The federal government is not a parental jurisdiction


 As the pandemic continues to grow at an alarming rate across the country, we are watching several premiers simply abdicate their constitutional obligations to do something meaningful about it.  Most of them – Doug Ford, Jason Kenney, François Legault, Brian Pallister, and even John Horgan, have been more concerned about ensuring that restaurants and bars remain open and operating rather than taking the necessary steps to prevent the spread of the infection, apparently oblivious to the fact that if people aren’t healthy, the economy suffers whether these businesses stay open or not.  And as the cases – and deaths – continue to climb, are the premiers being held to account?  Rest assured they are not, but everyone is turning to prime minister Justin Trudeau, whose jurisdiction this problem is not.

The focus on the federal government is as deeply curious as it is frustrating, because anyone who has spent any amount of time in this country should know by now that we have a strongly decentralized federation, and that healthcare delivery is the exclusive jurisdiction of the provinces (barring provision to First Nations and military personnel, much of which is still delivered by provinces by merely reimbursed by the federal government).  Provincial premiers constantly berate attempts by the federal government to “meddle” in healthcare, even though “meddling” tends to mean ensuring that provinces don’t do things like charge for private delivery of services, or trying to fund greater access to certain priority areas like mental health or home care.

I can immediately hear the protests of “But surely they play a role!” and the invocation of the Canada Health Act like it’s some kind of a talisman.  Few enough people – and reporters especially – seem to grasp that the federal role around healthcare is funding for the primary purpose of ensuring that there are equitable levels of care available across the country.  This is why enforcement to ensure that provinces aren’t charging things like user fees or setting up alternative private for-profit delivery matters – it keeps it equitable and accessible for all users.  There are still plenty of gaps, and places where provinces are not fulfilling their obligations, but for the most part, this is the overriding goal of federal involvement.  In addition, the Canada Health Act was the conclusion of federal-provincial negotiations, and not a starting point or something imposed top-down on the provinces, which is why demands to start unilaterally including things into the Act are non-starters (and why the federal government can’t just draft a similar bill for pharmacare without provincial buy-in, like the NDP keep proposing).

What has become deeply frustrating over the course of the past nine or so months as the pandemic has essentially taken over the functioning of the country is that there is his erroneous belief, constantly perpetuated and reinforced by reporters, that somehow because of the Canada Health Act, that the federal government is some sort of parental jurisdictional figure, and that it can sweep in and start acting in provinces where their provincial governments are not doing enough to deal with the pandemic.  This is not the case.  Under our constitution, there is a division of powers – powers are not delegated to the province by the federal government and cannot be taken back.  Instead, powers are divided between the provincial and federal governments based on spheres of responsibility, and it takes a constitutional amendment to change which order of government that particular area of jurisdiction falls under.

The federal government is not some parental figure, and it is not going to take over the responsibility of healthcare delivery in this country.  Yes, there is the theoretical ability to do so under the Emergencies Act, but that cannot be invoked without the consent of the provinces, and that has not happened, and you can be assured that it will not happen.  And yet, this is now the expectation that many members of the media keep circling around – that eventually, Trudeau is going to unilaterally invoke the Act and take charge, and more to the point, these same reporters are trying to set up the expectation that if Trudeau doesn’t do this, that he will be accountable for the infections and deaths across the country as some kind of refusal to act.  This is not only wrong, but it’s completely wrong-headed.

Because there is a constitutional division of powers and not a delegation, provinces have tremendous amounts of power in their own areas of jurisdiction, and most are simply choosing not to act – not only with regard to stricter public health protocols or lockdowns, but more fundamentally when it comes to things like supporting those small businesses, or commercial or residential rent supports, all of which have been important issues that they have refused to address (to the point where the federal government has been forced to twice now kludge together some kind of rent assistance program when they have a very limited number of levers available to them).  The federal government has been going above and beyond to support provinces, and turning over vast sums of money to them to keep the country going in the face of this pandemic – and not complaining about it either – but because they simply use the language of “working together with provinces and territories” rather than “you should talk to your premier,” it keeps sending the wrong impression about just how much clout they actually have.

It’s time to start really holding the premiers to account for their ballsing up the response to this pandemic because they are too afraid of their own bottom lines and balanced budget promises.  The federal government isn’t going to save you – it’s not their job.  It’s your premier’s job to do the heavy lifting on testing, tracing, isolation, public health measures, supporting businesses affected by those measures, and yes, rent supports for people affected by this pandemic, and the longer you keep looking to Trudeau to do that work, the more these premiers will keep skating by, and nothing will get fixed.  Put the pressure where the responsibility lies.

Photo Credit: CBC News

More from Dale Smith. @journo_dale

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