I suppose one model, of course, is the Canada Health Act. The idea is that the Parliament of Canada takes the lead in establishing national standards, reflects values on which I believe there is great consensus in Canadian society, and then leaves the details to the provinces, in negotiation with the federal government.
Of course, there is an argument for a stronger federal role than the one that exists through the federal spending power. The argument relates to the kinds of considerations that Professor Attaran was exploring earlier, such as whether or not we're dealing with subject matter that is really beyond the capacity of the provinces to deal with effectively.
That's an idea that informs both the interpretation of the general regulation of trade branch of Parliament's trade and commerce power under section 91, class 2, as well as the interpretation of the national concern branch of the POGG power.
My view is that there is a case, and I'm not sure I'm quite as pessimistic as Professor Attaran is. I don't think it's—and I'm not quite sure how you put it—almost doomed to failure. I think there is an argument, and it may be a strong argument, under the national concern branch of POGG. This is not so much under the general regulation of trade branch of trade and commerce, because it doesn't allow regulation of a specific industry, and that's what we're dealing with here.
The national concern branch of POGG, as I discussed earlier, just asked if this is a question of national importance. I don't think there is any doubt about that. Is it a subject matter that's defined with sufficient focus and specificity? I think there is an argument that it is.
In thinking about that, is this something that the provinces can deal with effectively, acting on their own? There are arguments, of course, that while they have dealt with this subject for some time, there are serious problems in accessibility and in achieving affordable prices of drugs as a whole that can only be addressed through a national program.
If you accept that argument, then I think there is a powerful basis for using the POGG national concern branch, but it would mean going out on a limb that Parliament rarely climbs out on, and it's not completely sturdy.