Constitutionality Of Proposed Canadian Housing Legislation On Federal/Provincial Division Of Powers

You will be provided with a social policy problem and a proposal (pls. refer to attached file) by the Canadian federal government to enact legislation to deal with this problem. Your task, is provide a brief paper that advises the Government of Canada on the constitutionality of its proposed legislation concerning yourself only with grounds relating to the federal/provincial division of powers and not with any Charter-related issues. 

The Requirement for Low-Income Units in New Constructions

According to Canadian Observatory Homelessness (2017), housing policy refers to the government actions, including program and legislation delivery, which possess indirect or direct effect on housing availability and supply, urban planning and housing standards. The legislation affects the tax policies, resource allocation, house affordability and prices in addition to the availability of enough rental housing supply. The policies can lead to social housing investment, tax policies to motivate the private sector to construct additional houses and optional housing types. The government of Canada, (2018) observes that in Canada, the housing policy responsibility is shared by 3 levels of the government; hence, the nation does not have a powerful pan-Canadian strategy for housing. Additionally, the housing policy poses a direct influence on the homelessness due to the availability of affordable and safe housing remain the key to making sure that individuals, living in poverty can maintain and access shelter. Therefore, the essay provides advice to the Government of Canada on the constitutionality of its suggested housing policy.  

Hulchanski, (2002) claim that the government has set out various measures to start dealing with the housing issues including homelessness. Some of the measures entail a requirement that people searching for approval to construct new buildings must offer a percentage of low-income units in the constructions and legislative provisions that maintain the rents in the low-income units. Another measure includes expansion in the federal finds utilization to subsidize directly the building of low-income housing. More so, the government proposes an amendment to the Canadian Health Act to dictate provinces to offer a number of programs for mentally ill people and hospital beds as a condition for federal funding to the provincial schemes for health insurance.

The requirement that people searching for approval to construct new buildings must offer a percentage of low-income units in the constructions and legislative provisions that maintain the rents in the low-income units

According to CanLII (1988), in the  R. v. Crown Zellerbach Canada Ltd in dumping wood waste in Beaver Cove waters by the respondents, the provincial court judge dismissed the case as well as the appeal if the case and the Court of Appeal and trial judge stated that s. 4 (1) of the Ocean Dumping Act remained ultra vires Parliament. The appeal was meant to define whether the s. 4 (1) remained constitutional in its implementation to waste dumping in the fresh waters within provinces. Hulchanski, (2002) claim that every province in Canadpossessesss their regulations that determine the manner in which they operate.

An Amendment to the Canadian Health Act for Mentally Ill Citizens

Young & Leuprecht, (2004) state that the founding document in Canada, the 1867 British North America Act or the 1867 Constitution Act fails to mention housing because traditionally, housing remained an individual concern. Ministry of Municipal Affairs and Housing, (2011) argues that the constitution passed the “civil rights and property in the province” to the jurisdiction of the provinces including land utilization and ownership. The power provides the provinces the role for tenant protection and rent regulation issues. The Section ninety-one of the constitution gives residual power to the federal authorities.  

The government of Canada, (2018) states that the role remains relevant where housing interfaces associated with wider territorial and provincial responsibility in education, justice, social services, and health. More so, Tolley & Young, (2001) note that the territories and provinces acknowledge the unique role of the federal government in housing, including taxation, lending programs, and mortgage insurance as well as the promotion of new technologies and innovations and transfer of knowledge. Therefore, the principles and civil rights and property allow the governments to ensure the requirement that people searching for approval to construct new buildings must offer a percentage of low-income units in the constructions and legislative provisions that maintain the rents in the low-income units.

An amendment to the Canadian Health Act to dictate provinces to offer a number of programs for mentally ill people and hospital beds as a condition for federal funding to the provincial schemes for health insurance.

CanLII, (1993) observes that in a case “R. v. Morgentaler, [1993],” the Nova Scotia government had passed laws restricting abortion performance at any place apart from hospitals and policy that denied medical service insurance the abortion carried out away from hospitals. The government revoked the policies and implemented the Medical Services Designation Regulation and Medical Services Act that provided similar restrictions. The respondents started a clinic and initiated operations despite the regulations and were charged with fourteen abortions as he had violated the Act. The judge claimed that the policy remained ultra vires as it remained in the substance, criminal legislation and acquitted the person.

Health Canada, (2016) argues that the Canada Health Act entails the Government of Canada legislation implemented in 1984 and provides information on the criteria and conditions with which the territorial and provincial health insurance projects must comply to attain federal transfer money under the Canada Health Transfer. The government of Canada, (2018)  states that the act claims that "the main goal of the Canadian health care legislation include promotion, protection, and restoration of the mental and physical well-being of Canadian citizens as well as to facilitate the reasonable availability of health care services without any barriers, including financial barriers.” The term insured services in the CHA has introduced a debate because it's restricted to the care provided in health care facilities and by physicians. However, currently, care has shifted from health care facilities to homes and the community is shifting beyond the Acts terms.

Federal/Provincial Division of Powers

Young & Leuprecht, (2004) argue that in Canada, the health care constitutional rule rests mainly with the territorial and provincial governments. Every territory and province in Canada possess publicly funded and administered health care system that offers universal medical access related to health care and hospital services to its residents. The Canadian government remains committed to dealing with mental health problems among the citizens and has funded the Mental Health Commission of Canada to create the first mental health program for Canada. The Canadian government recommends the territorial and provincial government to review, revise and update legislations across sectors and jurisdictions to attain alignment with the UN Convention on the Rights of Persons with Disabilities.

The government of Canada, (2018) claim that the Mental Health Commission of Canada and the Law Advisory Committee has agreed with the initial phase utilized to assess the degree to which the current mental health legislation, policies and standards remain aligned with the UN Convention on the Rights of Persons with Disabilities. Tolley & Young, (2001) claim that the development of the new Health Accord must ensure high-quality mental health services remain accessible to all Canadians in need of them. Therefore, it remains possible for the Canadian federal government to transform the Canadian Health Act and dictate to provinces to offer various hospital programs and beds for the mentally sick people as a federal finding condition to provincial health insurance programs to ensure that the mentally ill citizens in Canada are covered in the Canadian Health Act.

Expansion in the federal finds utilization to subsidize directly the building of low-income housing

CanLII, (2004) in the case “Canada Mortgage and Housing Corp. v. Iness, 2004” states that the interjurisdictional immunity provides protection to the exclusive power of federal from provincial policies or regulations. Whenever a provincial policy impacts the federal power exercise, the valid provincial legislation should be read down to prevent it from applying to the federal power exercise. The interjurisdictional immunity remains evident in the exclusive authority of the parliament to spend its money the way it does in federal spending power. Therefore, in the case, the Human Rights Code should read down to prevent it from applying to the s. 2(9) of the Canada Mortgage and Housing Corporation or Operating Agreement.

Hulchanski, (2002) claims that at the beginning of the 1980s, the federal cash transfers to territories and provinces started reducing making it challenging for the territories and provinces to obtain the federal cuts in spending in the social housing. The elimination of the housing supply system led to the municipalities and provinces to bear the burden of homelessness and insufficient housing, including mental and physical healthcare costs, policing and emergency services and shelters. Young & Leuprecht, (2004) argue that there remains no constitutional or legal constraint that determines the provincial and federal role in housing. The federal government continues to participate in various housing programs and the jurisdiction issue remains significant because the politicians introduce it when they feel that their level does not remain responsible for handling the housing issue.

Conclusion

Shapcott, (2007) states that in the year 2004 and the year 2005, the federal government allocated the municipal and housing infrastructure new funds. Despite the political pressures, the government continues the federal government continues to initiate the urban and housing affairs without interference from the jurisdiction. Additionally, Shapcott, (2007) says that the federal authorities will view every territory and province as its key elderly partner on current and new federal housing funding via a bilateral agreement. They must respect the unique connection and the fiduciary role that Canada possesses with Inuit individuals, Metis, and First Nations.  The territories and the federal government met and acknowledged that there remains a need for additional housing, marketing housing and aided home ownership. However, the housing ministers failed to meet the 2005 promises.

Shapcott, (2007) states that the territorial, provincial and federal authorities must renew their public funding commitments for housing and sustainable, predictable, and enough funding to the territories and provinces remain significant housing initiatives to deliver long-term results. The federal funding must acknowledge unique jurisdiction needs and housing starts in Canada.

The federal authorities must accept programs funded directly by territories and provinces as cost sharing contributions to housing federation initiatives and the funding must be offered directly to territories and provinces. Tolley & Young, (2001) say that the federal government must involve the territories and provinces in funding decisions for housing programs. All the principles and legislation must not deviate from the jurisdictions from the government. Therefore, the federal government must consider the principles with the aim of expanding the federal funds' utilization to subsidize directly the building of low-income housing and ensure construction of additional and affordable homes.

In conclusion, the federal government, territories and the provinces must acknowledge that the initiatives that react to the demonstrated and determined needs provide the most desired results. Attaining effectiveness requires respect and cooperation for each other’s responsibilities and roles and insight of funding connections. They must implement the 2005 principles to attain positive results. They must share roles to ensure that the residents possess a decent and safe place to live and the housing initiatives must provide support and enhance self-reliance in individual development as well as the community. The nation requires programs that respond to the distinct needs of people enclosing housing supply, mortgage insurance, housing regulations, health, financial, and affordability as well as shelter services. It remains critical for the government at territorial, federal and provincial levels must recognize the need for enough housing for all the people living in Canada and must have equal and fair housing projects

References

CanLII. (1988). R. v. Crown Zellerbach Canada Ltd., [1988] 1 SCR 401, 1988 CanLII 63 (SCC). Retrieved from Federation of Law Societies of Canada: https://www.canlii.org/en/ca/scc/doc/1988/1988canlii63/1988canlii63.html?searchUrlHash=AAAAAQAVcmVudCByZWd1bGF0aW9uIGNhc2VzAAA

CanLII. (1993). R. v. Morgentaler, [1993] 3 SCR 463, 1993 CanLII 74 (SCC). Retrieved from Federation of Law Societies of Canada: https://www.canlii.org/en/ca/scc/doc/1993/1993canlii74/1993canlii74.html

CanLII. (2004). Canada Mortgage and Housing Corp. v. Iness, 2004 CanLII 15104 (ON CA). Retrieved from Federation of Law Societies of Canada: https://www.canlii.org/en/on/onca/doc/2004/2004canlii15104/2004canlii15104.html?searchUrlHash=AAAAAQAUZmVkZXJhbGlzbSAmIGhvdXNpbmcAAAAAAQ&resultIndex=2

CanLII. (2004). Reference re Same-Sex Marriage, [2004] 3 SCR 698, 2004 SCC 79 (CanLII). Retrieved from Federal of Law Societies of Canada: https://www.canlii.org/en/ca/scc/doc/2004/2004scc79/2004scc79.html

The government of Canada. (2018). Canada Health Act Annual Report 2016-2017. Retrieved from Government of Canada: https://www.canada.ca/en/health-canada/services/publications/health-system-services/canada-health-act-annual-report-2016-2017.html

Health Canada. (2016). Canada Health Act. Retrieved from Health Canada.: https://www.canada.ca/content/dam/hc-sc/documents/services/publications/health-system-services/canada-health-act-annual-report-2015-2016.pdf

Homeless Hub. (2018). Canada-National Strategies to Address Homelessness. Retrieved from Homeless Hub: https://homelesshub.ca/solutions/national-strategies/canada

Hulchanski, D. (2002). Housing Policy for Tomorrow’s Cities. Retrieved from Canadian Policy Research Networks: https://www.urbancentre.utoronto.ca/pdfs/researchassociates/Hulchanski_Housing-Policy-C.pdf

Ministry of Municipal Affairs and Housing. (2011). Municipal Tools for Affordable Housing. Retrieved from Ministry of Municipal Affairs and Housing: https://www.mah.gov.on.ca/AssetFactory.aspx?did=9270

Shapcott, M. (2007). The Things You Should Know About Housing and Homelessness. Retrieved from Wellesley Institute: https://www.wellesleyinstitute.com/wp-content/uploads/2011/11/wimiloon2007_0.pdf

Tolley, E., & Young, W. (2001). Municipalities, The Constitution and the Canadian Federal System. Retrieved from https://publications.gc.ca/Collection-R/LoPBdP/BP/bp276-e.htm

Young, R., & Leuprecht, C. (2004). Municipal-Federal-Provincial Relations in Canada. Retrieved from McGill-Queen’s University Press: https://post.queensu.ca/~leuprech/docs/edited/Young_Leuprecht_2006_The%20State%20of%20the%20Federation_Municipal-Federal-Provincial%20Relations.pd