we know as Quebec has been populated and diverse for twelve thousand years. The first people to arrive in Quebec came around the year 11,000 BCE. By 10,000 BCE, as the population increased, the place becomes more hospitable to live. By this era, the Iroquois and Algonquin speaking peoples began to arrive in the province that we today know as Quebec. Time passed away and then for the first time Europeans arrived in Quebec. It was a French explorer named Jacques Cartier who took the Endeavour to discover the land, as claimed by some unauthenticated sources. On June 24 of 1534, he and his crew landed in the modern-day Gaspe Peninsula, and then claimed the entire land as the property of the king of France. He met with the indigenous people and then trade started between French and these indigenous people. Later on, La Rocque de Roberval took the task to colonize, Quebec which he called New France. He failed at the job, the in year 1608, Quebec City was found by Samuel de Champlain. There he was successful in early colonizing of the Quebec. Lot of valuable lands and property taken by the French crown was passed down to Catholic Churches. These churches were very powerful and played a very important role in changing the demography of the Quebec. Many Europeans ran to New France, to save themselves from feudalism, which was prevalent then in Europe. By the end of the 1600s, there were 20,000 French settlers all the way from the European nations. By 1700s the influence of Britishers also increased in North of America. After which both the nations involved in war. Britishers won the war and took over the Quebec. The citizens of Quebec were having no problem as long as there was French Legal System and the until they were allowed to speak French. After America got independence, their goal was to liberate Quebec from the claws of Britishers. They won the war in Montreal, but got defeated in Quebec. High Commissioner of Canada Lord Durham united Upper and Lower Canada, with a single governing body in Montreal, which then was moved to Toronto.

Then in the year 1867, the dominion of Canada came into existence. Though it became a country, its foreign affair was still subject to United Kingdom power. Quebec was governed by the Churches, mainly like hospitals, charities and French-language schools.

So then, a lot of rebellion activity took place in Quebec in order to gain autonomy for the French population from the so-called, centralization move of Canada.

Canada’s first president was French, it shows that Canadian society had always been a diversified and followed federal ideology. There came the time of depression, at that time, Quebecians god much greater belief in Church and the rebel became very rampant in order to save from changing world. Later on, Quebec, liberalized, secularized and started to globalise. By then Quebec had two referenda in which they failed with a slight margin.

The ideology of Federalism is the separation of power and promotion of diversity. To implement a policy in the federal nation, there is a need for coordinating policies across the government and this is one of the major intergovernmental challenges faced by the modern federation. In easy language, various governments will align the structure of the policy implementation in order to ensure the horizontal objectives, i.e., the whole of the federal nation will be achieving its objective by the intergovernmental coordination.[11]  In Canadian Federalism, intergovernmental relations are not much like the groups of dyadic relationship; of the executive of federal government and the executive of the provincial government. It is very difficult to achieve coordination because of the jurisdictional autonomy, which is provided to provinces is protected by the Canadian Constitution from any kind of federal encroachment.[12]There are very few areas of concurrent powers. Canada is also known as “jurisdictional federation”, emphasizing the fact that provincial governments have the ideology that cooperation is unworkable and is of no use.[13] So the provincial governance is actually very self-centric and doesn’t withstand any encroachment from the federal government, contrary to what has been argued and endorsed by the author.

If we study, and see an example, to understand the extent of autonomy, provinces were having that, there was very limited and restricted encroachment of the federal government upon provinces. The British North America Act, 1967 (Canadian Constitution) gave specific powers in the hands of provinces for exclusive control over their regional functions.[14] This shows that how the Canadian Constitution has demarcated a line, which let the provincial government deal with the regional politics, staying away from the federal government away. Yet another example of an excellent federal autonomy.

C.   What is the Royal Commission?

A royal commission is just like an inquiry committee, which will investigate upon a certain matter, such matter for which policy has to be made and such investigation will be impartial in nature, and will report the investigation to the cabinet. Such a recommendation is then taken into consideration by the cabinet. The reason they take the recommendation of Royal commission into consideration is due to the fact, that the commissioner of the Royal Commissioner is not any politician but an expert on the field, the Royal Commission is working upon. For example, if this is the matter of health care, then the appointment of the commissioner will be of the person having health care skills. In this case, Royal commission is made under the Inquiries Act.

D.  Role and Importance of the Royal Commission.-

Royal Commission has been very keen and has been a very important mean for maintaining a proper structure of Federalism. Under the instruction of Parliament, Canadian Government formed Royal Commission in August 1937 to study of the problems of Canadian Federalism. In the Canadian context, there is a great role in the part of Royal Commission in the matter of social policy development, as due to of their influence upon the social policy maker. It is not like that their recommendations are binding upon the social policy maker, but again Royal Commission is one of the most influential bodies that contribute to shaping the nature of Policies.[15] Commissions upheld the demands of Public that channelizes the political energy toward the “vision of the social whole”.[16] The royal commission has been the part of the force that has shaped the Canadian public policy.[17]For example, Canada’s current health system can be said the creation of the Royal Commission’s role played by the discussion of Health Care of 1964.

E.   Establishment of Rowell-Sirois Commission

The 19^th century was the time when health was subject to individual administration and hospitals were subject to a religious group.[18] In 1867, the main health problem persisting was that of cholera, smallpox and typhus, and the only control available was maritime quarantine.[19] Provinces, as well as federal power, had established their own department of health in around 1919. In 1930 due to Depression, when provinces were financially breaking down, these provinces turned toward federal government for help and to the response of such help, the government had given out around one billion dollars in 10 year, i.e., from 1931 to 1941 as grant-in-aid to the provinces. This shows that how there existed the system where no one is forcibly intervening to anyone’s jurisdiction. Further, in order to support the provincial policies, during 1935, the federal government came up with, the Employment and Social Insurance Act, which was introduced for the purpose of providing social security benefits which included health benefits. Further provinces were not comfortable with this instance and then that act was declared ultra vires on the British North America Act, the reason it because, social security is a provincial jurisdiction. And then the controversy started, somehow ironically no one was encroaching on other’s jurisdiction. And then after to clarify the issue, the Rowell Sirois Commission was established.[20] Commission elaborated the ambit of health care issue and discussed about the role of the province as well as the state in the development of comprehensive health care matter. This report was not taken into consideration; the reason for this could be that this report was focusing on the recommendation of centralization; maybe the object of the report was for proper policy execution. But Canadian federalism, now being a robust ideology is for a reason that it didn’t let the Rowell Commission report to influence.

Unlike Rowell report, this report didn’t dig too much on federalism. This commission also triumphs the role of the province for provincial health policies and not the federal government. One of the recommendations was that health care, will be under the private sector or with the local authority.[21] And the Federal government shall not assume any rights, other than the rights given by constitution on healthcare area. Halls Commission was affirmative of only one extension of healthcare segment and that was the funding for such healthcare policy propounding from provinces.[22] Hall commission was affirmative for the provincial administration over the issue of health as per their preferences. Commission supported the goal for the non fiscal role of federal Government over health segment in future, or if federal government still gives fiscal support to the provinces, it would be barred from taxing the subject which is exclusively for provinces, in this case, it is health policy. Even though Hall commission stated about the fiscal support of the federal government to the province, it cannot be regarded as absolute defederalization. As it is from historic time, that province took benefit from the federal government who has fiscal might over the provinces. So mere help cannot be regarded as defederalization of Canadian Health Policy.

Historically, the provincial government has been invested more with the power to manage and regulate health care issues rather than that of the federal government.[23]

There is the concept of upward diffusion, for instance, during the 1960s, there was one health care plan and that was Canadian universal health care coverage, this policy first emerged at the provincial level. Later on Federal government started to finance this and encourage this plan, and later on also provided the guidelines for the provincial plan.[24]This governmental behaviour can be understood as upward diffusion.

The prevalence of the phenomena of upward diffusion has to lead to provincial autonomy in the field of health care policy. There was a shift on the working of the mechanism, mechanism which was prevalent in running of health care policy, which was after the passage of universal health care coverage in the province of Saskatchewan in 1962.[25] Considering the fact that provincial autonomy, leading to self-administration and creation of a system by the state is recognized; due to the fact that federal government funds to such provincial system. Due to which Canada does not have a single centralized health care system but it has ten provincial and three healthcare systems.[26]Here, after the passage of universal health care coverage in Saskatchewan, same health care coverage was followed by the rest of the Canada.[27] From here and on horizontal diffusion became evident. This has resulted in inter-provincial coordination. Furthermore, to strengthen this inter-provincial coordination and unifying ties between these province, the federal government passed Canada Health Act in 1984, which had five underlying principles that must be accomplished to receive the federal funding,[28] and these principles are as.-

1. It must be of universal application
2. It must be comprehensive
3. It must be accessible
4. It must be portable
5. It must be publicly administered.

Federal government has been traditionally funding to the provincial government policy since the time the idea of Canadian Federalism was robust, in that time; there was very less coordination among provinces, which changed in 1984, after passing of Canada Health Act, it was the first successful step to harmonize the coordination among provinces without eroding the federal values. So we can’t say that mere interference of federal government in order to harmonize the inter-provincial relationship, which is even noncohesive in nature doesn’t amount to an erosion of federal values.

In 1982, the Supreme Court of Canada ruled that “health is a type of matter which shouldn’t be treated as a mere constitutional assignment, the reason, is that the matter is not a solid but amorphous in nature, which can be deal only with a valid federal or provincial legislation and the method of addressing the matter will depend as the case pertaining to this matter are dynamic nature. So in some category of cases, it will need federal-provincial cooperation.[29]And such cooperation is not eroding the federal values of the state. It is only the role that the federal government is playing in order to make the provincial health care policy a success.

The topic “health”,[30] is a very wide term, which encompasses the mere definition of constitutional assignment, it is more of the amorphous topic, which entirely encompasses the federal as well as provincial jurisdiction.[31] It requires the cooperative federalism for proper implementation of health care policy.

S. 91 of the Constitution Act, 1867, provides power to federal government over the peace, order and good government of Canada; these matters extends to public health also, that matter which has attained the national interest or if it is the matter pertaining to an emergency.[32]The Privy Council has put the matter of “epidemic of pestilence”, in the category of matter pertaining to an emergency,[33]hence to such matters it will be the federal government who will be playing the role in making of such policy. As stated earlier, topic “health” is of very wide term and has a great importance, Federal power deals with criminal conduct and it is federal government only which will play the role in punishing someone, producing or selling products like narcotics and tobacco, which is hazardous to public health,[34]here we can see that how the matter of “health” is broad in current context. That’s why this topic of health is considered as amorphous and matter which is this big, should have to be dealt with cooperation and hence cooperative federalism comes to play.

11. Cooperative Federalism.-

The Constitution recommends for the eleven legislative bodies each engaged in policymaking, implementing, etc. in their jurisdictional limits independently. However, in many fields, it needs more than the effort of just one single legislative body for an effective policy making and it’s implementing. Particularly for the provision, which deals with humanitarian sentiments, for example, health, education, income maintenance and other public services are some of the matter. Notably, health is also one of them. The nexus of relationships between the executive of central government and executive of regional government gives the essence of federalism and through these relationships, the course of consultation exists. It is due to cooperative federalism, that there is a shift of the wealth from richer provinces to poorer provinces, or health care management. It is required that inter-governmental relations continue for proper policy-making and its implementation. It is known that intergovernmental relation is the essence of the federation, but the interesting part is that these intergovernmental relations are the results of informal arrangements, which as the name suggest has no foundation in any statute or in Constitution. One of the most important and popular kinds of such informal arrangement is “first ministers” conferences.[35]Federal-Provincial relations are settled in these kinds of conferences.[36]           And these cooperation proves to be very successful in proper working of a federation. Absolute compartmentalization amounts to nothing but tension. Hence it is wrong to say that, cooperative federalism amounts to defederalization.            

The Constitution Act, 1867, ss. 91 and 92 lay downs the principles of “Distribution of power”,   between the federal Parliament and the provincial Legislature. Here section 91 chalks out the list of laws which is to be tried by federal parliament and section 92 gives the list of laws which is to be tried by provincial legislatures. Section 91 and 92 gives the classification of law and the matter of such law, which is pith and substance of the law, helps the matter to be judicially reviewed.[37] Here comes the role of judicial review. When there is a law, and when validity of law is under Judicial Review, then court has two step process to test it out. First step is to see the pith and substance of the challenged law and second is to see, classification of law, which is to see, if the challenged law has been the subject matter of other power or not.[38] So if there comes a law, which violates this principle of separation of power, court will automatically exterminate that law. So there comes no question of Federal government heading toward centralization of power by the mean of any statute or law, be it any health care laws etc.

After, extensive research from various works, it is clear that the essence of Federalism is the separation of power, that is province and centre are not encroaching upon each other, however there is the phenomena that is common in successful federation and that is cooperative federalism, Where one has the better understanding of region that is regional government and other one the centre has the resource. This paper walks the reader through the instance where the Canada had robust federal structure and then it went to the level where it followed cooperative federalism. Though there are very less Royal Commissions made for inquiring about healthcare, majority of these Royal Commissions has held the provincial hand over the central government on matters regarding Healthcare. As these commissions were not of the view that, there is any encroachment from central government over provincial regime and considering the fact that non coercive application of federal government’s power over provincial government proves that there was application of cooperative federalism. There is nothing like that, if there is any erosion of Canadian Federalism. Canadian Federalism was robust in past and now it is flexible.

While the Author has used Health Sector to justify his research of Canadian Federalism heading toward defederalization, it would have better that, further research would have committed on other various important sectors like Distribution of Powers consisting of Court’s power on Judicial Review on Federal Ground. As it keep check over the central aggression over the provincial autonomy. Canadian Federalism is heading toward a path which ensures the robust federalism, which is now coupled with cooperative Federalism.

[1] R.L. Watts, Comparing Federal Systems (2^nd ed., 1999)

[2] Livingston, Federalism and Constitutional Change (1956), 4; W.H. Riker, Federalisim: Origin, Operation, Significance (Little, Brown, Boston, 1964), 5. Riker argues that the degree of centralization in any federal state may be measured by the degree of centralization in the organization of the political parties.

[3] Wheare, Federal Government (4^th ed., 1963).

[4] Birch, Federalism, Finance and Social Legislation (1955), 306.

[5] M.J.C. Vile, The Structure of American Federalism (Oxford, 1961), 198-199.

[6] Smith, Federalism and the Constitution of Canada (2010)

[7] New State Ice Co. v. Liebmann  (1932) 285 U.S. 262

[8] J. Proudhon, The Principle of Federation (1863)

[9] Dicey, The Law of the Constitution (10^th ed., 1965)

[10] François Rocher, Self-determination and the Use of Referendums: the Case of Quebec, International Journal of Politics, Culture, and Society, Vol. 27, No. 1 (March, 2014), pp. 25-45

[11] William D. Coleman, The Political Economy of Policy Coordination: International Adjustment since 1945Michael C. Webb Ithaca, N.Y.: Cornell University Press, 1995, pp. xvi, 269, 29 Canadian Journal of Political Science 172–174 (1996).

[12] Herman Bakvis & Douglas Brown, Policy Coordination in Federal Systems: Comparing Intergovernmental Processes and Outcomes in Canada and the United States, 40 Publius 484–507 (2010).

[13] Fenna, Alan. 2007. The malaise of federalism: Comparative reflections on commonwealth- state relations. Australian Journal of Public administration 66: 298- 306

[14] The British North America Act, 1867, Sec. 91 and 92.

[15] Jenson, Jane. 1994. Commissioning ideas: representation and royal commissions, in. In How Ottawa Spends 1994- 1995: Making Change, ed. Susan D. Phillips, 39-69. Ottawa: Carleton University Press.

[16] Bradford, Neil. 1999. Writing public philosophy: Canada’s royal commissions on everything. Journal of Canadian Studies 34 (4): 136- 167

[17] Graefe, Peter, and Andrew Bourns. 2009. The gradual defederalization of Canadian health policy. Publius: The Journal of Federalism 39 (1): 187-209

[18] Anita L. Kozyrskyj, HISTORY OF PUBLIC HEALTH IN CANADA, 87 Canadian Journal of Public Health10–12 (1996), https://www.jstor.org/stable/pdf/41991588.pdf?refreqid=search:941c6d7657e0871bde07a6452d3bbc3f (accessed Sep 23, 2018).

[19]  Meilicke CA, Storch JL., Perspectives on Canadian Health and Social Services Policy: History and Emerging Trends, Ann Arbor: Health Administration Press, 1980; 142-59

[20] Bothwell RS. The Health of the Common People, in: English J, Stubbs JO, eds., Mackenzie King: Widening the Debate. Toronto: The MacMillan Company of Canada, 1977; 192, 195.

[21] Royal Commission on Health Services 1964, Report, Ottawa: Queen’s Printer. P. 872

[22] Ibid at p.87

[23] Leeson, Howard. 2004. Constitutional jurisdiction over health care. In The governance of health care in Canada: Romanow Papers, Volume 3, ed. Tom McIntosh, Pierre Gerlier Forest, and Gregory P. Marchildon, 50-82. Toronto: University of Toronto Press.

[24] Maioni, Antonia. 2002. Health care in the new millennium. In Canadian federalism: performance, effectiveness and legitimacy, ed. Herman Bakvis and Grace Skogstad, 87-104. London: Oxford University Press

[25] Romanow, Roy. 2002. Building on values: The future of health care in Canada. Htti://www.cbc.ca/healthcare/final_report.pdf (accessed September 9, 2018)

[26] Maioni, Antonia. 2002. Health care in the new millennium. In Canadian federalism: performance, effectiveness and legitimacy, ed. Herman Bakvis and Grace Skogstad, 87-104. London: Oxford University Press.

[27] Abel-Smith, Brian (1987).  “Social welfare; Social Security; Benefits in kind; National health schemes”. The new Encyclopedia Britannica (15^th ed.). Chicago: Encyclopaedia Britannica. ISBN 978-0-85229-443-7.  (accessed September 10, 2018)

[28] Jennissen, Therese. 1992. Health issues in rural Canada. http://dsp-psd.tpsgc.gc.ca/Collection-R/LoPBdP/BP/bp325-e.htm (accessed September7, 2018).

[29] Chenier, Nancy Miller. 2000. The federal role in rural health. http://dsp-psd.tpsgc.gc.ca/Collection-R/LoPBdP/BP/prb0020-e.htm (accessed September 12, 2018)

[30] A.  Lajoie and P.A. Molinari, “Partage constitutionnel des cometences en mmatiere de santé au Canada” (1978) 56 Can. Bar Rev. 579; J. Downie, T. Caulfield and C.M. Flood (eds.), Canadian Health Law and Policy (Buttersworths, Toronto, 2^nd ed., 2002), esp. ch. 1 by C.M. Flood

[31] Schneider v. The Queen [1982] 2 S.C.R. 112, 142; RJR-MacDonald v. Can. [1995] 3 S.C.R. 199, para. 32

[32] Chapter 17, Peace, Order, and Good Government,  

[33] Toronto Electric Cmmrs. V. Snider [1925] Q.C. 396, 412

[34] Can v. PHS Community Services Society [2011] 3 S.C.R. 134

[35] Dwivedi (ed.), Public Policy and Administrative Studies (U. of Guleph, 1988), vol. 5, 38

[36] Peter W. Hogg, Constitutional law of Canada (2000).          

[37] D. W. Mundell, “Tests for Validity of Legislation under the B.N.A. Act” (1954) 32 Can. Bar Rev. 813; B.Laskin, “Test for validity of legislation: What’s the ‘Matter’?”

[38] Laskin, Canadian Constitutional Law (5^th ed., 1986 by Finkelstein), 242.