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Robert Silver

Jedi mind-tricking the Canada Health Act away Add to ...

John Ivison and Jeffrey Simpson jump into the Canada Health Act fray with their respective columns today.

Let me tackle Ivison first and his column headlined "When is a User Fee Not a User Fee." He addresses Parliament finally discussing the issue this week:

"In Question Period on Wednesday, the issue was raised by NDP leader Jack Layton, who asked the Prime Minister whether his government is committed to enforcing the CHA "or is preparing to amend it?"

Stephen Harper's answer was inscrutable enough to suggest a number of interpretations are possible.

"The NDP ... should be sure that violations have actually occurred. The reality is very clear. The Canada Health Act is the law of the land. The government has indicated that it expects provinces to follow the law of the land," he said.

Since the CHA is pretty clear that "for a province to qualify for a full cash contribution [from the federal government] user charges must not be permitted," the uninitiated might think the Prime Minister was threatening to crack the whip.

But I don't think that's what Mr. Harper was suggesting at all. Nor does Brian Lee Crowley, the economist and author of Fearful Symmetry: The Fall and Rise of Canada's Founding Values."

Pause.

The law is clear, the law must be followed but both Ivison and Brian Lee Crowley (as I have written here previously, Crowley's Fearful Symmetry was the Canadian political book of the year last year) don't think Harper is actually threatening anything here.

Big assertion, time for some analysis boys:

"For one thing, contravention of the CHA is in the eye of the beholder. The government has a high degree of discretion when it comes to contravention -- and even more latitude when it comes to penalties."

This is of course true. There are three important points about the CHA and user fees:

1. They are explicitly prohibited (as per my post earlier this week);

2. The explicit penalty under the CHA for user fees is a loss of federal transfers; and

3. The Federal Health Minister is judge, jury and executioner for enforcing this section.

In other words if the Federal Minister decides not to enforce the Act, nothing is going to happen. Life will go on. That doesn't mean Quebec isn't in violation of the Act, just that the Feds have decided to turn a blind eye to its transgression. And other provinces can also do whatever they want in healthcare - CHA be damned. In other words, the result of Harper deciding to ignore Quebec's violation is the CHA becomes a meaningless piece of legislation - in complete contradiction of what Harper actually said in the House this week.

Back to Crowley:

"Mr. Crowley said Quebec's plan may not even constitute a user fee. "It depends on what you think a user fee is -- it's a very important question .... If you have an addition at the end of the year to your tax bill, then no one is being prevented from access to health care."

Right. And if I go to a restaurant, put my steak on my credit card and don't pay the bill for another month then it's like I got my steak for free - I mean, they let me walk out of the restaurant without giving them a penny! The proposed user fee in Quebec is being collected through the income tax system for administrative efficiency reasons. As we understand it to date, the "fee" at the end of each year will be based on the number of "uses" you made of the health care system. The clause under the CHA prohibiting user fees makes no reference to accessability, it prohibits user fees per se. I'm not sure how when you have to pay it is relevant to whether it qualifies as a "user fee".

Ivison goes on to propose the same jurisdictional swaperoo that Andrew Coyne laid out in his column this week for the federal government to get out of funding healthcare, transfer tax points to the provinces in exchange for economic union (minus Andrew's senate reform two-step).

Jeffrey Simpson makes an even more blunt argument in his column:

"It doesn't much matter what federal Liberals, or any of the federal parties, say or think. It is the provinces, not Ottawa, that deliver health care and provide most of the money for it. Frankly, what Mr. Ignatieff or other federal politicians think or say doesn't count for much."

I think there are two very different, though related questions that are being confused in both columns:

1. Does the Quebec proposal violate the Canada Health Act that is currently the law of the land?;

2. Should the Canada Health Act be amended on a going forward basis?

The answer to the first question is clearly yes - the Quebec proposal violates the current Act.

In terms of where we go from here, that is a much bigger question. Should the federal government have anything to do with health care in the futrure? I have my thoughts, others have theirs. This debate is not off to a good start though when we can't even agree what the law is today as it gets underway.

If we are, as a country, going to ignore the CHA - if we have decided that it is outdated and outmoded or impractical to enforce it - then let's call it what it is and change the law.

But let's avoid the mental gymnastics and jedi mind tricks that are currently being played to try to claim that a policy proposal that is in clear violation of the law is something else entirely.

 

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