From the Fraser Institute

By Nadeem Esmail, Mackenzie Moir and Lauren Asaad

In October, Alberta’s provincial government announced forthcoming legislative changes that will allow patients to pay out-of-pocket for any diagnostic test they want, and without a physician referral. The policy, according to the Smith government, is designed to help improve the availability of preventative care and increase testing capacity by attracting additional private sector investment in diagnostic technology and facilities.

Unsurprisingly, the policy has attracted Ottawa’s attention, with discussions now taking place around the details of the proposed changes and whether this proposal is deemed to be in line with the Canada Health Act (CHA) and the federal government’s interpretations. A determination that it is not, will have both political consequences by being labeled “non-compliant” and financial consequences for the province through reductions to its Canada Health Transfer (CHT) in coming years.

This raises an interesting question: While the ultimate decision rests with Ottawa, does the Smith government’s new policy comply with the literal text of the CHA and the revised rules released in written federal interpretations?

According to the CHA, when a patient pays out of pocket for a medically necessary and insured physician or hospital (including diagnostic procedures) service, the federal health minister shall reduce the CHT on a dollar-for-dollar basis matching the amount charged to patients. In 2018, Ottawa introduced the Diagnostic Services Policy (DSP), which clarified that the insured status of a diagnostic service does not change when it’s offered inside a private clinic as opposed to a hospital. As a result, any levying of patient charges for medically necessary diagnostic tests are considered a violation of the CHA.

Ottawa has been no slouch in wielding this new policy, deducting some $76.5 million from transfers to seven provinces in 2023 and another $72.4 million in 2024. Deductions for Alberta, based on Health Canada’s estimates of patient charges, totaled some $34 million over those two years.

Alberta has been paid back some of those dollars under the new Reimbursement Program introduced in 2018, which created a pathway for provinces to be paid back some or all of the transfers previously withheld on a dollar-for-dollar basis by Ottawa for CHA infractions. The Reimbursement Program requires provinces to resolve the circumstances which led to patient charges for medically necessary services, including filing a Reimbursement Action Plan for doing so developed in concert with Health Canada. In total, Alberta was reimbursed $20.5 million after Health Canada determined the provincial government had “successfully” implemented elements of its approved plan.

Perhaps in response to the risk of further deductions, or taking a lesson from the Reimbursement Action Plan accepted by Health Canada, the province has gone out of its way to make clear that these new privately funded scans will be self-referred, that any patient paying for tests privately will be reimbursed if that test reveals a serious or life-threatening condition, and that physician referred tests will continue to be provided within the public system and be given priority in both public and private facilities.

Indeed, the provincial government has stated they do not expect to lose additional federal health care transfers under this new policy, based on their success in arguing back previous deductions.

This is where language matters: Health Canada in their latest CHA annual report specifically states the “medical necessity” of any diagnostic test is “determined when a patient receives a referral or requisition from a medical practitioner.” According to the logic of Ottawa’s own stated policy, an unreferred test should, in theory, be no longer considered one that is medically necessary or needs to be insured and thus could be paid for privately.

It would appear then that allowing private purchase of services not referred by physicians does pass the written standard for CHA compliance, including compliance with the latest federal interpretation for diagnostic services.

But of course, there is no actual certainty here. The federal government of the day maintains sole and final authority for interpretation of the CHA and is free to revise and adjust interpretations at any time it sees fit in response to provincial health policy innovations. So while the letter of the CHA appears to have been met, there is still a very real possibility that Alberta will be found to have violated the Act and its interpretations regardless.

In the end, no one really knows with any certainty if a policy change will be deemed by Ottawa to run afoul of the CHA. On the one hand, the provincial government seems to have set the rules around private purchase deliberately and narrowly to avoid a clear violation of federal requirements as they are currently written. On the other hand, Health Canada’s attention has been aroused and they are now “engaging” with officials from Alberta to “better understand” the new policy, leaving open the possibility that the rules of the game may change once again. And even then, a decision that the policy is permissible today is not permanent and can be reversed by the federal government tomorrow if its interpretive whims shift again.

The sad reality of the provincial-federal health-care relationship in Canada is that it has no fixed rules. Indeed, it may be pointless to ask whether a policy will be CHA compliant before Ottawa decides whether or not it is. But it can be said, at least for now, that the Smith government’s new privately paid diagnostic testing policy appears to have met the currently written standard for CHA compliance.

Nadeem Esmail

Director, Health Policy, Fraser Institute

Mackenzie Moir

Senior Policy Analyst, Fraser Institute

Lauren Asaad

Policy Analyst, Fraser Institute

From LifeSiteNews

By Anthony Murdoch

‘Freedom in Canada is dying slowly and gradually, not by a single fell swoop, but by a thousand cuts,’ wrote John Carpay of the JCCF.

One of Canada’s top constitutional legal experts has warned that freedom in the nation is “dying slowly” because of a host of laws both passed and now proposed by the Liberal federal government of Prime Minister Mark Carney, saying it is “up to citizens” to urge lawmakers to reverse course.

In an opinion piece that was published in the Epoch Times on December 15, John Carpay, who heads the Justice Centre for Constitutional Freedoms (JCCF), gave a bleak outlook on no less than six Liberal laws, which he warned will turn Canada into a “police state.”

“Freedom in Canada is dying slowly and gradually, not by a single fell swoop, but by a thousand cuts,” he wrote.

Carpay gave the example of laws passed in the United Kingdom dealing with freedom of online speech, noting how in Canada “too few Canadians have spoken out against the federal government gradually taking over the internet through a series of bills with innocuous and even laudable titles.”

“How did the United Kingdom end up arresting thousands of its citizens (more than 30 per day) over their Facebook, X, and other social media posts? This Orwellian nightmare was achieved one small step at a time. No single step was deemed worthy of fierce and effective opposition by British citizens,” he warned.

Carpay noted how UK citizens essentially let it happen that their rights were taken away from them via mass “state surveillance.”

He said that in Canada Bill C-11, also known as the Online Streaming Act, passed in 2023, “undermines net neutrality.” Bill C-11 mandates that Big Tech companies pay to publish Canadian content on their platforms. As a result, Meta, the parent company of Facebook and Instagram, blocked all access to news content in Canada.

“The Online Streaming Act undermines net neutrality (all online content being treated equally) and amounts to an aggressive expansion of government control over the internet and media companies. The CRTC now has broad power over what Canadians watch, hear, and access online, deciding what is discoverable, permissible, or even visible,” noted Carpay.

Carpay also warned about two recent bills before the House of Commons: Bill C-2, the Strong Borders Act, Bill C-8, and Bill C-9, as well as the Combating Hate Act.

He cautioned that Bill C-2, as it reads, “authorizes warrantless demands for subscriber data and metadata from online providers.”

“Bill C-2 should be called the Strong Surveillance Act, as it gives sweeping powers to a host of non-police government officials to conduct warrantless searches,” warned Carpay.

He observed how Bill C-2 would grant law enforcement “unprecedented powers to monitor Canadians’ digital activity,” without any “judicial oversight.”

“Any online service provider—including social media and cloud platforms, email domain hosts and even smaller service providers—would be compelled to disclose subscriber information and metadata,” he warned.

When it comes to Bill C-8, or The Critical Cyber Systems Protection Act, Carpay warned that if passed it would “allow government to kick Canadians off the internet.”

“The government’s pretext for the Critical Cyber Systems Protection Act is to ‘modernize’ Canada’s cybersecurity framework and protect it against any threats of ‘interference, manipulation, disruption or degradation,’” wrote Carpay.

“Sadly, it remains entirely unclear whether ‘disinformation’ (as defined by government) would constitute ‘interference, manipulation, disruption or degradation’.”

Lawyer warns new laws ‘grant government unprecedented control’

Bill C-9, the Combating Hate Act, has been blasted by constitutional experts as allowing empowered police and the government to go after those it deems have violated a person’s “feelings” in a “hateful” way.

Carpay, who has warned about this bill and others, noted that when it comes to Bill C-9, it affects Canadians’ right to religious freedom, as it “removes needed protection from religious leaders (and others) who wish to proclaim what their sacred scriptures teach about human sexuality.”

“Marc Miller, Minister of Canadian Identity and Culture, has stated publicly that he views certain Bible and Koran passages as hateful. Bill C-9 would chill free speech, especially on the internet where expression is recorded indefinitely, and particularly for activists, journalists, and other people expressing opinions contrary to government-approved narratives,” he wrote.

“This law also vastly increases the maximum sentences that could be imposed if a judge feels that the offence was ‘motivated by hatred,’ and creates new offences. It prohibits merely displaying certain symbols linked to hate or terrorism in public, and extends criminal liability to peaceful protest activity.”

Carpay said that both C-8 and C-9 together “collectively grant government unprecedented control over online speech, news, streaming services, and digital infrastructure.”

He said that the Liberal federal government is “transforming Canada’s centuries-old traditions of free speech and privacy rights into something revocable at the pleasure of the CRTC, politicians, and bureaucrats,” adding that Canadians need to wake up.

“Laziness and naivete are not valid reasons for failing to rise up (peacefully!) and revolt against all of these bills, which are slowly but surely turning Canada into a police state,” he wrote.

Carpay said that Canadians need to contact their MPs and “demand the immediate repeal of the Online Streaming Act and the Online News Act,” and “reject” the other bills before the House.

When it comes to Bill C-9, as reported by LifeSiteNews, the Canadian Constitution Foundation (CCF) launched a petition demanding that a Liberal government bill that would criminalize parts of the Bible dealing with homosexuality under Canada’s new “hate speech” laws be fully rescinded.

The amendments to Bill C-9 have been condemned by the Canadian Conference of Catholic Bishops, who penned an open letter to the Carney Liberals, blasting the proposed amendment and calling for its removal.