Healthcare in Canada: Who is responsible?


Political Map of Canada

As I previously noted, my application for judicial review before the Federal Court of Canada argues that the Federal Government does not have the legal right to make excessive demand decisions, because it involved an exclusively provincial domain (namely, health care.)

While researching this issue I found the following description of the history of health care in Canada on Wikipedia:

The federal government felt that the health of the population fell under the Peace, Order, and Good Government part of its responsibilities. This led to several decades of debate over jurisdiction that were not resolved until the 1930s. Eventually the Judicial Committee of the Privy Council JCPC decided that the administration and delivery of health care was a provincial concern, but that the federal government also had the responsibility of protecting the health and well-being of the population.

What I find interesting is that when I look back at one of the seminal cases (Deol v Canada) the court specifically said that CIC had no obligation to advise the applicant of a provincial bonding program.  If the Federal government is representing the interests of the province in making immigration oriented health care decisions who is responsible for advising the applicant of such a program? In other words, if CIC is the agent of the province in this case, how can they abrogate a reasonable obligation to advise the applicant of their option under the very laws and regulations they are purportedly representing?

Here is the text from the judicial review application, as filed:

Issue four: s. 38(1)(c) violates the constitutional division of powers

1. Section 38(1)(c) of the Act authorizes the federal Minister of Citizenship and Immigration to make determinations involving costs of administering provincial health plans. Therefore, this section is invalid because it intrudes upon provincial health jurisdiction and jurisdiction in local matters under ss. 92(7), (13) and (16) of the Constitution Act. 1867.

2 . S. 91(25) of the Canadian Constitution Act authorizes the federal government to regulate naturalization and aliens.

Constitution Act, 1867, s. 91(25)

3. S. 92(7), (13) and (16) of the Constitution Act. 1867 provide provinces with the authority to regulate health care and jurisdiction over local matters.

Constitution Act, 1867, s. 92(7), (13) and (16)

4. S. 38(1)(c) of the Act, in pith and substance, involves the federal government in
regulating the cost of provincial health care. As such, it is ultra vires the federal
government.

5. Regardless of whether the Immigration and Refugee Protection Act as a whole is valid immigration legislation, it may contain provisions which are neither valid immigration provisions, nor ancillary to immigration provisions. An invalid legislative provision is not rendered valid because it is included in a legislative scheme that, viewed globally, is valid. The proper approach is to rigorously scrutinize what each provision says and does.

6. S. 38(1)(c) of the Act, in pith and substance, involves the federal government in regulating the cost of provincial health care. As such, it is ultra vires the federal government.

7. Regardless of whether the Immigration and Refugee Protection Act as a whole is valid immigration legislation, it may contain provisions which are neither valid immigration  provisions, nor ancillary to immigration provisions. An invalid legislative provision is not rendered valid because it is included in a legislative scheme that, viewed globally, is valid. The proper approach is to rigorously scrutinize what each provision says and does.

Quebec (Procureur General) v. Canada (Procuruer General) 2010 SCC 61 at para. 78,87

8. The purpose or ” matter” of s. 38(1)(c) has been acknowledged to be “to reduce the impact on Canada’s publicly funded health and social services from excessive demand”. Unlike s. 38(1)(a) and (b), which are concerned with protecting the health of Canadians from newcomers who could pose a threat, s. 38(1)(c) in pith and substance is designed to manage and contain the cost of provincial health programs. This is not a valid immigration law purpose. This is a provincial concern.

Regulatory Impact Analysis Statement, Canada Gazette Part I, Part IV, p. 4497

9. The Supreme Court has determined that s. 92 provides provinces with jurisdiction over the costs of health care. The Court stated:

“In addition, there is no dispute that the heads of s. 92 invoked by the appellant confer on the provinces jurisdiction over health care in the province generally, including matters of cost and efficiency, the nature of
the health care delivery systems, and the privatization of the provision of medical services.”  [Emphasis added]

R. v. Morgantaler [1993] 3 S.C.R. 463 78,87

10. Recently, the Supreme Court described the provincial health power as “broad and
extensive”.

PHS Community Services Society v. Canada (Attorney General) 2011 SCC 44 at
para. 68

11. Deciding which newcomers are too costly for provincial health programs IS a provincial concern because it is a local matter requiring expertise regarding local conditions. For example, such an assessment requires detailed knowledge regarding how the health care system in a specific province is administered. Provincial authorities rather than federal bureaucrats are best placed to make such determinations.

12. Deciding which newcomers are too costly for provinces is also a local concern because it requires a balancing of the cost of the particular newcomer’s contributions with their expected costs.

13. In the Applicant’s case, for example, it is more appropriate for British Columbia to determine whether the Applicant is too great a cost for the province, taking into consideration that he resides there contributing to the local economy, consuming local goods and services. and paying taxes to British Columbia. A system which allows a federal medical officer in Ottawa to make such determinations on behalf of the province intrudes into provincial jurisdiction over local matters.

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