Les politiques canadiennes sur les soins de fin de vie sont en pleine mutation et suscitent de plus en plus d’attention et de questionnements. Si l’aide médicale à mourir occupe l’avant-plan du débat, les directives médicales anticipées (DMA) — moins connues du grand public mais qui touchent aussi aux valeurs, aux croyances et aux besoins des personnes — ne semblent pas susciter le même intérêt. À tort. Certaines modalités du régime actuel de DMA doivent être remises en question, comme nous l’avons indiqué dans une récente publication de l’Institut de recherche en politique publique.
En 2015, le Québec a créé un nouveau régime de DMA qui permet aux Québécois de 18 ans et plus d’enregistrer dans un formulaire préétabli ou devant notaire leur volonté d’accepter ou de refuser certains soins s’ils deviennent inaptes à y consentir. Cinq interventions sont ciblées par ce régime — réanimation cardio-respiratoire, ventilation assistée par respirateur, traitement de dialyse, alimentation forcée ou artificielle, hydratation forcée ou artificielle — , lesquelles doivent s’inscrire dans des situations cliniques prédéfinies, soit lorsque le patient est en fin de vie ou que ses fonctions cognitives sont atteintes de manière irréversible. Une fois consignées, les DMA ont la même valeur juridique contraignante qu’un consentement aux soins habituel.
Différentes lacunes
Cette initiative québécoise s’inscrit dans un mouvement à l’échelle nationale et internationale qui vise à doter les gens de différents dispositifs leur permettant d’exercer pleinement leur autonomie. Or, bien que cet objectif soit important et légitime, nous pensons que, dans sa forme actuelle, le régime québécois comporte différentes lacunes. Notamment, en invitant les personnes souhaitant signer les DMA à simplement cocher des cases dans un formulaire préétabli, sans prévoir ni encadrer une réflexion sur leurs aspirations, valeurs et désirs dans un contexte de soins de fin de vie, on risque d’aboutir à des décisions qui pourraient aller à l’encontre de leurs volontés.
Par ailleurs, le régime québécois confère aux signataires la responsabilité de s’informer sur la nature des choix cliniques visés par le formulaire. Il leur incombe ainsi d’obtenir les informations médicales requises pour pleinement saisir les conséquences d’accepter ou de refuser certains soins, en se projetant au coeur de situations cliniques critiques éventuelles.
Ainsi, le devoir d’information usuel en matière de soins, normalement dévolu aux professionnels de la santé qui détiennent l’expertise et les connaissances requises, semble transféré aux patients. Étant donné sa nature abstraite, le processus établi par les DMA québécoises n’a certes pas à répondre entièrement aux mêmes formalités qu’un consentement ponctuel aux soins libre et éclairé ; néanmoins, on remet entre les mains des individus une importante décision de soins sans prévoir les ressources nécessaires pour leur fournir des informations médicales potentiellement complexes ni les renseigner sur les solutions de rechange possibles ou sur les conséquences de leurs choix. À titre d’exemple, des services d’information téléphonique avec du personnel qualifié et des capsules virtuelles expliquant ces éléments pourraient être prévus.
Fondamentalement, les gens devraient pouvoir manifester de façon claire et réfléchie leurs préférences relativement aux soins de fin de vie, en prenant en compte différents éléments importants pour eux, qu’il s’agisse de considérations personnelles ou relationnelles. Pour ce faire, plutôt que de leur offrir simplement des choix binaires (oui/non) dans un formulaire, il serait judicieux de prévoir, par exemple, un espace dans le document de DMA pour permettre aux gens d’exprimer des intérêts, des valeurs et des croyances qui donnent sens à leur vie (et à leur mort éventuelle). À titre d’illustration, on pourrait y lire que, pour certains, c’est la présence de souffrances physiques persistantes qui justifierait d’arrêter ou de refuser des traitements. Pour d’autres, ce serait plutôt la perte irréversible des facultés intellectuelles leur permettant d’interagir avec leur milieu qui motiverait un refus de soins. Ultimement, un régime de DMA devrait rendre compte des besoins au coeur des décisions des individus et être suffisamment flexible pour s’adapter à des situations de fin de vie qui peuvent comporter des ramifications complexes sur les plans humain, relationnel et clinique. C’est de cette façon que sera assuré le respect de l’autonomie des signataires des DMA.
Dans le contexte politique actuel où des voix s’élèvent pour réclamer l’ouverture des DMA à l’aide médicale à mourir, il semble plus que jamais essentiel de réfléchir aux lacunes du processus actuel et aux différentes options pour l’améliorer. Donner de l’information de qualité aisément accessible aux gens qui souhaitent signer le formulaire des DMA, leur permettre d’exprimer clairement leurs valeurs et prévoir des modalités de coexistence entre le régime des DMA et la nomination d’un mandataire sont quelques avenues à envisager.
Canada’s future competitiveness and growth prospects are inextricably linked to our ability to seize the opportunities created by the rapidly evolving digital economy. Evolving digital technologies create an opportunity for new products, technologies, services, business processes, societal tools, and organizations to generate new wealth, but they also challenge the existing system of production and our way of interacting with the world around us. The digital revolution involves more than just a set of industries; it has the potential to transform virtually every sector of the economy.
Canada’s challenge is that businesses have been slow to recognize the extent of the digital transformation, invest in software, and adopt new technologies. Canada’s ability to position itself as a global leader in the digital economy will depend on how effectively governments and policy-makers support firms in navigating these challenges and opportunities.
Government policy initiatives since 2016 have introduced a much-needed update to our innovation strategy, but they are not focused directly on the digital economy and the challenges it poses.
To overcome this gap, Canada’s innovation agenda must be extended to pursue a broader digital strategy centred on three main goals: 1) promoting the adoption of digital technologies across all sectors of the economy; 2) helping companies with a proven track record scale up for global expansion; 3) supporting the creation of firms capable of bringing new, disruptive products and services to global markets.
Ultimately, given the pace of change and the complexity of the challenges involved, the most effective way for governments to respond is through continuous innovation in policy and regulatory frameworks.
Research for a national program sponsored by the Social Sciences and Humanities Research Council has shown that Canadian business has been uneven in its ability to recognize the way software advances are transforming traditional industries. As a result, many Canadian firms are underinvesting in software and lagging in the introduction of corresponding digital processes and techniques to access global markets. Moreover, critical economic sectors are struggling to adapt to the disruption created by dynamic-platform firms.
Other obstacles compound these problems that hamper Canada’s ability to take full advantage of the digital revolution. One of these is Canada’s weak record in building local successes into global powerhouses. Promising startups all too often end up either moving to the United States or sold to foreign (usually U.S.) investors. Without high-growth companies of global scale, Canada will lack the training ground for managers with the skills needed to shepherd startups into successful scale-ups.
Another obstacle to the growth of digital firms is the shortage of Canadian-based patient capital for high-growth companies. Promoters of digital technologies emphasize their ventures’ strong growth prospects, but the reality is that high growth usually implies greater risk, which is a deterrent to traditional sources of investment in Canadian capital markets.
Competing successfully in the global economy increasingly depends on the ability to use intellectual property and proprietary standards as part of a competitive strategy to create what is called “room to operate.” Canadian innovation strategies need to pay greater attention to these critical elements of success in the digital economy.
Canada has a loose and poorly networked innovation system. Existing organizations and programs provide some support for research and development initiatives in advanced technologies and software. However, the system lacks a strategic focus, and key players, including businesses, research and training institutions, industry associations, and government, are not co-ordinated as well as they need to be.
Canada lacks a dedicated innovation agency with the mandate to invest in disruptive new technologies and support the growth of firms in emerging digital sectors. We need to do better at translating existing research strengths into emerging firms with the potential to grow to global scale.
Software and data will be the key to Canada’s success in the digital economy. Policies should ensure that promising Canadian innovators are given the intellectual property-related resources necessary to compete on a level playing field with multinational firms.
Canadian organizations that grant IP rights also need to focus on boosting the amount of Canadian-owned rights that are filed and registered globally. Finally, it is imperative that policy makers recognize the growing connection between IP rights and the ownership of data, as data are increasingly a critical source of competitive advantage for digitally enabled firms. The national IP strategy, therefore, needs to be closely linked to a national data strategy.
Most countries are positioning their digital sector as a critical driver of future economic growth. Not since the onset of the first industrial revolution have we seen such an interconnected set of technologies with the potential to disrupt established industries and economic patterns, as well as to generate new opportunities for future generations.
Governments’ ability to seize the digital opportunity and lay foundations for future growth will depend on realizing three goals: promoting the diffusion of digital technologies across all economic sectors, assisting companies with the commercial potential to grow to a scale that enables them to compete globally, and supporting the emergence and growth of firms with the potential to bring new disruptive products and services to global markets.
David Wolfe is co-director of the Innovation Policy Lab at the Munk School of Global Affairs and Public Policy with the University of Toronto. His full paper on this subject can be found on the Institute for Research on Public Policy website.
The case for universal pharmacare is compelling and clear-cut. But as the federally appointed advisory group led by former Ontario health minister Eric Hoskins prepares the blueprint for a national plan, Ottawa must brace itself for negotiations with the provinces and territories.
Canada is the only OECD country with universal health insurance that does not include prescription pharmaceuticals. One in five Canadians reports that they or someone in their household are not taking their medicine as prescribed, owing to concerns about costs. Although provinces provide coverage for some groups, including the poor and elderly, up to 20 per cent of Canadians have no drug insurance at all. Our limited access also doesn’t save us money: Canada has among the highest per capita drug expenditures in the OECD. This patchwork mix of public and private drug programs leads to access gaps and high costs that threaten the health, and the very lives, of thousands of Canadians annually.
But it doesn’t have to be that way. Ottawa and the provinces and territories have the chance to change lives with a robust, Canada-wide pharmacare program.
A clear set of objectives is essential for a successful outcome of negotiations between Ottawa and the provinces and territories. To be sure, there are many challenges. We need look no further than the bitter federal-provincial talks over health funding to recognize the delicate nature of such negotiations.
Complicating matters even more, governments have overlapping, and at times confusing, jurisdiction over health care under Canada’s constitution. As the Supreme Court has clearly and repeatedly indicated, which level of government has primary jurisdiction depends on the particular issue at hand.
Currently, the federal government exercises some of its constitutionally mandated powers to shape and direct pharmaceutical policy—playing a larger role in this domain than with respect to other parts of health care. This includes the regulation of patents and safety and efficacy of medicines. It also funds prescription drug benefits for specific populations, such as prisoners, members of the Armed Forces and the RCMP, and veterans.
Arguably, this provides a foundation for Ottawa to take a far stronger leadership role in the establishment of universal pharmacare than it has to date. In our recent study for the Institute for Research on Public Policy, we outline two constitutionally viable policy options for a national pharmacare framework.
Under the first option, the provinces would agree to delegate the power to administer drug insurance plans to a federally funded agency. This process was used to establish Canadian Blood Services in the 1990s. Through public tendering and bulk purchasing, the CBS has been able to achieve dramatic cost savings for certain pharmaceuticals on behalf of the provinces. Its success shows that intergovernmental collaboration to implement universal delivery of health-care products can be achieved where sufficient political will exists.
As a second option, the federal government could adopt legislation similar to the Canada Health Act and provide annual transfers for pharmacare to the provinces and territories. The funding would be contingent on compliance with two criteria: (1) universal coverage for a basket of essential drugs, with no copayments or deductibles; and (2) decisions over what to include in the basket to be made by an arm’s-length body (or bodies).
The forces in opposition to change are extremely formidable, including private insurers and pharmaceutical companies. There will be repeated calls that the status quo is not that bad and only minor changes are required.
We should learn from the experience of the United States health-care system, that the “fill-the-gaps” approach is mere code for more of the same: high prices and problems with access. It is imperative that the federal government makes a firm commitment to leading the country toward universal pharmacare. In negotiations with the provinces and territories, Ottawa’s bottom line must be ensuring the overarching principles of universality and accountable decision-making.
Colleen M. Flood, Bryan Thomas, and Patrick Fafard are professors of health policy and law at the University of Ottawa Centre for Health Law, Policy & Ethics. Asad Ali Moten is a freelance legal researcher in Toronto. They are authors of Universal Pharmacare and Federalism: Policy Options for Canada, published by the Institute for Research on Public Policy.
Canada has been an economic success story for as long as the country has existed. In fact, the growth rate of Canada’s GDP per capita – the basic measure of raw economic performance – has matched that of the United States on average for the past 150 years. Herein lies a deep paradox. Innovation is what ultimately drives economic performance, yet Canadian businesses are innovation laggards among advanced countries. So what gives?
The answer is that Canada has always had the good fortune of a uniquely close relationship with the world’s two innovation leaders – first Britain, and then the United States. Canada has been able to exploit its comparative advantage in natural resources to, in effect, trade commodities for technologies. We have been good at employing those technologies – for example, our highly productive auto and aerospace industries – but much less good at creating technologies or innovative business models. That’s because we really haven’t had to.
This explains why Canada ranks so low on innovation metrics such as business R&D and knowledge-intensive exports. And the low-innovation approach has persisted because it has worked extremely well for Canadian business and for Canadians generally. The perennial hand-wringing over Canada’s innovation weakness elicits mostly a yawn in the corridors of political and business power because our economy continues to deliver, and business continues to ring up healthy profits overall despite subpar innovation by international standards. Bottom line: Unless the model that has worked so well for Canada ceases to do so, nothing will really change.
Darkening this complacent picture are two big clouds that will require a major reorientation of business strategy and of government innovation policy. The first is that Canada’s productivity growth has been very weak since the mid-1980s, especially relative to the United States. We have only been able to keep pace in per-capita GDP growth as a result of our stronger job creation relative to population. But demographic aging implies that employment is going to fall as a per cent of population. This means that the future growth of per-capita GDP – and thus the growth of average living standards and of the tax base to support social policies – will depend entirely on productivity growth. And productivity growth depends ultimately on innovation, because innovation is the source of improvement in equipment, including software, and of new and better ways to combine talent, capital and resources to generate increasing economic value.
The second cloud concerns fundamental challenges to the longer-term profitability of Canadian business. The trajectory of the global economy is being set by four megatrends related to: (1) globalization – particularly the shift of growth to Asia; (2) technology – especially information technology, which is disrupting businesses everywhere; (3) sustainability – reflecting both a cultural and economic imperative to reduce environmental impact; and (4) demographic aging, which can only increase the importance of productivity growth. Prevailing Canadian business models are particularly vulnerable to these megatrends given our concentration in the U.S. market; lagging IT investment per worker; and the resource intensity of our economy. The only way to turn these challenges into opportunities will be through business strategies powerfully focused on innovation.
So the ball is in business’s court and market realities will provide the greatest motivation to embrace the innovation imperative. Public policy also has an essential role to play by creating conditions that give Canadian companies, large and small, the best chance to succeed.
Traditionally, government’s encouragement of business innovation has operated mostly on the “supply side” – helping to build capacity to innovate through development of highly trained people; subsidies for R&D; public infrastructure, and so forth. These measures continue to be necessary but clearly have not been sufficient. Needed now is more potent encouragement for Canadian business to break its low-innovation habit. Most effective will be policy measures that directly affect the bottom line – such as greater public procurement of innovative products from Canadian suppliers; regulatory approaches that encourage rather than inhibit innovation; trade and competition policies that create powerful incentives for Canadian companies to innovate to survive and grow.
Such “demand-side” approaches represent a new take on innovation policy, but they require a shift of mindset inside government to embrace a much broader conception of innovation and of how it can be supported. A whole-of-government responsibility for innovation will be resisted given the siloed organization of the public sector. That is why the change needs powerfully committed leadership from the very top. What justifies such a priority? It is simply that innovation is what will determine the future prosperity of Canadians.
Peter Nicholson is the founding president of the Council of Canadian Academies, a former policy adviser to the Prime Minister’s Office and former business executive. He is the author of Facing the Facts: Reconsidering Business Innovation Policy in Canada, published by the Institute for Research on Public Policy.
The Truth and Reconciliation Commission tells us that reconciliation not only requires apologies, reparations, the relearning of Canada’s national history, and public commemoration. It also requires real social, political, and economic change — in essence, defining a new place for Canada’s Indigenous peoples.
Symbolic gestures are not unimportant. For example, the prime minister’s recent statement exonerating six B.C. First Nations chiefs accused of murdering white colonists more than 150 years ago in pre-Confederation British Columbia.
But, achieving true structural change will require Canada’s governments to meaningfully treat Indigenous people as partners in our national success. Are we ready as a country? B.C.’s experience over the past 15 years sadly suggests the answer is “no”.
In a study prepared for the Institute for Research on Public Policy, I analyzed hundreds of bilateral agreements signed by B.C. with over 200 Indigenous nations since the early 2000s. While the agreements are positive steps, they are not the structural change called for by the Truth and Reconciliation Commission. They also fail to meet the province’s stated goal of fully implementing the United Nations Declaration on the Rights of Indigenous Peoples.
The Truth and Reconciliation Commission’s vision of real change reflects emerging domestic and international norms which provide governments with a check list of “to dos” for new relations with Indigenous peoples. Top of the list for structural change are two issues — the governance and sharing the wealth of Canada.
Indigenous nations must not only be allowed to govern their own affairs, but deserve a meaningful voice in the governance of their traditional lands. They are entitled to share the benefits that flow from the development of traditional lands, but that should mean a fair portion of the general revenues generated on those lands.
Successful Indigenous nations like the Nisga’a, the Tsawwassen, the Haida, the Squamish and the Musqueam have done so because federal and provincial governments took halting and usually begrudging steps toward those goals. But most B.C. Indigenous nations are nowhere near that destination. And even nations that have hard-won gains rarely say that they have everything needed for modern success.
The previous B.C. Liberal government characterized its new relationship with Indigenous nations as “based on respect, recognition and accommodation of Indigenous title and rights; respect for each other’s laws and responsibilities; and for the reconciliation of Indigenous and Crown titles and jurisdictions.”
The reality reflected in bilateral agreements falls short of those lofty aims. The province promised to respect its legal duty to consult, but since the ultimate power to decide rests with Victoria, there is no truly shared decision making between equals. While the provincial government says that the benefits of B.C.’s rich economy are shared, the reality is that Indigenous nations get only tiny amounts of resource revenues from their traditional territories.
B.C.’s approach has focused on fostering good relations, fulfilling legal duties to consult and making qualified commitments to future action on issues such as revenue sharing. However, B.C. has not comprehensively recognized or implemented the rights of Indigenous nations in ways consistent with the Truth and Reconciliation Commission’s vision of a new Canada. To date, there are few indications that the NDP government will take a significantly different approach from the Liberals.
Creative thinking is needed to deliver structural change in the province’s governance, economy and social order. Equally importantly, all governments — Indigenous and non-Indigenous — need to start an open, honest conversation with British Columbians about how much structural change is needed if we want our children to look back to the Truth and Reconciliation Commission as a turning point in our relations.
Michael Hudson is a former associate assistant deputy minister of Aboriginal Affairs at Justice Canada and special advisor to the prime minister of Australia on Indigenous issues. He led the federal government’s Task Force on Constitutional Relations with Indigenous Nations in 2016-17. He now serves as strategic advisor to a range of governments, Indigenous nations and industries.
Several provincial governments have recently increased public funding of child care services. The Alberta government announced a modest investment in child care in December 2017, and the BC government proposed a $1 billion investment over three years in its 2018 budget. In its latest budget, the Ontario government announced a very ambitious plan to provide free child care services for children aged 2½-to-4 years starting in 2020.
Despite these announcements, as we show in our study for the IRPP, the other Canadian provinces are far from matching the level of investment in child care that has been in place in Quebec since the late 1990s.
As shown in figure 1, public spending on child care services in Canada (0.2 percent of GDP) is the lowest of all OECD countries, tied with Turkey and Latvia (see figure 1). The UK spends 1.4 percent of GDP on child care services and Australia 0.8 percent; even in the US, such spending is 0.6 percent of GDP.
The low level of public funding for child care in Canada is a policy puzzle: despite popular demand and an international consensus around the benefits of child care spending in encouraging female labour market participation, public child care funding across Canada remains extremely low in comparative perspective.
To explain this, researchers have tended to focus on the federal government’s inability to implement a national child care program. From a Quebec perspective, this focus on the federal government is surprising, since there is a broad consensus that early childhood education and child care are within provincial jurisdiction. As shown in figure 1, Quebec’s level of child-care spending is close to the OECD average.
Shouldn’t we instead ask why the other provinces have not developed ambitious public child care programs?
In the 2013-14 budget year, Quebec’s spending on child care was almost five times higher than the average of the other Canadian governments (see figure 2), and Quebec spent more than all other provinces combined. Even after implementation of the recently announced $1 billion in BC, public spending in that province will be 2.5 times lower than in Quebec.
In Quebec, average fees were around $152 per month, compared with $1,210 a month in Ontario and $1,071 in BC in 2013-2014. Not surprisingly, child care use in Quebec is the highest among the provinces.
Our aim in the IRPP study was to explain what makes Quebec so unique in this field. We identify the conditions that led to the adoption and maintenance of Quebec’s public and “universal” child care program, introduced in 1997 by Lucien Bouchard’s Parti Québécois (PQ) government. We argue that the main conditions are (1) a left-of-centre party ready to act as a “protagonist” in initiating a major child-care reform; (2) the absence of a right-wing party ready to act as an “antagonist” and roll back progressive reform; and, (3) a shared understanding across political parties and civil society associations that child care is an exclusive provincial responsibility.
Quebec’s unique party system and interest group dynamics
The presence of a centre-left party in government is a necessary condition for significant public investment in child care. All the significant provincial child care initiatives have been sponsored by centre-left New Democratic Party (NDP) or PQ governments. Ontario’s Liberal government under Kathleen Wynne clearly aims to attract centre-left voters with its pre-election promise. In contrast, centre-right parties generally prefer direct cash transfers to families instead and have tended to cut public spending on child care services once elected.
The polarization of the party system on the left/right scale also matters. In this regard, the Quebec party system is unique, because the dominant political cleavage has traditionally been the federalist/sovereigntist divide. On other issues, PQ governments have been leftist enough to implement major social policy initiatives, and the Quebec Liberal Party (QLP) is rather centrist, especially in contrast to conservative parties (or the BC Liberals) in other provinces. Most important, the QLP did not roll back the PQ’s 1997 child care program when it came to power in 2003.
Party systems in other provinces have either lacked a credible centre-left party (as in Atlantic Canada) or have a strongly competitive right-wing party, which can cut back on child care initiatives once elected. For example, BC’s NDP government under Ujjal Dosanjh proposed a $7-a-day-per-child public child care program in 2001, but the plan was scuttled after the NDP lost the election to the right-leaning Liberal Party later that year. Similarly, it is unclear what will happen to the Premier Wynne’s promised investments if the Progressive Conservative Party (PCP) of Ontario, under Doug Ford, wins the June election.
The political orientations of its interest groups is the final condition that explains why Quebec is such an outlier in the area of child care. Put simply, in Quebec, feminist and left-wing interest groups focus much of their policy representation efforts on the provincial government; they expect their “national” government to deliver major social policy initiatives. In the other provinces, feminist and left-leaning groups tend to focus their efforts on the federal government. This is in part because they believe Ottawa has more fiscal room and because, importantly, they believe that such measures should be “national” in scope and thus led by the federal government.
Limits to public policy diffusion
Our study also sheds light on the influence of one jurisdiction’s policy ─ or the policy’s diffusion ─ across a federal system.
First, such diffusion is less likely to occur when policy-makers’ objectives differ. Greater women’s labour market participation was one of the main objectives of the PQ government when it implemented its child care program. However, this seems to be less important in the debates about child care in many provinces today. Instead, policy-makers tend to focus on the positive impact of child care on children’s cognitive capacities.
Unequal access to child care in Quebec has been identified as a negative aspect of the program: middle class parents tend to use the program more than do low-income families. This argument has limited the influence of Quebec’s policy on the rest of the Canada. However, the argument does not take into account three factors connected to the political dynamics of social policies and of the reality of child care use around the world.
First, the lack of available data on child care across Canada makes it difficult to ascertain if low-income parents have better access to the relatively small number of publicly funded child care spots in other provinces.
Second, international research shows that access to publicly funded child care is unequal in most of the other OECD countries, simply because middle- and upper-income parents have higher labour market participation rates than low-income parents and are thus more likely to use child care.
Third, the view that there has been unequal access to child care in Quebec neglects the political dynamics associated with universal programs. When the middle class is included in a social program, this broadens popular support and makes the program more resistant to cutbacks. Indeed, no political party in Quebec would seriously consider a retrenchment of the popular child care program, precisely because it benefits the large and influential middle class.
In our view, it is especially important for progressive parties in jurisdictions where there are polarized political systems to include the middle class in their child-care reforms, even if it leads to a less egalitarian distribution of the benefits than would an expansion targeted solely at low-income households. If bold child care reforms are in place ─ and they benefit a large segment of the population ─ long enough before the elections in Alberta, BC and Ontario, the Quebec exceptionalism in child care might be short-lived. If not, if a conservative party wins the next election, the child care measures such as those announced recently in those provinces might not survive (or they will be greatly weakened).
Medical assistance in dying has been legal in Canada for nearly two years, but confusion around how to interpret the legislation persists.
When the federal government passed Bill C-14 in June 2016, reactions to the law were immediate and vociferous. Some felt that it was too permissive, while others felt that it was too restrictive. It was widely noted that the meaning of some of the legislation’s key terms and phrases was unclear. Questions were raised about specific terms, such as “intolerable suffering” or “an advanced state of irreversible decline.” Perhaps most controversially, does the “reasonably foreseeable natural death” criterion mean that eligibility is limited to those with fatal conditions or who are “terminally ill” or “at the end of life” or whose death is “in the not too distant future”?
Ongoing uncertainty around these terms is putting Canadians at risk in a number of ways. Too narrow an interpretation could mean people who should have access may be denied MAID; too broad an interpretation could mean some people may be given access who should not. Indeed, two persons in the same circumstances may be treated differently simply because their MAID assessors and providers interpret the law differently.
Other consequences are possible, too. For example, in response to particular interpretations of the law that suggest no other option, some patients may forgo drugs needed for effective pain control and remain in a state of intolerable suffering to keep the necessary level of decision-making capacity to reiterate their request for MAID at the time of administration. In addition, interpretive uncertainty may also raise concerns about potential criminal liability, producing a chilling effect on medical and nurse practitioners’ willingness to provide MAID.
How can we avoid these consequences? Once a piece of legislation is in force, only the courts can definitively interpret it. Unfortunately, seeking clarification through litigation is prohibitively expensive and time consuming. Few people denied access to MAID because of issues of interpretation would be in a position to seek assistance from the courts.
Until the courts step in with definitive interpretations, there are nevertheless steps that can be taken to mitigate the problems mentioned above. Indeed, in the shorter term, there are instruments and avenues available to reduce uncertainty and confusion among patients and health care providers. We outline some of them in our recent report for the Institute for Research on Public Policy, where we determine the most defensible interpretations of the legislation, using the tools of statutory interpretation supported by the relevant clinical and other forms of expertise.
We call on those who have the responsibility and authority to provide interpretive guidance to health-care practitioners and patients to adopt, endorse and/or disseminate these proposed interpretations in order to build consensus on the meaning of the terms of the legislation. This is a task that concerns governments, directors of public prosecution and attorneys general, professional regulators, health authorities, professional liability protection providers, professional associations and civil society groups.
In particular, we invite Canadians to join us in calling for:
• The Minister of Justice and Attorney General of Canada to publicly state that the proposed interpretations are consistent (or not inconsistent) with the government’s intentions when crafting the legislation.
• The federal government to reflect the proposed interpretations in an update to the glossary that the Department of Justice posted on the internet to accompany the legislation when it was introduced and in the regulations establishing the federal monitoring system.
• The directors of public prosecution and attorneys general in each province and territory to reflect the proposed interpretations in guidelines for the exercise of prosecutorial discretion in the context of MAID.
Although 1,982 Canadians accessed MAID in the legislation’s first year, confusion remains around some of its key terms and clarity is required. Together we must move the public discussion toward a potential consensus. It is time for those who can help to clarify the meanings to do so.
Jocelyn Downie is a professor at the Schulich School of Law, Faculty of Medicine, and Health Law Institute at Dalhousie University. Jennifer Chandler is a professor in the Centre for Health Law, Policy and Ethics at the Faculty of Law at the University of Ottawa.
Northwest Territories Premier Bob McLeod issued a “red alert” in November, calling for a national debate on the NWT’s future. “The promise of the North is fading,” he wrote, “and the dreams of northerners are dying as we see the re-emergence of colonialism.”
A earlier, the federal government caused an uproar among territorial politicians when it announced a moratorium on oil and gas exploration in the Arctic. The premiers of the NWT and Nunavut immediately denounced the decision, arguing that the federal government was foreclosing future economic development in their territories. The NWT had only recently gained control of its public land and resources, while negotiations between Ottawa and Nunavut remain ongoing. Months of hand wringing culminated in McLeod issuing his red alert and heading to Ottawa for a press tour with Canada’s national news networks.
McLeod’s statements may serve as a useful rhetorical cudgel, but it obscures hard-won institutional innovations by Indigenous peoples that make the NWT a leader in intergovernmental relations.
In a recently published IRPP Study, I argue that a federation within a federation is emerging in the NWT by the formalization of intergovernmental relations between its public and Indigenous governments. This system is not only innovative but wholly unique. Moreover, it reflects the flexibility of Canada’s federal model and its capacity to recognize diverse nations within its borders.
There is a decades-long history in Northern Canada of settler governments, politicians, editorial writers and activists describing their relationship with Ottawa in colonial terms. Paradoxically, they often did this while resisting northern Indigenous peoples’ struggle for self-determination and the pursuit of modern treaties. Writing in the 1950s, the historian L.H. Thomson called Ottawa’s treatment of the prairie provinces and northern territories an “imperial-colonial relationship.” Newspaper editorials in the 1960s and 1970s regularly vilified the federal government for its control of territorial political and economic life.
Into the 2000s, territorial officials used the language of colonialism to describe the political situation of their governments. For example, following the devolution of land and resource management to Yukon in 2003, Premier Dennis Fentie declared that after “years of negotiation, we are finally masters in our own house.”
Of course, the colonialism decried in this framing is not the colonialism experienced by the North’s Indigenous peoples — that is, a colonialism rooted in Indigenous displacement, dispossession and marginalization. Instead, territorial leaders’ “colonial” experience relates to their inability to access the natural resources under their feet.
Who governs?
The government of the Northwest Territories (GNWT) has had predominantly Indigenous leadership since the 1970s. This has not prevented antagonistic relationships from developing between the GNWT and the territory’s Dene, Métis and Inuvialuit peoples.
The Premier argues that it should be his “democratically elected government” that sets the political, economic and environmental priorities of the territory. In an interview with the CBC, he stated that 52 percent of the territory was protected and could not be accessed for development — a situation exacerbated by the federal moratorium — but he later clarified upon questioning that it was only 43 percent of the NWT that was “currently unavailable to the GNWT for development.”
In making his argument, however, McLeod lumped together protected lands with those of Indigenous peoples that were secured through the settlement of land claims.
Indigenous governments balked at the suggestion that their lands were closed to development because they fell outside the control of the GNWT. As the Tłı̨chǫ government reminded the Premier, the exercise of its “jurisdiction is not a ‘re-emergence of colonialism’…but represents decisions that are being made by Tłı̨chǫ, for Tłı̨chǫ, now and into the future.”
Indigenous governments in the NWT have been created through modern treaties. They are constitutionally protected governments under section 35 of the 1982 Constitution Act, and they enjoy shared and overlapping jurisdiction with the GNWT. As a result, a complex system of multilevel governance is emerging in the territory: a political, constitutional and administrative reality that requires new forms of cooperation and coordination among governments.
A federation within a federation
Mechanisms already exist within the territory to enable this kind of collaboration. Through the devolution process, Indigenous governments and the GNWT created institutions with executive, fiscal and regulatory functions to mediate and regularize intergovernmental relations in the territory. This includes the Intergovernmental Council of the NWT and an agreement to share resource revenues stemming from development.
While it is too early to measure the success of these measures, there are nonetheless some hopeful signs. Under the fiscal sharing agreement, the GNWT has distributed over $20 million to Indigenous governments over the past three years. Indigenous and public government leaders meet annually through the Intergovernmental Council, and a permanent secretariat has been created to support ongoing intergovernmental cooperation through bureaucratic-level working groups.
Indeed, the Premier’s recent comments obscure what is unfolding in the territory. It is not a return to colonialism. Rather, with continuing political will and cooperation, institutional changes such as those mentioned here will help advance decolonization and reconciliation between Indigenous people and settler Canadians.
Jerald Sabin is a Social Sciences and Humanities Research Council Postdoctoral Fellow in the Department of Political Science at Western University and a research associate with the Carleton Centre for Community Innovation at Carleton University.
On June 30, the Trudeau government quietly released its highly anticipated approach to revamping the federal environmental assessment process. Expectations were high following the recommendations of the government-appointed expert panel. Sadly, the Liberal government opted for the status quo over innovative change.
Nowhere is this more evident than in the proposed approach to indigenous peoples’ role in the process. Despite what appears to be some generous language (Indigenous peoples will continue to be “consulted” and their rights and interests “considered.”) and some tweaking at the margins, this essentially means business as usual.
The problem is that the status quo doesn’t work. Indigenous peoples legitimately expect more than mere consultation and consideration. When their rights and traditional territories are at stake, they expect to be decision-makers. Controversies over the Energy East, Northern Gateway and Trans Mountain pipelines, as well as many other major development projects across Canada, suggest ignoring indigenous claims for a greater say in the decision-making process can be costly. The resulting litigation process costs time and money, and ultimately contributes to the growing cynicism over Canada’s true commitment to political reconciliation with indigenous peoples.
In May 2016, Canada declared its full endorsement of the UN Declaration on the Rights of Indigenous Peoples, including the principle of indigenous free, prior and informed consent when projects affect their lands and communities. The Truth and Reconciliation Commission considers the UN declaration a cornerstone of reconciliation. Indigenous peoples rightly expect the government to follow through on its commitment to start taking the principle of indigenous consent seriously.
The proposed environmental assessment reform does mention the UN declaration, but it adopts a highly restrictive approach to consent. Resource-project proponents would only be required to “seek” indigenous consent through consultation, but not necessarily obtain it. The fear of a so-called “indigenous veto” motivates this convoluted approach to Canada’s international commitment.
We believe there is a better way. On the surface, achieving consent may indeed appear synonymous with granting a party veto power. But there’s a difference. A veto is when one party unilaterally rejects a project or policy. Consent, on the other hand, is achieved when parties mutually agree on a direction after a common deliberation process.
Our recent paper on the subject, published by the Institute for Research on Public Policy, calls for a two-pronged approach to implementing free, prior and informed consent in Canada. First, indigenous peoples should be recognized as full and equal governing partners in the decision-making process affecting their traditional lands. Second, communities should be able to express their consent through a mutually agreed upon impact assessment process that focuses on community concerns and is respectful of indigenous world views, and legal and political traditions.
The federal government could look at existing indigenous initiatives for inspiration. For example, the Squamish Nation in B.C. is shaping a new community-driven approach to impact assessment that focuses on indigenous rights and traditional land use. In 2014, they signed a deal with Woodfibre LNG that recognized the community’s own review process and decision-making authority on the project.
Ultimately, taking free, prior and informed consent seriously makes political and economic sense. It forces project proponents and regulatory agencies to be more responsive to the concerns of the local population, leading to projects that are more likely to be environmentally and socially sustainable. It can also foster locally grounded economic development in partnership with indigenous communities and help further the important national objective of advancing reconciliation.
Martin Papillon is an associate professor in the department of political science, Université de Montréal and Thierry Rodon is an associate professor in the political science department at Université Laval. They’re the authors of Indigenous Consent and Natural Resource Extraction: Foundations for a Made-in-Canada Approach, published by the Institute for Research on Public Policy (irpp.org).
For many of us, Canada’s centenary celebrations seem like they happened yesterday. How did 50 years go by so quickly? As we prepare for our 150th anniversary, the demographic reality is that there are now more seniors than school-aged children in our population. Twenty-five years from now, one-quarter of us will be collecting old age security.
Although this has predictable implications for the economy and health care costs, we face another challenge: for decades we have been building car-dependent suburbs where residents have to drive or be driven to work, school or shopping. This worked well for growing families, but as people age and become less mobile, many lose the ability to drive or afford a car. When grocery stores, medical facilities and community centres are too far away to reach on foot, seniors without a car become less active and are at risk of becoming isolated. Forecasts suggest that by 2036, more than 40 per cent of people living in car-dependent suburbs surrounding Toronto will no longer have a driver’s licence.
What can be done to solve this problem? The good news is that hundreds of Canadian municipalities have signed on to become “age-friendly,” a concept introduced in Canada as a World Health Organization pilot a decade ago. In Ontario, nearly all of the province’s largest cities have declared their intention to become age-friendly. Some, such as Ottawa, Toronto, London and Hamilton, with support from the Ontario Seniors Secretariat (now the Ministry of Seniors Affairs), have already earned the WHO’s coveted age-friendly designation. But this recognition is renewable every three years and entails more than the relatively minor improvements (such as more park benches, better lighting and signage) we have seen so far. Cities can’t rest on their laurels.
One of the critical areas for improvement is to make the connection between “age-friendly” and land-use planning. Research by the Canadian Urban Institute finds that none of the larger Ontario cities pursuing the path to become age friendly has yet taken the basic step of amending its official plans to reflect that commitment.
Research confirms that most of us want to age at home, in familiar surroundings, where we have friends and know our neighbours. But unless there are “push factors” such as ill health, or “pull factors” such as the desire to move to more vibrant surroundings, most of us stay put. This inertia is exacerbated in low-density suburbs filled with single detached housing because these places offer few housing options for anyone looking to move.
In a publication just released by the Institute for Research on Public Policy, I detail the following opportunities:
A British gerontologist once stated, “Design for the young and you exclude the old; design for the old and you include everybody.” There are many reasons to build on the progress being made to create age-friendly communities. Preserving quality of life for seniors living in Canada’s suburbs seems like a good place to start.
Glenn Miller is a senior associate with the Canadian Urban Institute in Toronto. In addition to leading the CUI’s research on aging issues, he is a member of the City of Toronto’s Seniors Accountability Table.
