Thank you, Mr. Chair.
I agree with very nearly everything that Professor Ryder just said, so I don't want to be repetitive. He did a great job.
You are putting both of us, however, in a somewhat difficult position, because we're asked to say whether pharmacare would be constitutional without real certainty as to what pharmacare is, which makes any opinion tough, right? You don't know what you're giving an opinion on.
If pharmacare means cheaper medicines for all, then it's motherhood and apple pie, and nobody could possibly say that's a bad goal or it's one that the constitutional scholars of the courts would be unsympathetic with. We're all sympathetic with it. The difficulty comes when you start asking how to achieve this.
Roughly speaking, in policy, there are three different ways. Option one is to amend the Canada Health Act, as Professor Ryder said, to make it include drugs given outside of hospital. Those currently are excluded from the Canada Health Act. Option two is for the federal, provincial, and territorial governments to co-operate in some way on drug pricing. Option three is for the federal government to legislate a national drug price regulatory system.
In brief, I think options one and two would be constitutional; option three is almost certainly not constitutional. The reason is that if one were to legislate a national drug price regulatory system, that's obviously a very complex regulatory scheme, and it would be looked at by the courts under the trade and commerce power of the Constitution, which is class 2 of section 91. We've had some adverse experience lately with that power in the Supreme Court. The reference re the proposed securities act, that case of about five or six years ago, determined that a national securities regulator, as was proposed in greater detail than pharmacare now is being proposed, was not going to withstand a constitutional challenge under class 2, section 91, the trade and commerce power. The reasons are that for something to survive under that power, to be valid as federal law, it shouldn't focus on a single industry—of course, pharmacare would focus on a single industry—and it should be a matter in which there's some demonstrated provincial incapability to act.
Of course, you already have the provinces, through the Council of the Federation, acting on drug price rather energetically. As an aside, I'll say they're not doing a very good job. Being a professor, I'm allowed to hand out marks. I will give them a D. However, they are being energetic and they're trying in such a way that you can't really say there's provincial incapability.
The other case from the Supreme Court that gives me pause is the reference on assisted human reproduction, which was again about five or six years ago, in 2011. That concerned a regulatory scheme for such things as in vitro fertilization. It too didn't survive constitutional challenge at the Supreme Court. It dealt with an aspect of the health care system that advocates wanted regulated for reasons of safety, quality, and appropriate clinical practice. Well, that's exactly the set of reasons offered for a pharmacare system.
What the Supreme Court said was that aside from the few criminal law sections of the Assisted Human Reproduction Act, most of the rest was unconstitutional. This echoes Professor Ryder's point that if something is in pith and substance purely criminal and takes the criminal law form, it will survive, but the regulatory scheme attached to it for human reproduction, and potentially for pharmacare, would be very constitutionally vulnerable.
In my final two minutes here, how would you do this? If you wanted a national pharmacare program, how would you do it? The spending power, as Professor Ryder said, matters, and you could do it by expanding the spending as well as the scope of provincial obligations under the Canada Health Act. That said, the Canada Health Act is very poorly policed by the federal government. If this were the approach taken, there is no doubt in my mind that provinces would flout whatever new mandate was put in place and the money would not be used in the best possible way.
Another way to go about this is perhaps through a series of contracts, because while legislation is constitutionally vulnerable, contracts are not, or very much less so. You could have the federal government and the provincial governments enter into a contract for how they would purchase medicines and agree on the modalities to do it, and perhaps designate a common buying agent. By doing this contractually through private law rather than legislatively through public law, you have certainly more latitude than you would otherwise. In fact, you would have so much more latitude, I think, that it would be foolhardy to attempt this under public law where that option exists.
Let me say one final thing, and it's an afterthought. I apologize, because it doesn't really fit with the rest of this.
My students and I have published research on the prices of drugs in Canada. The findings are scandalous. Particularly for generic drugs, we pay way too much. As a terse illustration of that, some drugs made by Apotex, a Canadian company, after the intervention of the provinces, cost more in Canada than they do in other countries. How can the product of a Canadian company cost more in Canada than, say, in New Zealand? And yet, that's happening in some instances with Apotex products, so there is a very serious problem here. In the Q and A, I would explain to you, if you wish, why I think there's a need for the Competition Bureau to look at some of the practices in this industry sector.
I'll leave it there, and thank you for hearing me out.