Time to end federal government overreach

Opinion

Hey there, time traveller!
This article was published 15/07/2024 (444 days ago), so information in it may no longer be current.

This week, Canada’s premiers will gather for their annual summer conference in Canada’s ocean playground, Nova Scotia.

Manitoba Premier Wab Kinew will show up sporting the highest popularity rating for any premier in the country. Alberta Premier Danielle Smith will arrive with the highest populism ratings in the country.

But what if these unlikeliest of comrades decided to apply their popularity and populist credentials to convince fellow premiers to bridge political divisions over Canada’s division of powers and fix the most contentious issue in the federation?

Smith’s attempt to do so — via the populist Alberta Sovereignty Within a United Canada Act — has been mostly a damp squib. It is more symbolism than sovereignty. Eighteen months on, it has been invoked just once over proposed federal clean-electricity regulations, and promptly ignored by Ottawa.

But her recent opposition to the new federally mandated Canadian Dental Plan (CDP) is more convincing, as it is not prompted by theatrical calls for more provincial sovereignty but based on practical federalism principles. In this, Alberta’s argument has, well, more teeth.

In a June 25 letter to Prime Minister Justin Trudeau, Smith indicated Alberta would “opt out of the federal plan” by 2026. She cited as reasons for the move duplication of efforts, eligibility differences and, briefly, provincial jurisdiction over health care. She then asked for the same “unconditional” federal funding to expand coverage of Alberta’s own provincial dental plan.

Not once in her letter did Smith mention her performative Sovereignty Act. She needn’t.

Alberta’s position is a well-grounded one in traditional Canadian federalism that all premiers should echo at their Halifax meeting.

Ottawa is engaged in classic federal unilateralism. It is using its spending power — the transfer of money outside its jurisdiction — to bypass provincial responsibility for health care and establish its own national dental program.

It can do so. The spending power is not actually mentioned in the Constitution of Canada. Constitutionally speaking, it is neither fish nor fowl. For well more than half a century, Ottawa has used this ambiguity to influence the establishment or orientation of provincial programming in areas in which the federal government has no set constitutional authority.

For political reasons, provinces either acquiesced or accommodated, taking the funds and adjusting their own programs in response. Money talks, and voters listen.

But it is one thing to adjust a provincial program to accommodate federal goals and quite another to align with a singularly new, standalone federal program that duplicates, conflicts and threatens to supplant existing provincial programs.

Every province has a dental program that supports low-income residents to varying degrees. The CDP goes beyond all of these by expanding eligibility, providing benefits based on higher household incomes. It is managed directly by Health Canada at an estimated cost of more than $4 billion per year.

In 2011, the Supreme Court ruled on a judicial reference on financial securities legislation, stating this: “The Canadian federation rests on the organizing principle that the orders of government are co-ordinate and not subordinate one to the other.”

The federal government’s dental plan is not intergovernmental co-ordination. This is intergovernmental usurpation.

With just a year to go before the next federal election, no one would be surprised if premiers fell for the short-term gambit of demanding more federal money from an increasingly desperate Liberal government eager to rent any kind of voter love they can get. Premiers should resist this temptation and focus instead on fixing the way the federation works long term to influence a new Conservative government that’s clearly on the horizon.

That means “watering their whine” on demanding more money transfers and instead proposing a new collaborative governance framework for transferring money better. This would cover the use of the federal spending power in areas of exclusive provincial/territorial jurisdiction.

Guiding principles under this new framework would require that any new initiative under the federal spending power: be based on acknowledged national objectives; avoid overlap and duplication with provincial/territorial programs; respect provincial/territorial priorities; allow for opting-out with financial compensation; and ensure equality of treatment of the provinces and territories, while recognizing their different needs and circumstances.

The federal government could be required to stipulate to this effect via a motion in Parliament. In return, provinces and territories would agree that federal government spending power should not be unconditionally or unreasonably fettered in the pursuit of a stronger economic and social union.

The benefits of this to smoother federalism are obvious. It would reduce the current endemic friction in how Canada works. It would induce intergovernmental co-operation for the good of citizens, not politicians. It would require the federal government to treat provinces and territories as co-equals in certain aspects of running the country.

And it would create a stronger institutional safeguard against populist governing tendencies from both the right and the left.

Twenty-one years ago, the Council of the Federation was founded with this purpose: “to play a leadership role in revitalizing the Canadian federation and building a more constructive and co-operative federal system.”

In the wake of almost 10 years of increasing Ottawa interventionism, and the prospect of a change in government, premiers should stop gnashing their teeth over federal unilateralism over dental care and get to the root of the issue. Stop complaining and start proposing.

David McLaughlin is a former deputy minister for intergovernmental affairs in both Manitoba and New Brunswick. He was Clerk of the Executive Council and cabinet secretary in Manitoba.