In law there is the concept of ultra vires: “beyond the powers.” It refers to something beyond the power of a person, entity or government. An organization cannot do something beyond what is set out in its by-laws, or the laws that regulate organizations like it; and a government cannot do something beyond its legal authority.
A town council, for example, cannot raise an army or issue its own currency, because (at least in Canada) its powers are strictly delimited by provincial municipal legislation, legislation that says a municipality may only enact by-laws in these specific areas.
Canada’s constitution assigns different powers and responsibilities to the federal and provincial governments. It’s all set out in Part VI of the Constitution Act, 1867. But that doesn’t stop Canadian politicians from trying to legislate in areas that aren’t theirs.
Provincial governments can’t help themselves from mucking around in the federal arena: they open trade offices in other countries or demand control over culture and immigration. And as we’ve seen in the current election, federal politicians can’t help but campaign on matters that fall under provincial jurisdiction.
Take, for example, the promise for national prescription drug coverage (from the NDP and Liberals) or dental care (from the NDP). Or day care. Health care and social services are absolutely a provincial matter: the provinces regulate, run—and pay for—these services. The only thing the Canada Health Act does is set out the conditions that a province’s health care plan must meet in order to receive federal cash transfers: basically, the federal purse is being used to establish some baseline standards for health care across Canada. Running health services? That’s on the provinces.
Any federal intervention into dental care, or prescription drug coverage, would inevitably follow a similar pattern: the feds establish standards and pay the provincial governments to meet said standards. So it’s not impossible for the feds to do something. But it’s worth mentioning that transfers to the provinces—how much, and how much they go up each year—are a significant point of friction between the federal and provincial governments. Whatever rhetorical points federal politicians make about supporting or saving health care in Canada, it’s the provincial governments that are on the hook for providing it—and they’re heavily reliant on federal funds to do so.
All of which has led to a certain amount of confusion as to who is responsible for what. A decade ago I worked in ministerial correspondence at Health Canada. We processed tens of thousands of letters a year, and because of my position I saw almost all of them. And a substantial percentage of them—something between a quarter and a third of them—were about health care matters at the provincial level: a complaint about a hospital, or a doctor, or some other aspect of their care. All we could do is send back a form letter advising them, in formal government-speak, to go yell at the provincial minister of health, or the hospital’s patient advocate, or the provincial college of physicians and surgeons.
It occurred to me that the letter writers were not just confused about who was responsible for what, but that they somehow thought that the federal minister was somehow the boss of the provincial minister. It was the equivalent of complaining to the CEO when you get shitty customer service: I’m going right to the top about this!
Health Canada does a lot of things—consumer products safety, regulating drugs and pesticides, health care on reserves—but it’s not the court of appeal for the provincial health care system. But it’s easy to get confused when federal politicians thunder on about saving health care.
Another interesting quirk of working in the correspondence mines at Health Canada. Fully 97 percent of the incoming mail was in English—from which I deduced that for whatever reason Quebeckers weren’t confused about who ran their health care, and knew exactly which health minister to complain to.
Speaking of my home province. It’s been a bit risible to see federal politicians talk about prescription drug coverage or affordable day care, because here in Quebec we already have these things. Those higher taxes we pay? They pay for these things. When we see politicians promise things we already have, it’s clear that that messaging isn’t for us. But the fact that Quebec already provides what these guys are campaigning on should remind us of one key point:
There is nothing stopping your provincial government from providing affordable child care, dental care, or prescription drug coverage. If you think these things are worth having, they’re worth campaigning for, organizing for, at the provincial level.
The fact that provincial governments are by and large not providing these things is, I suspect, a sign of the dysfunction between the two levels of government: have-not provinces may not have the resources; wealthier provinces may balk at raising taxes to pay for it all the same; and all provinces would rather the feds cut them a check to do it.
It’s the usual problem: the federal government collects rather a lot of tax revenue, and the provinces are on the hook for increasingly expensive services. When I think about it, it’s not too surprising that provincial politicians would rather indulge in high-profile but less-expensive activities that nonetheless fall under federal jurisdiction, and that federal politicians would rather splash money collected via federal taxation on provincial matters.
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