Checks, balances and one Canada
Cornell Van Ryk, a resident of the MD of Pincher Creek, has been posting his thoughts on the Oct. 19 referendum questions to social media. After readers asked us to bring the series to the paper, he agreed to walk Breeze readers through the ballot. He describes himself as a political junkie with no particular expertise, and what follows is his opinion. Readers are encouraged to research the questions themselves and draw their own conclusions.
Ballot Question 7
Do you support the Government of Alberta working with the governments of other willing provinces to amend the Canadian Constitution to abolish the unelected federal Senate?
Our political system requires checks and balances to prevent a democratic government from accumulating too much power and potentially becoming authoritarian. When we elect a majority government, the leader and cabinet have considerable power, making effective checks and balances extremely important.
Unfortunately, many of the checks on government power have lost their effectiveness over time. Majority governments face relatively few effective constraints.
The King’s representative has largely become a figurehead, routinely giving royal assent to legislation.
The Senate is appointed by the government of the day, makes relatively minor tweaks to legislation, and rarely challenges the government.
Individual MPs follow their party’s position rather than independently challenging the government.
Political appointment of judges can undermine the perception of judicial independence and, potentially, the effectiveness of the courts as a check on government power.
Even voters have become increasingly partisan, with many people identifying strongly with a political party and consistently voting along party lines, with no regard to competence or performance.
This is why the Senate matters. I support reforming the Senate, but abolishing it is the wrong solution. If we remove one of the few remaining institutional checks on government power, we simply give the government of the day even more power.
The Senate needs reform. I support an elected Senate with greater accountability and a stronger mandate to represent provinces and territories. But eliminating an important check on government authority because it is currently imperfect makes little sense.
Reform, yes. Abolish, no. I will be voting No to this question.
Ballot Question 8
Do you support the Government of Alberta working with the governments of other willing provinces to amend the Canadian Constitution to allow provinces to opt out of federal programs that intrude on provincial jurisdiction such as health care, education and social services, without a province losing any of the associated federal funding for use in its social programs?
I have looked at Question 8 primarily in the context of health care.
Canada’s health-care system is based on some important principles: universality, access based on medical need rather than ability to pay, and no patient charges for medically necessary insured services. The federal government provides health-care funding to the provinces while establishing national standards through the Canada Health Act. Importantly, the federal government can withhold or reduce health-care transfer payments when a province does not comply with the act’s requirements.
I believe Alberta has been increasingly pushing the limits of these principles. We are seeing proposals that could restrict access based on residency, greater reliance on private delivery, and a growing role for user-pay services. The concern is that people with the financial means could gain faster access to care than those who cannot afford to pay.
I do not support a two-tier health-care system.
Question 8 would allow Alberta to seek an arrangement where it could opt out of federal programs while retaining the associated federal funding. In my view, this could remove an important federal safeguard and make it easier for Alberta to continue moving toward a two-tier system.
I believe health care should be based on need, not wealth. We all contribute to a system designed to ensure that when we need medically necessary care, our ability to pay does not determine the care we receive.
I will vote No to Question 8.
Ballot Question 9
Do you support the Government of Alberta working with the governments of other willing provinces to amend the Canadian Constitution to better protect provincial rights from federal interference by giving a province’s laws dealing with provincial or shared areas of constitutional jurisdiction priority over federal laws when the province’s laws and federal laws conflict?
I’ve studied this issue somewhat. I’m not a lawyer, so this is my understanding of the constitutional issues — not legal advice.
Canada’s Constitution divides responsibility between the federal government and the provinces. In simple terms, Ottawa has jurisdiction over matters such as criminal law, defence, banking and interprovincial trade, while provinces have jurisdiction over areas such as health care, education, municipalities, resources and property and civil rights. There are also areas where both levels of government have legitimate constitutional authority.
Sometimes valid federal and provincial laws can overlap and genuinely conflict. This is where the principle of federal paramountcy applies. When both governments have the constitutional authority to legislate but their laws cannot operate together, the federal law currently takes priority. The courts decide whether there is actually a conflict.
Question 9 would change that principle. In provincial or shared areas of jurisdiction, it would give priority to the provincial law when it conflicts with a federal law.
I don’t think the paramountcy issue itself is my biggest concern. If federal and provincial laws genuinely conflict, the courts will still be there to decide the issue.
What concerns me more is the potential fragmentation of Canada’s legal and regulatory system. In these times where we desperately need to remove barriers to interprovincial trade, we should not be creating the mechanism to create more.
If this principle were adopted, different provinces could increasingly establish their own rules that take priority over federal legislation. Alberta, Saskatchewan, British Columbia., Quebec and other provinces could end up with substantially different rules in areas where national consistency has traditionally been important.
Canadians don’t live and businesses don’t operate in 10 separate countries. We trade with each other, move between provinces, work across provincial borders and rely on common national standards.
Provincial autonomy is important, and provinces must be able to exercise the constitutional powers they already have. But I am concerned that Question 9 could encourage a shift toward 10 increasingly independent regulatory systems rather than one Canada with appropriate provincial autonomy.
For me, that potential loss of national consistency is a much greater concern than whether federal or provincial paramountcy should apply when two laws conflict.
I will vote No to Question 9.
Question 10 will appear in next week’s issue.
