Thank you, Mr. Chair.
I have two preliminary comments. The first is to confirm that I'm here in a personal capacity. The second is to say to the committee that my research focuses on federalism more than on child care and early learning, so my remarks will mainly be focused on the intergovernmental dimensions of Bill C-303.
I understand that the sponsors of this bill are relying on the federal spending power as the constitutional basis for what would otherwise be seen as an area of mainly provincial legislative competence under the Constitution. I am also aware that legal counsel from HRSDC has already testified concerning this spending power. I am in broad agreement with their interpretation of its scope and nature.
I would add, however, that there have long been political--I emphasize the word “political”--differences of opinion concerning the appropriate use of the spending power, and these differences reflect varied perspectives about the nature of the federation itself. In recent decades, these differences have led to several admittedly unsuccessful efforts at constitutional reform that would have placed some limitations on this power. In a similar vein, when the non-constitutional 1999 social union framework agreement was negotiated by federal, provincial, and territorial governments, Quebec excluded, it included some limitations--modest limitations, it must be said--on the federal spending power.
My only point in this regard is that notwithstanding the constitutional support for a federal spending power, its use is politically sensitive, and judging the appropriateness of conditions attached to federal transfers often involves shades of grey, rather than black and white. That is why, of course, the use of the federal spending power typically entails consultation and negotiation with provinces and territories.
Turning to the bill itself, it appears to be modelled in important respects on the Canada Health Act. I have three principal sets of concerns regarding Bill C-303. The first is that the bill is not easy to interpret. For that reason, its impact is uncertain. For example, subclause 5(4) requires that the early learning and child care program of a province or territory will “...ensure that all children resident in the province or territory are equally entitled to early learning and child care services that are appropriate to their needs”.
This might reasonably be interpreted, at least in my view, as disqualifying the early learning and child care programs of most, if not all, provinces and territories because they almost certainly do not meet that definition of universality. I note in this regard that this definition appears to go beyond the definition in the 2005 agreements that the previous government entered into with provincial governments. You might look, for example, at the agreement between Canada and Manitoba dated April 29, 2005.
Similarly, the bill requires that a provincial or territorial program be of “high quality”. This requirement is linked to subclause 5(3), where the concept of quality is developed more fully. Whether in fact any province or territory could satisfy this criterion, however, is an open question. Recent research conducted under the auspices of the Institute for Research on Public Policy suggests, for example, that the quality of early learning and child care services in Quebec is uneven at best. While Quebec is not to be subject to the conditions of this bill unless it opts in, I mention this only because even that province, which is generally assumed to be a leader in this field, might have some difficulty fully satisfying this criterion.
My second broad comment is that the bill is intrusive relative to provinces and territories. Apart from its grandfathering provisions, the bill precludes for-profit child care delivery, and in so doing is reaching deeply into provincial jurisdiction in its efforts to discourage for-profit delivery. You've heard from at least one province, probably two, to that effect. I believe that this bill goes further than the Canada Health Act, as the Canada Health Act does not, at least in my judgment, preclude private delivery of publicly insured services.
My third category of comment is that Bill C-303 is one-sided relative to the provinces and territories, apparently ignoring the federal–provincial–territorial consultation processes called for in the social union framework agreement when Ottawa wishes to amend an existing federal-provincial agreement. Bill C-303 imposes new obligations on provinces and territories without offering incremental transfers, or even assurances that current transfers will be maintained.
I would point out in this regard that the federal government, initially through federal-provincial agreements for hospital and medical services, created financial incentives for provinces to expand vastly their public delivery systems of health care services.
Once this was established, the federal government gradually reduced its share of health care spending to the point of causing a huge federal-provincial-territorial brouhaha a few years ago. The federal government has since increased, very substantially, its cash transfers to the provinces and territories for health care, but this took several years of difficult and protracted negotiation.
I recognize that since this bill was not introduced by a member of the government, it cannot, or at least should not, contain spending commitments. Parenthetically, I would say whether it actually does contain spending commitments is a separate issue that I will leave to the lawyers to debate, but I do think the committee needs to consider how to ensure that the federal fiscal commitment is a long-term one in the event that provinces and territories stand ready to move decisively in the direction that the bill intends. Were I a provincial official, I would be very skeptical of basing the expansion of my public sector on federal financial incentives unless there was a strong long-term federal political and legislative commitment on the funding side. History teaches that if provinces do not do so, they can be left holding the bag.
On a related point, in the event that transfers are to be withheld or withdrawn, subsection 14(2) of the Canada Health Act at least requires the federal authorities to consult with the affected province before acting, whereas Bill C-303 appears not to afford the same opportunity to a provincial or territorial government before punitive action is taken. In this sense, Bill C-303 is more arbitrary than the Canada Health Act.
This brings me to my last point, Mr. Chair. Put simply, it's hard for Parliament, acting on its own, to legislate effectively--and I would emphasize the word “effectively”--in the federal-provincial arena when the federal government and the provincial governments are not directly involved.
Perhaps the intent of the bill is simply to send a symbolic message and help motivate provinces and territories to encourage the federal government to return to the bargaining table. If the bill is enacted and that is its only effect, I would applaud that result. However, given the stated policies of the federal government in this policy area, I am stymied as to how, as a practical matter, this could be brought about.
If this bill is enacted but does not lead to renewed federal-provincial-territorial negotiations, it's possible that it will just sit there, with the federal authorities enforcing it very lightly. After all, Bill C-303 does not require--and I emphasize the word “require”--the Governor in Council to withhold payments when conditions are not satisfied.
It's also possible that the federal government will enforce it, leading to cuts in federal transfers for child care.
What do I conclude? First, the impact of Bill C-303 is uncertain, with the risk of unintended consequences. Second, given the lack of commitment to new fiscal resources; given the lack of intergovernmental consultation processes called for by SUFA, the social union framework agreement; given the lack of a consultation procedure for a province or territory before its transfers are withheld; and given the ambiguities pertaining to its interpretation, Bill C-303 could create a new flashpoint in federal-provincial-territorial relations.
That completes my opening remarks, Mr. Chairman. Thank you very much.
