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Wednesday, November 04, 2009

Constitutional Flu & Section 92

Robert Ede
Constitutional Flu & Section 92
Robert Ede
Wed, Nov 4, 2009 at 6:54 PM
To: letters@thegazette.canwest.com, imacdonald@...org
i
Dear Editor & Mr MacDonald,


Mr L. Ian Macdonald's recent article Sept 04/09, Your Constitution and the flu, includes the paragraphs "there's a fundamental issue of the constitutional division of powers.

It's both simple and subtle. Under Section 91 of the Constitution Act, Ottawa is responsible for "peace, order and good government." It is the central statement of the Constitution, and the ultimate trump of the federal government in running the country.

This means that Ottawa is ultimately responsible for the safety and well-being of Canadian citizens (ed.note - this s/read residents), including those standing in line waiting for flu shots. Except that the lines are run by the provinces.

Ottawa is also responsible for national health and safety standards, approvals for experimental drugs, and the purchase of drugs such as the H1N1 vaccine.

But the provinces, under Section 92 of the Constitution, are responsible for running the health-care systems across the country, including the distribution of vaccine and the determination of priorities.

In other words, Ottawa is responsible for assuring the supply, while the provinces are responsible for meeting the demand."

This is a widely-held misconception, perpetuated by the Provinces & by well-meaning reporters and pundits since the introduction in the late 1950's of National Hospitalization which introduced government help to cover catastrophic healthcare in the late1950's - this step was accepted by Canadians because liked the idea they would never be faced with lose-your-house/life-savings hospital bills.

In fact, the flow of funds FROM the pool of taxpayers-as-contributors, TO the taxpayers-as-beneficiaries THROUGH the Publicly-administered, Single-payer, (Public-Option if you will) Sacred-Trust, Universal Healthcare system was unanticipated in 1867.

Notwithstanding anything in the many-times amended Canada Health Act and related Acts, section 92 makes no reference to funding of such a sweeping, huge-cost, social(ist) program.

As a pertinent note, in 1867, most hospitals (plus schools and Universities) were run/influenced/supported by religious groups - an overwhelming majority in Canada East/Quebec were Roman Catholic in character and in Canada West/Ontario the Protestant-run institutions were in majority. Also recall that in 1867 Canada was a much smaller place, much more rural socio-economically and still very much a colony in nature and in governance.

The subsection of the BNA/Constitution Act (1867) referenced by the author states: Section 92. 7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary (ed.note -means Charitable) Institutions in and for the Province, other than Marine Hospitals.

These "institutions" were included in Section 92 because, as religion-linked, quite differently/distinctly organized entities in each province of the new Confederation, they were deemed to be (along with all the other Class(es) of Matters in the Exclusive Powers of Provincial Legislatures) 92.16. ... Matters of a merely local or private Nature in the Province."

In my view, the funding of Canadian Healthcare delivered in Hospitals, Asylums, Charities, and Eleemosynary Institutions absolutely IS Provincial - but every other kind of healthcare is not necessarily a Provincial Responsibility/Power/Duty/Expense, irrespective of the commonly-held view. (Remember when Dentists pulled wisdom teeth in the Hospital (not their office) because it was free to the consumer that way?)

I'm not debating the Canada Health Act (nor its de-funding, withdrawal of funding etc etc nor the systematic provincial de-listing of coverage for some formerly-covered services, procedures and drugs) and I'm not debating the debacle involving the delivery of H1N1 vaccine, I'm simply asking Canadians to know their foundational documents and understand the implications (to individual taxpaying-resident-citizens) of the Stewards-of-the-Crown NOT following the as-written provisions of the supreme laws of the land.

Perhaps an online Plain Language Version would help.


Robert Ede,

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