With the release of the Canadian Institute for Health Information's report on the effect of the first wave of the pandemic on long-term care facilities in Canada, and enumerating the grim statistics of just how many people died, we got a renewed number of calls for the federal government to do something about long-term care in this country.  As might be expected this has come with more than its usual share of handwaving away jurisdictional concerns that even though these facilities are within the domain of the provinces, that somehow the federal government can exert more of its benign influence and do the job of fixing these facilities where the provinces have repeatedly failed.  This narrative, however, got even more complicated by the Supreme Court of Canada's reference decision on the federal carbon price.

The NDP, in particular, have put on a big song and dance about promising to fix long-term care with the creation of a Care Guarantee, which is possibly the NDP at its hand-waviest.  (It's also with no small amount of irony that this is explicitly an election promise when they keep insisting that they don't want an election and have been pushing the Liberals to swear that they won't call one, as though it were up to them in a hung parliament).  To add to that, their health critic, Don Davies, read the CIHI report and essentially blamed the federal government for all of those long-term care deaths, declaring "This is inexcusable.  Appropriate government action could have saved the lives of many Canadian seniors."  And he's right to a point the federal government provided what support they could under their constitutional constraints, both when it comes to increasing health transfers and providing top-up pay for workers in these facilities, and providing support from both the Canadian Forces and the Canadian Red Cross for facilities that have been hardest hit facilities that we cannot deny were overwhelmingly private ones in Ontario.

But there are very definite limits to what more the federal government can do on its own, which is why the NDP's "Care Guarantee" plan is so hand-wavy.  To be clear, the current federal government has been engaged with negotiating with the provinces on creating national standards for long-term care that would accompany more federal dollars to tackle the problems inherent in the system.  Those calls, however, have largely been met with indifference because the premiers would much prefer money without any strings attached something that any federal government that wants to see specific outcomes should never agree to.  There is this conception that if the federal government puts money on the table with strings that the premiers will come running, lest they face the wrath of voters who would punish them for leaving money on the table.  Reality is different, however.

So let's walk through this "Care Guarantee."  After Jagmeet Singh offers up a falsehood about the federal government "underfunded health care and prioritized protecting the profits of big corporations and their wealthy shareholders" which is a bizarre accusation considering that the federal government doesn't regulate these facilities (nor have they been particularly friendly with Big Pharma, contrary to NDP claims) and a calculated lie about healthcare "cuts" crippling healthcare, never mind that health transfers have escalated continuously for decades now the immediate calls are fanciful.

They promise to achieve their goals by taking profit out of long-term care is going to be exceedingly difficult to do unilaterally by the federal government because there are a very limited number of federal policy tools they can use to achieve this at least unilaterally.  They could achieve it through negotiation with the provinces, but you can bet the provinces will want to extract a hefty price before they take on tremendous new spending commitments.  It's also something that you can't just wave Canada Health Act around like a magical talisman because it does not actually regulate provincial healthcare it stipulates conditions for federal health transfers, which is not the same thing.  And they can't just make a top-down declaration because that is direct interference with an area of provincial jurisdiction, which the Supreme Court took a very narrow view of in their carbon pricing reference decision, determined to ensure that they did not open the door to other federal attempts at intrusion in to provincial territory.

"Working collaboratively with patients, caregivers, and provincial and territorial governments to develop national care standards for long-term care and other continuing care that would include accountability mechanisms and data collection and that would be tied and backed by adequate and stable funding," is essentially what the federal government is already doing in trying to negotiate with provinces for the imposition of national standards, which the provinces are balking at.  Thinking they'll agree just because it's the NDP doing the negotiating is pretty fanciful.

More to the point, simply offering an additional $5 billion for long-term care and increased health transfers transfers which they have previously promised would be without strings attached is not without risks.  Provinces have a demonstrated history of spending health transfers on things that are not healthcare we saw this under the old health transfer escalator formula, where the six percent per year increases were not being met with six percent increases in healthcare spending those increases were much lower, indicating that provinces were spending money on other things.  We've also seen incidents where provinces turned increased federal transfers into tax cuts, which burned the federal government in the past.  Not to mention, they can and do leave federal money on the table if they don't want to deal with the attached strings, which is why these negotiations are difficult.

Long-term care is but one of many areas in provincial jurisdiction that plenty of federal parties want a piece of, along with child care and pharmacare, and possibly even dental care.  None of these can see any movement without negotiation, and promising otherwise is simply lying to would-be voters for the sake of scoring points.  It's a sign that parties that engage in it are deeply unserious.

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There is a move afoot in the Senate of all places to capitalize on the sense of outrage over the fact that Julie Payette will be collecting her pension and other annuities in spite of her early resignation at the conclusion of the workplace investigation that found her to be at the centre of a toxic work environment.  While there is justifiable outrage over this fact, and nobody wants to see Payette rewarded for her behaviour, it needs to be reiterated that going after her pension and benefits is a very poor idea, and will only cause a lot of trouble and litigation if Senator Claude Carignan's Senate public bill moves ahead.

There is a legal aphorism that poor facts make poor case law, and this is such a case where it very much applies.  Payette's situation has been unique in the annals of vice-regal history in this country, and trying to build laws around future instances of abuse are less constructive than doing proper vetting of candidates in the first place, particularly given that there will be much greater scrutiny on that aspect in the years to come.  But even this aside, there are deeper and more fundamental considerations at play that senators in particular should be sensitive to, given the long history of members of that chamber resigning before they could be removed in order to preserve their own pensions and benefits.

One of the big reasons that we enshrine the salaries and pensions of senior officials in legislation is to help preserve their independence if the government of the day threatens the salary and pension of the GG, senators, or Supreme Court judges, because they are standing in the way of something the government wants to do, it can't be done on a whim.  What Carignan is doing with this bill is an attack on institutional independence (which, as a senator, he should guard jealously rather than falling for this populist noise), especially because it creates a precedent for having a chilling effect on anyone else who has these kinds of legislated salaries and pension benefits.

The bill, should it become law, would be a lawsuit waiting to happen, because it goes against the both fundamental principle that legislation shouldn't target an individual, as well as established case law where other Governor-in-Council at-pleasure appointees who have been forced to leave their positions prior to their terms being up have been able to recover their expected salaries.  It also, based on the news reports (it has not yet been tabled), would peg the bill to any non-medical resignation before the end of a five-year mandate a mandate that doesn't actually exit in law.  Governors general have served varying terms, and while five years is a reasonable average length of their terms in office, it is not binding, and we have seen some go well past seven years, others have been under that five-year mark for various reasons.  Tying the five-years in this kind of legislation is poor form all around.  As well, there can be many legitimate, non-medical reasons for resignation, and this presupposes that there cannot be.

It should also be pointed out that this bill is also coming at a time where a Bloc MP has also tabled a bill that would reduce the GG's salary to $1 per year, and eliminate the pension and other annuities entirely, calling it a "symbolic salary for a symbolic position" something that not only betrays a complete lack of understanding of the constitutional role, but which also would limit the pool of those who could take on such a position to those who are already independently wealthy, which isn't necessarily the best outcome for society at large.  (The NDP have made previous suggestions about the Senate as well, saying that they should be volunteers, as though that would somehow make them even more in touch with Canadians).

The irony of this, however, is that pensions were created for governors general and their spouses in the late 1960s, not long after our sovereign stopped naming British aristocrats to the position, either the Queen or King of the UK, and later as the King or Queen of Canada.  It went along with Canadianizing the institution, and ensuring that the former holders of the office and most especially their widows could maintain some level of dignity in retirement, given the office that they held.  It was certainly noted that former GG Jules Léger and his wife could not afford to live off the vice-regal's salary and pension at the time, because they didn't have money of their own when Léger was appointed, so these particular changes to salaries and benefits can be seen as a way of allowing greater participation in the role.

While there are conversations that could be had about the other post-retirement benefits that were later additions, designed to allow former governors general support for any activities that are carrying on related to their time in office things such as correspondence, any charity patronages, and so on as well as support for an initiative or foundation that they are starting up as part of their legacy of their time in office, we should beware falling into our usual Canadian habits of hairshirt parsimony.  Yes, we can and should demand more transparency around those expenses, which seems to be happening now, but killing those programs for the sake of killing them is poor form.

While I get that Carignan is trying to capitalize on the populist anger toward Payette, I would humbly suggest that he let his bill die on the Order Paper, having fulfilled its symbolic purpose.  No good can come of this bill, and we need to get over our petty cheapness and consider Payette's pension as the price paid for her walking away from the post quietly and not causing a constitutional crisis or needing to involve the Queen in securing her dismissal.  There is no reasonable justification for letting this kind of legislation proceed, lest he want to open a can of worms and cost the government millions of dollars in litigation fees because he couldn't resist the urge to showboat.

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