Human Resources Committee on April 26th, 2007

[The Chair, Conservative, Dean Allison]

No time at all.

I'd like to thank you, Mr. Savage.

I'll now move on to Mr. Lessard, seven minutes, please.

[Yves Lessard, Bloc, Chambly—Borduas, QC]

Thank you, Mr. Chairman.

I wish to thank you for being here this morning, and I appreciate your participation all the more since we have some questions with regard to the interpretation to be given of certain aspects of the bill. Upon reading the bill, our understanding is that if it is adopted, the legislator will have to express its will to remove Quebec from its ambit. There is recognition that the child care system is already in place in this province.

To what extent will this provision prevent the Canadian government from interfering anyway with the Quebec program? Let me explain. The bill sets out criteria that the provinces and territories will be obligated to respect. It further provides for the establishment of an advisory council that will table observations as well as reports and that will follow the evolution of the entire process.

If by chance one of the program's criteria happened to not be respected in Quebec, for example with regard to children with disabilities, would the Canadian government be allowed to intervene?

[Christian Beaulieu]

Mr. Lessard, I can but give you the following answer: the bill does indeed seem to exempt Quebec from the obligation to respect the conditions as set out. As you mentioned on Tuesday, I believe, the bill does however require the establishment of an advisory council. In the area of constitutional law, Parliament is sovereign. As long as it respects the Constitution, obviously, it has the power to determine the requirements to be set out. Here, in exercising its sovereignty, the federal Parliament has decided to exclude Quebec from the ambit of this bill. Quebec is not subject to these conditions, but is nevertheless entitled to full compensation for the costs of its child care program.

It is to my mind self-evident that this advisory council's mandate entails providing advice to the minister and, should the occasion arise, to Parliament. If this council deemed that the exemption granted to Quebec was not in compliance with federal requirements, then it would have all of the discretional authority necessary to recommend that the law be changed in order to remove this exemption. Parliament being sovereign, it is free to follow or not follow the recommendations of the advisory council.

[Yves Lessard, Bloc, Chambly—Borduas, QC]

What I want to know is if these provisions, as they are now drafted, would allow for that.

[Christian Beaulieu]

The way I read the bill in its present form, all that is set out here is the power to create an advisory council whose role it would be to make recommendations, period.

[Yves Lessard, Bloc, Chambly—Borduas, QC]

It is the provinces and territories who are responsible for establishing everything involving education, child care and early learning. In the beginning, you seemed to be delighted by the bill. You were saying that it would be beneficial.

To what extent is there a need for a Canadian act governing what goes on in the provinces?

[Christian Beaulieu]

I will make one correction, and it is a matter of perception. We represent the Department of Justice. We gave no opinion whatsoever as to our delight or lack of same with regard to the announcement of such an act. I do not know to what you are alluding. All I can tell you is that this is a bill that was brought forward by a member of Parliament and that Parliament is entirely free to either adopt or reject it. This is a private member's initiative as opposed to a government initiative.

[Yves Lessard, Bloc, Chambly—Borduas, QC]

I was not attempting to interpret your behaviour. It simply seemed to me that you were responding favourably to the bill, which, I hasten to add, I would have been in complete agreement with.

[Christian Beaulieu]

In answer to Mr. Savage's question concerning the extent to which this is a common practice, I stated that this is indeed a more and more common occurrence. It is not up to us to say if we are in favour or not of a given practice. We simply observe the facts.

[Yves Lessard, Bloc, Chambly—Borduas, QC]

With regard to the distribution of powers, do you foresee the enforcement of this bill creating any difficulties with regard to provincial responsibilities or jurisdiction?

[Christian Beaulieu]

Our objective opinion is that this bill seems to fit within the exercise of the federal Parliament's spending authority. This authority has been recognized by most commentators and experts in the field, as well as by the Supreme Court of Canada on at least two occasions. This is an exercise that is recognized within Canadian constitutional law.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Lessard.

We're now going to move to Ms. Chow, for seven minutes, please.

[Olivia Chow, NDP, Trinity—Spadina, ON]

It is correct that the Early Learning and Child Care Act is modelled under the Canada Health Act. We had a lawyer who assisted in drafting this act, and in fact that is what the model is.

We have something in front of us from the Library of Parliament. I want to read part of it to make sure that you are in total agreement with this quote:

“Parliament…is entitled to spend the money that it raises through proper exercise of its taxing power in the manner that it chooses to authorize. It can impose conditions on such disposition so long as the conditions do not amount in fact to a regulation or control of a matter outside federal authority.”

It goes on to say:

Applying this principle to Bill C-303, it appears that none of the criteria or conditions attached to a child care transfer payment under the Act would amount to a regulation or control of an ELCC program or service in a province or territory....Accordingly, it appears that Parliament is constitutionally competent to enact Bill C-303.

You 100% agree with that; of course, it's like Winterhaven, which you talked about. So as far as—

[Mark McCombs]

Are you asking us to express an opinion on the bill itself?

[Olivia Chow, NDP, Trinity—Spadina, ON]

No, no. Do you agree with that—

[Mark McCombs]

Just the federal spending power.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Absolutely.

[Mark McCombs]

The federal spending power in that area is exactly that. It's raising the money for taxes. It's the spending of money from the CRF for certain objectives. The courts have said that as long as you're not regulating within the provincial field, it's a valid use of the power.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Of course, that would be the way to establish a national program if the federal government chose to have some criteria, conditions, standards, and accountability on how the money is spent. That's normally how it did that in the CAP, even though it got eliminated in 1995.

[Mark McCombs]

Yes, generally the federal programs that operate such as that, to create national standards, use the federal spending power just in that manner. There is an offer of money to the provinces; under certain conditions a province decides, yes, it is interested and accepts the offer.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Right.

There have also been other arguments to say that the social union framework agreement is really talking about the process of different provinces coming onside; it is really a process. As you may know, there has been a lot of discussion on child care programs since 2000, whether through the early childhood development initiative, the multilateral framework agreement, or the bilateral framework agreement. There have been agreements and discussions and consultations, so even if it didn't go through a process of having six provinces signing on, that does not impede the enactment of this bill, because Parliament is not bound by it.

Do you also agree with that?

[Mark McCombs]

Parliament, as my colleague said, is supreme with respect to the measures it wishes to take. The SUFA agreement is an executive-level agreement between the provinces and the federal government. It sets out certain processes and certain consultation mechanisms with respect to how the federal spending power is being used in the social programs area.

[Christian Beaulieu]

I may add that it's very important to distinguish between what the government is committed to doing and what Parliament may want to do.

SUFA is a governmental arrangement with provinces. Here the bill is an initiative of Parliament; Parliament being sovereign over the government, it's not the same field on which we are playing.

[Olivia Chow, NDP, Trinity—Spadina, ON]

How else legally would one get accountability on how the funds are spent? If you transfer money to a body, whether it's a province, a municipality, a non-profit organization, or a trust fund, there has to be either a bill that says you need to meet these requirements to get the money, or it is an act of faith, or it is a legal agreement, which is what the old SCPI, the homelessness program, was. That was the support community partnership, which has a new name now. That's a legal agreement with municipalities or the provinces.

Other than legal agreements, there's really no other way of having any accountability on any of the funds. You basically transfer the funds; then the province can do whatever it chooses to do with the funds. Am I correct on that?

[Mark McCombs]

I'll let my colleague speak to the mechanisms here.