Jan. 23, 2022

Part 3: The Canadian constitution, lawless governance

Because our political parties are fixated on acquiring the power of governance, they routinely ignore their constitutional responsibilities when they form a government.

If you read through the subjects in Sections 91 to 96, the only real power therein is the power to tax. The rest are responsibilities.

In part 2, I pointed out that the federal government is responsible for the military and defence of Canada’s sovereignty, land and waters. There is no justification for our being the NATO paupers, lacking well behind our fellow NATO members in defence spending. We do not take defence spending seriously, although it is a matter of national pride and patriotism.

When the constitution is read as subjects of responsibility, it takes on real meaning. For example, the federal government is responsible for Indians, and Lands reserved for the Indians.

That includes all aspects of relations with indigenous people, including health care, housing, and education. Over the years, governments have contracted with provinces to provide health care and education to Indigenous people. The federal government cannot be allowed to delegate its responsibilities.

At one time, Indigenous affairs had representative agents in or for every Indigenous reserve. Now they operate out of an Ottawa enclave with no boots on the ground. Indigenous affairs bureaucrats should be required to spend at least 24 months on reserves, living with the people they ignore. Reconciliation would quickly follow.

The federal government is also responsible for Quarantine and the Establishment and Maintenance of Marine Hospitals. As late as the early 1980s, we had military hospitals scattered across Canada. They serviced armed forces personnel and their families, veterans, RCMP members, Indigenous people, and inmates in federal prisons.

Those hospitals were gifted to the provinces in violation of the constitution. The federal government claimed it was saving money but built a bureaucracy to track, bill and pay for services to federal wards. Consider how having those military hospitals with trained personnel in place would have helped us deal with the current pandemic.

Quarantine, isolating people with an infectious disease, is a federal responsibility. Regional efforts to isolate us are unconstitutional. Emergency legislation is intended to apply for a limited duration, usually about 30 days. Extending emergency legislation for a month due to unforeseen is reasonable. Extensions for two years are ridiculous.

The federal government failed to screen incoming travellers to Canada, test them for COVID and quarantine them if they were positive. Two years later, they admit they cannot control COVID spread. Perhaps that is because it failed in its fiduciary duty to Canada.

Within the subject list for the provinces is: Local Works and Undertakings other than such as are of the following Classes:
(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:
(b) Lines of Steam Ships between the Province and any British or Foreign Country:
(c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

Interprovincial highways, roads, canals, ferries, railways, telegraph and cable lines, pipelines, and any works extending to foreign nations are a federal responsibility. The federal government has no constitutional authority to privatize the Port of Churchill. It is required to maintain the port as an export facility and bring the rail line to Churchill up to interprovincial standards as exports come from many provinces.

The federal government maintains that improvements to interprovincial highways benefit the provinces, and the provinces should carry some of the costs. That is an abdication of responsibility and a violation of the above section.

Rubbing salt in the wounds, the federal government is spending on bridges in Montreal, Toronto highways, and Ottawa subways, violating the constitution. These are local works in the realm of the provinces and outside the federal government’s jurisdiction. Buying votes cannot trump the constitution.

Outside of its responsibilities for quarantine, Indigenous affairs, and military hospitals, the federal government has no jurisdiction over health care. Nevertheless, it passed an unconstitutional Canada Heath Act using its financial support to provinces as a lever.

The pillars of the Canada Health Act: (a) public administration; (b) comprehensiveness; (c) universality; (d) portability; and (e) accessibility are thoroughly established in provincial systems. Accessibility has become a joke as underfunded systems, and efforts to manage (curtail) costs have resulted in long waiting lists for people in need of health care.

The Canada Health Act violates provincial jurisdiction and the constitutional principle of governance at the level closest to the people.

It is time for the federal government to repeal the Canada Health Act, transfer tax points to the provinces in place of transfers and allow provinces to innovate in renovating their fragile health care systems highlighted by the pandemic.

Our systems need a significant overhaul, and the federal government is not helpful. If it can’t lead, get out of the road.

I am disgusted with opposition parties who never raise these issues rather than awaiting their chance at governance. They ought to be engaged in building a better Canada and fail us.