Because the Federal Government and the Provincial Governments of Canada have allowed the Constitution‘s separation of powers outlined in Section 92 of the BNA Act to be blurred —disfigured.
Section 92(7) outlines exclusive jurisdiction over health to be provincial.
But since the Introduction of the Canada Health Act the Federal Government with the agreement of the provinces has been playing a larger and larger role in helping to finance health care across the country, so much so that the provinces are heavily dependent now on that federal money. This past year the federal health transfers to all the provinces totalled $45 billion, up from $30 billion in 2013-2014. Just the other day the Premier of the Province of BC, one of the wealthier Provinces, was begging for more Federal Health dollars. Quebec received over $10 billion this year in federal health transfers. Even wealthy Ontario, Alberta and BC received $16 billion, $5 billion, and $6 billion respectively this year.
The general formula for amending the Constitution is the agreement of the federal government (House of Commons and Senate) and 7 Provinces (Legislative Assemblies) representing 50% of the population—Section 38, Constitution Act of 1982.
Given that there are 5 Provinces that also depend on extra federal financing called Equalization and that this is protected by the existing Constitution (Section 36(2) of the Constitution Act 1982) there is not the numbers to see the amending formula be operational under the formula cited. There is an incentive to keep the status quo because it serves the provinces to not raise their own taxes but call out for more federal dollars, even though exclusive jurisdiction lies with the provinces.
Add to that the growing federal dollars to post secondary education, and social services in the Provinces (from $12 billion to $15 billion in 9 years) and you have a a whopping Federal presence in these other areas as well, largely provincial under the Constitution.
So like the judiciary, the governments have been changing the nature and structure of the country for many years without a shot being fired or a constitutional amendment being enacted.
All federal transfers to the provinces (and territories) have grown from $62 billion in 2013-14 to $87 billion in 2022-23.
That’s why I have consistently argued for more massive citizen engagement to influence the courts to interpret the Constitution we have, as written, its plain meaning—and to reassert the legitimate role of Parliament, Federal and Provincial, the integrity of Parliament and those elected, to decrease the illegitimate power that First Ministers have stolen, to re-establish integrity in political parties, all part of my Magna Carta outlined here, and in public speeches I have given.
Unless we do, the steady drip, drip of the erosion of freedom will erupt into an avalanche, disfiguring our country from what was to be a reasonable example of democratic federalism.
The Honourable A. Brian Peckford P.C. is the last living First Minister who helped craft the charter and Chairman of ‘Taking Back Our Freedoms ‘