Health committee  The difficulty with it is the suggestion that there's a secure constitutional footing. I'm not sure what Professor Marchildon was referring to. I read his testimony with interest and was wondering exactly what he meant by that. The existing secure constitutional footing is, of course, the Canada Health Act, the spending power; the criminal law power, which supports the Food and Drugs Act and regulation that's designed to ensure the safety of drugs and protect consumers from deception—those are valid criminal law purposes—and, of course, as I mentioned earlier, the federal patents power, which supports the Patent Act and the regulation of patented pharmaceutical products.

Health committee  It's a valid exercise of the federal spending power, so it's not any single explicit power, because it's not mentioned anywhere in the Constitution, but it's a combination of the federal taxing power in class 3 of section 91 and the power to dispose of public property.

Health committee  Not the word “health”, but hospitals, yes.

Health committee  I'm not sure I totally understand what kind of an approach you're imagining, but let me just speak to the direction in constitutional law about the nature of our federation, which I think is very well articulated by the Supreme Court of Canada. It is focused on an idea of co-operative federalism and balanced federalism that really leans towards negotiated solutions and contractual solutions and puts a high premium on intergovernmental negotiations.

Health committee  How would a renewed approach to federalism do that?

Health committee  Thank you, Dr. Eyolfson. That's also a good question. There are, of course, charter implications to this topic. They rise not just under section 7 but also potentially under section 15 of the charter, which prohibits discrimination. Let me say a quick word about each. I don't think there's a strong chance of a challenge succeeding pursuant to section 7.

Health committee  I appreciate the question. The passage you've read is an important one, and it expresses themes that we can find in many different cases involving the interpretation of the division of legislative powers. The Supreme Court of Canada is very concerned about a balanced approach and prefers co-operative solutions, and the securities act reference is a prime example of that.

Health committee  I'm not familiar, Mr. Oliver, with any challenges to the Canada Health Act as a valid exercise of the federal spending power. There have been a number of challenges to other federal spending statutes in a variety of contexts. There's a significant body of case law now in which, for example, in the context of the Canada assistance plan, in the context of federal spending, and in the context of housing, where the courts have approved the exercise of the federal spending power in areas of exclusive provincial jurisdiction with conditions attached, the implication of those decisions, even though they're not dealing with the Canada Health Act itself, is the same reasoning that would lead to the conclusion that it's a valid exercise of the federal power.

Health committee  No, I'm quite confident that would be a valid exercise of the federal spending power. Of course, it would depend on the degree of specificity that's build into the act. Right now we have general principles and general definitions, and much of the detail is left to negotiations. If that kind of structure were to fall out, I think there would be zero doubt, but if you decided to go further and seek to define with some specificity which drugs are covered, through the inclusion of, for example, a national formulary as part of the regime, there may be more doubt.

Health committee  I don't know what the exact count is, but it's remarkable how infrequently the court has had to engage with the POGG power. A few from the modern era that are most relevant to thinking about its scope. There was the anti-inflation reference from 1976, which focused primarily on the emergency branch of the POGG power.

Health committee  I think you'll hear two different stories. I agree; I think it does fit that test very well. We talked earlier about the securities reference, which of course was focused on a different power. Similar arguments, of course, were made by the federal government in support of the proposed securities act—that is, that it would be more efficient; uniform regulation is desirable in the area, for a number of reasons; and that if we don't have 13 different securities regulators in each province and territory but one national securities regulator, there are real advantages.

Health committee  I'm not.

Health committee  I don't think so, because that could be agreed to as part of the negotiations between the federal government and the provincial and territorial governments. However, it might be a good idea to amend the Canada Health Act because if it's amended to provide coverage for drugs administered outside of a hospital, of course the obvious question is, which drugs?

Health committee  I appreciate the question very much. It does seem to me that the distinction between the coverage we have of physician services and hospital services, in accordance with the principles set out in the Canada Health Act of universality, comprehensiveness, accessibility, and so on, and the failure to include drugs administered outside of hospital, are very troubling.

Health committee  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.