Bill C-237

An Act to amend the Federal-Provincial Fiscal Arrangements Act and the Canada Health Act

This enactment amends the Federal-Provincial Fiscal Arrangements Act to provide that a province with a program whose objectives are comparable to those of a federal program in an area under the legislative authority of the province may withdraw from the federal program.
It also amends that Act and the Canada Health Act in order to exempt Quebec from the national criteria and conditions set out for the Canada Health Transfer.

Royal Recommendation for Bill C-237

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, I have two points of order that I would like to address.

I am rising on this particular point of order in response to the Speaker's statement on February 28, 2022, respecting the need for a royal recommendation for Bill C-237, an act to amend the Federal-Provincial Fiscal Arrangements Act and the Canada Health Act, sponsored by the member for Bécancour—Nicolet—Saurel.

Without commenting on the merits of Bill C-237, I note that the bill would exempt Quebec from the national criteria and conditions set out for the Canada health transfer. Section 24 of the Federal-Provincial Fiscal Arrangements Act sets out certain conditions and criteria for payments to provinces for health transfers:

a Canada Health Transfer in the amounts referred to in subsection 24.1(1) is to be provided to the provinces for the purposes of

(a) maintaining the national criteria and conditions in the Canada Health Act, including those respecting public administration, comprehensiveness, universality, portability and accessibility, and the provisions relating to extra-billing and user charges.

Bill C-237 also seeks to amend the Canada Health Act to make a corresponding change to exempt Quebec from abiding by the criteria and conditions for a cash contribution from the government to the provinces for the purposes of providing health care services. The purpose of the Canada Health Act is to set out in section 4 of the act:

The purpose of this Act is to establish criteria and conditions in respect of insured health services and extended health care services provided under provincial law that must be met before a full cash contribution may be made.

Section 5 of the Canada Health Act provides for cash contributions for each province in relation to the Canada health transfer.

Section 7 of the Canada Health Act sets out the criteria that a province must satisfy in order to receive a cash contribution. These criteria are more fully articulated in sections 8 to 12 in the act. Section 7 states:

In order that a province may qualify for a full cash contribution referred to in section 5 for a fiscal year, the health care insurance plan of the province must, throughout the fiscal year, satisfy the criteria described in sections 8 to 12 respecting the following matters:

(a) public administration;

(b) comprehensiveness;

(c) universality;

(d) portability; and

(e) accessibility.

As House of Commons Procedure and Practice, third edition, states at page 772:

Since an amendment may not infringe upon the financial initiative of the Crown, it is inadmissible if it imposes a charge on the public treasury, or if it extends the objects or purposes or relaxes the conditions and qualifications specified in the royal recommendation.

The provision of full cash contributions from the federal government to the provinces for health care services is tied to the ability of provinces to satisfy the conditions set out in section 7 of the Canada Health Act and section 24 of the Federal-Provincial Fiscal Arrangements Act. The royal recommendation includes the maximum charge on the consolidated revenue fund and is tied to the purposes, terms, conditions and qualifications for the authorization of expenditures.

Since Bill C-237 seeks to remove the terms, conditions and qualifications of the statutory spending authority, I submit that a new royal recommendation would need to be obtained for the purposes set out for health transfers to provinces envisaged in Bill C-237.

Speakers have consistently ruled that bills seeking to impose a new charge on the consolidated revenue fund, change the qualifications or alter the terms and conditions need to be accompanied by a royal recommendation.

On December 6, 2016, Speaker Regan noted:

On May 8, 2008, Speaker Milliken delivered a ruling on Bill C-490, an act to amend the Old Age Security Act (application for supplement, retroactive payments and other amendments). While the bill clearly provided for increases in supplements, it also made changes in the manner in which people applied for benefits and the extent to which qualified persons could claim benefits retroactively. In Speaker Milliken’s view, this:

...would alter the conditions and qualifications that were originally placed on public spending on old age security payments when those benefits were approved by Parliament.

On December 6, 2016, the Speaker ruled on the need for a royal recommendation for Bill C-243, an act respecting the development of a national maternity assistance program strategy and amending the Employment Insurance Act, maternity benefits. The Speaker stated:

In this case, Bill C-243 does not impose any new charge on the public treasury but creates a new set of conditions, relating to the safety of their workplace for their pregnancy, under which pregnant women could have access to benefits related to their pregnancy from as early as 15 weeks before the birth of their child. Though the sponsor of the bill argues otherwise, the Chair is not convinced that the current act allows spending under the circumstances, in the manner, and for the purposes he proposes. This being a circumstance not yet envisioned in the Employment Insurance Act, it infringes on the terms and conditions of the initial royal recommendation that accompanied that act and therefore requires now a new royal recommendation. This remains the case, even if the total amount of benefits stays the same.

Consequently, the Chair will decline to put the question on third reading of the bill in its present form unless a royal recommendation is received.

A royal recommendation may only be obtained by a minister of the Crown on the advice of the Governor General. In the absence of a royal recommendation, Bill C-237 may proceed through the legislative process in the House up until the end of the debate at third reading. In cases in which the Speaker has ruled that a royal recommendation is required and it has not been provided before the third-reading vote, the Speaker refuses to put the question at third reading and orders the bill discharged from the Order Paper.

I submit that this is the case before you, Mr. Speaker, with respect to Bill C-237.

[Louis Plamondon, Bloc, Bécancour—Nicolet—Saurel, QC]

Madam Speaker, I appreciate your intervention.

Only the specific conditions of the Canada Health Act are affected. The Speaker has ruled on many occasions that playing within these standards does not generate or reallocate an expenditure and therefore does not require a royal recommendation.

In the 27 years since the start of the 35th Parliament, when bills began to be tracked in the LEGISinfo parliamentary module, no fewer than 31 private members' bills have proposed amendments to the Canada Health Act.

All of them added new conditions. Some required the province to develop new services in order to receive the Canada health transfer. Others imposed requirements on how health services had to be delivered in order to receive the transfer. Others prohibited access to the Canada health transfer for provinces that provide certain free services, in this case abortion. I will let the members guess which party recommended that.

The Chair did not require a royal recommendation for any of these bills, not one. Of course, not all of them were on the order of precedence, so the Chair did not have to rule on many of them. However, in some cases, the Chair did have to do so.

Take Bill C‑282, introduced during the 36th Parliament by the Liberal member for Ottawa—Vanier, the late Mauril Bélanger, a great defender of the rights of Franco-Ontarians. He introduced the bill in response to the crisis surrounding the Montfort Hospital, a francophone hospital in Ottawa that the Ontario government had tried to close.

The bill introduced a new condition in the Canada Health Act to set new language requirements for French-language services in the provinces and English-language services in Quebec. If the province did not meet these conditions, the minister could cut the transfer. The bill was placed on the order of precedence without the Chair indicating that it required a royal recommendation. It was subsequently debated.

If members consult the March 19, 2003, Hansard, they will see that the Parliamentary Secretary to the Minister of Health spoke on behalf of the Crown in the debate. He never made any mention of a royal recommendation. On the contrary, he asked members to refer the bill to the Standing Committee on Official Languages before second reading because “The federal government cannot and must not act unilaterally in a shared provincial jurisdiction. Any decision to broaden the scope of the Canada Health Act requires extensive consultations with the provinces”. In short, he asked the House not to pass the bill, even while recognizing that it had the right to do so.

I will give another example, that of Bill C-213, an act to enact the Canada pharmacare act, which was introduced by the member for New Westminster—Burnaby and voted on by the House at second reading on February 24, 2021. This bill basically creates a new transfer.

According to clause 4 of this bill, “The purpose of this Act is to establish criteria and conditions that must be met before a cash contribution may be made in respect of public drug insurance plans.” After setting out the specific conditions, the bill indicates that the minister “may” make a transfer to the provinces to fund a provincial drug program.

It is important to note that the bill does not set out a specific amount. I understand that it was specifically written that way so as to not generate any new spending and therefore not require royal recommendation. It worked. Even though the bill created a new transfer, even though it set out specific goals and conditions, it did not require royal recommendation because it did not generate any new spending.

If we apply the same logic to Bill C-237, we can come to only one conclusion. This bill does not require a royal recommendation.

[Louis Plamondon, Bloc, Bécancour—Nicolet—Saurel, QC]

Madam Speaker, I rise on a point of order.

Yesterday evening, Monday, February 28, the Speaker said:

I would encourage members who would like to make arguments regarding the requirement for a royal recommendation with respect to [Bill] C-237...to do so at an early opportunity.

I am rising on a point of order this evening in relation to that.

I admit that I was surprised by this statement. Royal recommendation is the mechanism by which a private member's bill cannot have any financial implications unless it is recommended by the Crown.

Financial implications refers to both new expenditures and reallocation of funds for other purposes. Bill C-237, which I am introducing, does not do either.

In my view, it is clear that Bill C-237 does not require a royal recommendation and has the potential to be voted on by the House at all stages and implemented, for the following five reasons.

First, it does not require any new spending.

Second, it does not change the transfer amounts, nor does it change the names of the beneficiaries or how the funding is allocated to them.

Third, it does not change the purpose of the transfer. The Canada health transfer will still be dedicated to paying for health care. The same goes for other transfers that are allocated to a province if it has “a program whose objectives are comparable to those of a federal program”.

Fourth, it does not force the executive's hand, which retains the latitude and margin of appreciation required to transfer the funds. That prerogative remains in place. The executive will decide whether the province has a comparable program and will determine whether the province is complying with the conditions in the Canada Health Act.

Finally, precedents are on my side. There have been many bills that have changed the normative framework without any financial implications. I actually found 31 bills that amend the Canada Health Act, and not one required a royal recommendation.

For all these reasons, I believe that Bill C‑237 does not require a royal recommendation.

Let us examine it in detail. Bill C‑237 amends the Federal-Provincial Fiscal Arrangements Act in two ways.

It provides all interested provinces with the opportunity to opt out of a federal program that falls under the legislative authority of the provinces. In that case, the government can pay the province a transfer equivalent to the contribution that it would have received had it not withdrawn. This means that it is an equal amount or a zero sum.

The bill adds that the government will only pay the contribution if the province “has a program whose objectives are comparable to those of a federal program”. In short, the purpose of the transfer does not change either.

This mechanism is quite similar to the one that exists in the Canada Student Financial Assistance Act, for example. If a province has its own program and withdraws from the federal program, it receives the same transfer that it would have received had it not withdrawn.

The transfer is unconditional and goes into the province's consolidated revenue fund, but only if it has a comparable program. It is up to the minister to determine whether it has a comparable program.

Without any conditions on how the province runs the program, the transfer still serves the same purpose, which is to ensure that students can access financial assistance.

This same principle is in Bill C-237, which I introduced. It does not change the amounts or recipients, the distribution of the amounts among them, or the purpose of the transfer. It simply reduces federal control over the management of provincial programs in the provinces' own jurisdictions. Again, this is about provincial management of provincial programs. That is the only thing that is impacted here, and it has little to do with the prerogative of the federal Crown.

Bill C‑237 proposes a second amendment to the Federal-Provincial Fiscal Arrangements Act, this one just for Quebec. The federal government has announced that it plans to set conditions applicable to long-term care facilities and retirement homes. I assume that they will be included in the Canada Health Act, since long-term care facilities fall under the definition of “extended health care services” in the act.

Since Quebec was the only one to object, Bill C-231 would exempt Quebec, and only Quebec, from the Canada Health Act, much like the proposal by my colleague from Montcalm to exempt Quebec from the Canadian Multiculturalism Act in his Bill C-226 in the 43rd Parliament, which did not require a royal recommendation.

The Canada Health Act does not have financial implications per se. It sets out a normative framework, five principles for the government to consider in the Canada health transfer, which is provided for in the Federal-Provincial Fiscal Arrangements Act. It is the latter act that has financial implications.

My bill, Bill C‑237, does not change the purpose of the Canada health transfer. It does not change the purpose of the transfer defined in section 24(b) of the fiscal arrangements act as “contributing to providing the best possible health care system for Canadians and to making information about the health care system available to Canadians”. Bill C‑237 does not change this section of the act, which sets out the purpose of the transfer.

Under the Canada Health Act, the government is responsible for determining whether the provinces are in compliance. In Bill C‑237, the government determines whether the province has “a program whose objectives are comparable”. Personally, I would have preferred not to include that clause in Bill C‑237, but I realized that this would have changed the purpose of the transfers and could therefore have required a royal recommendation.

Bill C‑237 has no financial implications in terms of the amounts, their destination, their purpose or the general conditions. Only specific conditions in the Canada Health Act are affected.

Madam Speaker, I hear a lot of noise in the House and I am having a hard time delivering my speech.

Revocation of the Declaration of a Public Order Emergency

[The Speaker, Liberal, Anthony Rota]

The House will soon begin Private Members' Business for the first time in this Parliament. I would therefore like to make a brief statement to remind all members about the procedures governing Private Members' Business and the responsibilities of the Chair in the management of this process.

As members know, certain constitutional and procedural realities constrain the Speaker and members insofar as legislation is concerned. One such procedural point concerns whether or not a private member’s bill requires a royal recommendation. The Speaker has underscored this issue numerous times in past Parliaments.

As noted on page 835 of House of Commons Procedure and Practice, third edition:

Under the Canadian system of government, the Crown alone initiates all public expenditure and Parliament may authorize only spending which has been recommended by the Governor General. This prerogative, referred to as the “financial initiative of the Crown”, is the basis essential to the system of responsible government and is signified by way of the “royal recommendation”.

The requirement for a royal recommendation is grounded in section 54 of the Constitution Act, 1867. Its language echoes Standing Order 79(1), which reads:

This House shall not adopt or pass any vote, resolution, address or bill for the appropriation of any part of the public revenue, or of any tax or impost, to any purpose that has not been first recommended to the House by a message from the Governor General in the session in which such vote, resolution, address or bill is proposed.

As a result, any bill proposing to spend public funds for a new and distinct purpose, or effecting an appropriation of public funds, must be accompanied by a message from the Governor General approving the expenditure. This message, known formally as the royal recommendation, can only be transmitted to the House by a minister of the Crown.

A private member's bill that requires a royal recommendation may be introduced and considered right up until third reading on the assumption that a royal recommendation will be provided by a minister. However, if none is produced by the conclusion of the third reading stage, the Speaker may not put the question for passage at third reading.

Following the establishment or the replenishment of the order of precedence, the Chair has developed a practice of reviewing items so that the House can be alerted to bills that, at first glance, appear to infringe on the financial prerogative of the Crown. The aim of this practice is to allow members the opportunity to intervene in a timely fashion to present their views about the need for those bills to be accompanied or not by a royal recommendation.

The order of precedence having been established on February 9, 2022, I wish to inform the House of two bills which preoccupy the Chair. These are: Bill C-215, an act to amend the Employment Insurance Act (illness, injury or quarantine), standing in the name of the member for Lévis—Lotbinière; and Bill C-237, an act to amend the Federal-Provincial Fiscal Arrangements Act and the Canada Health Act, standing in the name of the member for Bécancour—Nicolet—Saurel.

I would encourage members who would like to make arguments regarding the requirement for a royal recommendation with respect to these bills, or with regard to any other bill now on the order of precedence, to do so at an early opportunity.

I thank all the members for their attention.

Federal-Provincial Fiscal Arrangements Act

[Louis Plamondon, Bloc, Bécancour—Nicolet—Saurel, QC]

moved for leave to introduce Bill C-237, An Act to amend the Federal-Provincial Fiscal Arrangements Act and the Canada Health Act.

Mr. Speaker, the bill I am introducing protects the provinces, especially Quebec, from the biggest threat to their autonomy. This threat is the so‑called federal spending power.

First, under this bill, Quebec is exempt from any standards that the federal government imposes under the Canada Health Act, including the upcoming standards on long-term care homes.

Second, this bill amends the Federal-Provincial Fiscal Arrangements Act. Quebec and any provinces that so desire will be able to withdraw, with full compensation, from federal programs in their exclusive areas of jurisdiction to regain their autonomy in the areas where they are meant to be autonomous.

(Motions deemed adopted, bill read the first time and printed)