NDP offers Quebec alone right to opt out of federally-funded programs

An NDP government would allow Quebec — but no other province — to opt out of new federally funded social programs and receive its share of the money with no strings attached.
NDP Leader Tom Mulcair addresses supporters during a campaign stop in Montreal on Thursday, Oct. 1, 2015. (Andrew Vaughan/Canadian Press)

An NDP government would allow Quebec — but no other province — to opt out of new federally funded social programs and receive its share of the money with no strings attached.

The policy reflects the NDP's full embrace of asymmetrical federalism and is a marked departure from the approach taken by Conservative and Liberal governments, which have generally been careful to give all provinces the ability to opt out, even if Quebec was typically the only one to take up the offer.

NDP Leader Tom Mulcair has confirmed that the policy would apply to his promises to boost funding to the provinces for health-care initiatives, including creation of a national prescription drug plan.

But that could be a recipe for conflict with the other provinces. Already, Ontario is signalling that it would demand equal treatment.

"We welcome new health-care investment," said a spokesperson for Premier Kathleen Wynne's office. "We would expect that the same rules apply to all provinces."

The issue first came up in last week's French-language leaders' debate when Bloc Quebecois Leader Gilles Duceppe pressed Mulcair to explain whether he intended to make his promises of new health funding conditional on provinces accepting his health-care priorities.

"When it comes to Quebec: a right to opt out; full compensation; no conditions," Mulcair responded.

On Thursday, Mulcair did not directly answer when asked if other provinces would have the same right to opt out.

He referred instead to the Sherbrooke Declaration, the NDP's 10-year-old policy on Quebec, noting that it spells out that "when it's a federal expenditure in an area of exclusive (provincial) jurisdiction, Quebec would be allowed to opt out."

The declaration's embrace of asymmetrical federalism was intended to lay to rest one of the most divisive issues of the past — one which Mulcair said had led many Quebecers to conclude the only solution "was to break apart this extraordinarily successful, wonderful country that is Canada."

While Quebec could unconditionally opt out and take the money from the NDP's promises to create a drug program, boost home care and hire more doctors, Mulcair said the basic principles of the Canada Health Act, to which Quebec has signed on, would continue to apply. The act stipulates that federal health transfers to the provinces are conditional on the health system being universal, publicly administered, comprehensive, accessible and portable.

Under the terms of the Sherbrooke Declaration, the opt-out policy would also apply to the NDP's promised national, $15-a-day child-care program, and other social program initiatives. Mulcair has said, however, that his child-care program would be flexible, taking into account different programs already offered by each of the provinces.

Senior campaign adviser Brad Lavigne confirmed that the opting-out policy applies only to Quebec.

"If the provinces agree to the creation of a national program in an area of provincial jurisdiction, Quebec would be the only province that is able to opt out ... with compensation under Sherbrooke," Lavigne said an email.

He did not respond when asked why other provinces aren't entitled to the same treatment.

The Sherbrooke Declaration touts asymmetrical federalism as "the best way to consolidate the Canadian federal state with the reality of Quebec's national character" and the province's challenge of "preserving the French fact in America."

"This asymmetry vis-a-vis Quebec can be applied in real terms through opting-out with compensation. The right to opt out applies where the federal government, on its own or with the agreement of the provinces, intervenes in areas of exclusive provincial jurisdiction (in particular health and social services, education, family policy, housing, municipal infrastructure, etc.) In such case, no conditions or standards should be applied to Quebec without its consent, obtained after consultation and negotiation."

Keith Banting, a Queens University political scientist and social policy expert, said the "calculated ambiguity"of the declaration's wording raises the possibility that the opt-out policy is meant to apply to all manner of federal social policy initiatives, including direct federal transfers to individuals like the universal child-care benefit. That would be a big change that would court "intense controversy," he said.

In the past, efforts to resolve the issue have centred strictly on programs whose cost is shared by the federal and provincial governments and they've attempted equal treatment for all provinces.

The failed Meech Lake and Charlottetown constitutional accords in the early 1990s proposed to give all provinces the right to opt out of cost-shared programs, provided they spent their federal share of the money on programs of their own with comparable objectives. Critics of the accords feared that would result in a patchwork quilt of social programs across the country, with no national standards.

In the 1999 Social Union Framework Agreement, which remains in force although Quebec never signed it, the federal government agreed it wouldn't use its spending power to create new shared-cost programs without the consent of a majority of the provinces and that dissenting provinces could opt out with compensation, provided they established equivalent or comparable programs.

In 2004, the federal government and provinces negotiated a 10-year health funding accord, in which the federal cash was tied to provincial agreement to meet certain reform targets, including reduction of hospital wait times. Quebec insisted on a separate agreement adapted to the province's "specificity," although it accepted the overall principles and objectives of the accord.

While that was hailed or criticized by some as asymmetrical federalism, the targets ended up being unenforceable so Quebec's separate agreement was largely symbolic.

There has been the odd exception over the years, but generally Banting said: "Intergovernmental relations have functioned okay with asymmetry if the same offer (to opt out) is made to other provinces," whether or not they take it up.

Cutting separate deals for Quebec alone has led to trouble, he said, pointing to the Canada-Quebec immigration accord, under which only Quebec gets a say in the selection of immigrants and a disproportionate share of funding for settlement services. Ontario, which receives the lion's share of newcomers, has strenuously objected that it has not been offered a similar deal.