Is monopoly health care legal?

Further to the subject of my detailed earlier post, Liberal Healthcare Duplicity ...

and further to my previous Romanow-related post...

The Jan.10, 2012, National Post editorialized in "Roy Romanow's one-note-tune":

Give Roy Romanow credit for one thing: consistency. For the past decade, the former Saskatchewan premier and head of the 2002 Royal Commission on health care has sung the same tune: The government health monopoly must be preserved at any cost.
Literally, any cost.
Mr. Romanow’s solution to whatever ails medicare — soaring costs, faltering health outcomes, slow uptake of new technologies and medications — is always the same: more federal money. Time and again, Mr. Romanow has stated that the monopoly public-payer system envisioned by those who favour a dogmatic reading of the Canada Health Act is the ideal around which all health policy should be focused.
Next week, the provincial premiers will convene a health-care summit in Victoria. By his own choice, Prime Minister Stephen Harper will not be there. (And given the way these meetings all turn into anti-Ottawa whine-fests, we don’t blame him.) Mr. Romanow is appalled by the PM’s hands-off approach. In an interview with Postmedia News, Mr. Romanow insisted that if the PM does not take an aggressive leadership role in talks about the future of medicare, public health care will weaken, private care will spread and the very fabric of our nation will be imperilled.
Reality check: Canada’s Constitution gives the federal government no role in setting health-care policy. None. For half a century, Ottawa has bought a place at the health-care table only by shipping billions annually to the provinces in the form of health transfers, and then slapping conditions on how the money is spent. In other words, the entire structure of the Canada Health Act — which leftists identify as one of the great pillars of our nation — is essentially based on extortion.
Then-prime minister Paul Martin bought a decade of relative health-care peace in 2004 by agreeing to give the provinces nearly $5-billion more each year through 2014. But with that agreement nearing its end, the old intergovernmental theatrics were beginning to boil once again in late 2011. So last month, federal Finance Minister Jim Flaherty told his provincial counterparts what Ottawa was prepared to pay them annually after the current funding agreement expires: From 2014 to 2017, Ottawa will continue to raise its annual contribution to provincial health budgets by 6%. Thereafter, yearly contributions will rise only by the rate of economic growth and the rise in inflation — currently about 4%. Yet in no year will the provinces receive a rise of less than 3%.
This seems eminently fair to us — generous, in fact — especially since the feds are demanding less say over provincial health policy in return for the extra money they will be shipping the provinces.
This approach is not something new. The reduction in federal demands in return for larger health transfers began in earnest under the Liberals, who averted their eyes from the expansion of private health clinics in the 2000s — especially in Montreal and Vancouver — despite their opposition to the very same type of clinics when they popped up in Alberta during the 1990s. When Mr. Martin signed his decade-long funding agreement with the premiers in 2004, the new money came with few new obligations for the provinces — something (the admirably non-partisan) Mr. Romanow complained about at the time.
But so what if the provinces don’t all offer identical services and delivery models? Let them devise blended public-private systems that work best for their residents or for their budgets — and let provincial governments live with the political consequences of those choices. How does that threaten “national unity”?
It is time for Canada — and particularly for Canadian politicians — to get beyond the notion of health care as national symbol. The universal, government-funded health monopoly has been faltering for decades. Since Mr. Martin increased the provinces’ health transfers, each province has increased the per capita amounts it spends on hospitals, clinics and health workers, but waiting lists have continued to grow. And international rating agencies, such as the Organization for Economic Development and Cooperation continue to rank Canada in the middle of the pack or below in health outcomes, such as survival rates from cancer and heart disease. That’s why people are going to private health clinics, despite their limited range of services.
This is not an argument for an “American-style” system: It should be remembered that every single European country permits private health insurance for those seeking better or faster treatment — even as those nations also provide a baseline of universal government-provided care.
The frozen-in-amber, don’t-change-a-thing attitude of Mr. Romanow is a relic of the 1990s. Canadian health consumers have moved on. And so should he.

Burton H. Kellock responded to the above editorial in "Is our health-care unlawful" (National Post, Jan.12, 2012):

Re: Roy Romanow’s One-Note Tune, editorial, Jan. 10.
I was delighted to read these statements in your editorial: “Canada’s Constitution gives the federal government no role in setting health-care policy. None,” and “the entire structure of this Canada Health Act (the CHA) is essentially based on extortion.”
I assume that is a reference to the fact that the CHA is based on federal/provincial transfer payments, which section 4 of the CHA makes conditional upon the provinces enacting provincial legislation in accordance with “criteria” mandated by Ottawa. These transfers are based upon an entirely fictitious unlimited federal spending power which, to quote section 6.8(a) of Professor Peter Hogg’s text book, Constitutional Law of Canada, “is nowhere explicit in the Constitution Act, 1867.”
In other words, the Canada Health Act is utterly unlawful. I am writing a book which demonstrates that all of the attempts to find legal support from the constitutionality of these transfer payments are not only without any foundation but face insurmountable legal obstacles including the fact that the Fathers of Confederation considered and then rejected the suggestion that the federal government should have any such power.
*

 Looks like McGuinty's local Liberal health-care monopoly-pushers Jim Bradley and Kim Craitor will have some 'splainin' to do about their own despotic single-payer-health-care's systemic failure... ...well, that's only if the local Liberal-friendly 'Wendy Williscraft/Mike Metcalfe' orchestrated Niagara press ever bother to ask them, that is...
*