Healthcare for Refugees: The Scope of the Prerogative
Last week’s Federal Court ruling in Canadian Doctors for Refugee Care v. Canada, 2014 FC 651 that cuts to refugee healthcare were “cruel and unusual” punishment [ed: treatment, not punishment] that violated the Charter has understandably created a great deal of noise. The case will go on appeal, possibly to the Supreme Court of Canada. Buried beneath the heat and light of the Charter finding is a potentially explosive issue relating to the scope of the power to spend without express statutory authorization.
Mactavish J. concluded that the funding (and consequently the defunding of the healthcare programme for refugees) was intra vires the federal executive. First of all, no statutory authorization was necessary to support the programme given the broad executive authority accorded to the federal executive under the Canadian constitution:
 The Court further noted in Pharmaceutical Manufacturers that “it is not necessary for the government to rely on its traditional prerogative powers in this context: the Crown has the capacities and powers of a natural person and a natural person has the capacity to establish programs for public benefit and to define or restrict the distribution of such benefits”: at para. 27. Moreover, there was nothing in the legislation at issue in that case (the Continuing Care Act) that was incompatible with the Crown’s authority to adopt its own drug pricing policy.
 As Peter Hogg states in Constitutional Law of Canada, 5th ed., at 1-19, “[s]ometimes, the term ‘prerogative’ is used loosely, in a wider sense, as encompassing all the powers of the Crown that flow from the common law.” He further notes that “[n]othing practical now turns on the distinction between the Crown’s ‘true prerogative’ powers and the Crown’s natural-person powers, because the exercise of both kinds of powers is reviewable by the Courts.”
Having not been ousted by clear statutory language, “the Crown’s prerogative power to spend in an area not addressed by statute remains intact…” (para. 401).
The reason this is potentially explosive is the recent attention given to executive spending in federal jurisdictions by the High Court of Australia. Consider the following passage from Williams v. Commonwealth of Australia (No. 2),  HCA 23:
What the submissions called “executive power at common law” was executive power as exercised in Britain. Thus the assumption from which the second inquiry (about “limitations”) proceeded was that, absent some “limitation”, the executive power of the Commonwealth is the same as British executive power. But why the executive power of the new federal entity created by the Constitution should be assumed to have the same ambit, or be exercised in the same way and same circumstances, as the power exercised by the Executive of a unitary state having no written constitution was not demonstrated. To make an assumption of that kind, as the arguments of the Commonwealth parties did, begs the question for decision…Consideration of the executive power of the Commonwealth will be assisted by reference to British constitutional history. But the determination of the ambit of the executive power of the Commonwealth cannot begin from a premise that the ambit of that executive power must be the same as the ambit of British executive power.It may be assumed that, as the Commonwealth parties submitted, “what might be described as the inherent or traditional limits on executive power, as they emerged from the historical relationship between Parliament [at Westminster] and the Executive, have not hitherto been treated [in Australia or, for that matter, in Britain] as the source of any general limitation on the ability of the Executive to spend and contract without legislative authority”. But it by no means follows from this observation that the Commonwealth can be assumed to have an executive power to spend and contract which is the same as the power of the British Executive.
The reasoning of the majority distances Commonwealth executive power from British constitutional principles, perhaps consistently with the growing reluctance to employ the language of the Crown in constitutional decisions. Perhaps this signals a new approach to Commonwealth executive power, an approach which is more distinctively Australian and where British constitutional principles and history assume less importance.
Republican sentiment is much stronger in Australia than it is in Canada, of course. In the recent citizenship oath case (McAteer et al. v. Attorney General of Canada, 2013 ONSC 5895), Morgan J. dismissed the challenge, commenting along the way: “Whatever problems the Applicants think are associated with the monarchy, it is not irrational for Parliament to have selected a figure that has been throughout the country’s history, and continues to be until the present day, a fixture of its constitutional structure” (at para. 46).
But the questions raised in this case go beyond the status of the monarchy to the juridical nature of the Crown in a modern liberal democracy. Can major schemes be funded without express parliamentary authorization? Is it enough that the executive is generally accountable to Parliament for exercises of executive authority? Does it matter that healthcare is a provincial responsibility; might statutory authorization be required in order to ensure that the federal executive remains within constitutional bounds? The High Court of Australia has in large part begun painting a new canvas in its recent decisions. It will be interesting to see whether the Canadian courts take up their brushes.
See my related posts on the “third source” of government authority.
This content has been updated on July 11, 2014 at 19:41.