Federal Government Colludes With Courts Against Provincial Funding Decision

By relying on an obscure, 40-year-old sociological theory of institutional completeness and the Supreme Court’s entirely unprecedented use of unwritten constitutional principles in the 1998 Quebec Secession Reference, the landmark decision found it unconstitutional to reduce the services offered by the unilingually French hospital. This open new doors for minority rights litigation and could tie the hands of provincial policymakers committed to streamlining government services.

According to the court, the Harris government’s Health Restructuring Commission erred in proceeding on a mandate to restructure health services without accounting for the “broader institutional role” played by the Montfort Hospital. The Commission’s attempt to compensate with bilingual services elsewhere was inadequate. As the lower court described it: In a minority setting, bilingualism risks becoming the first stage of assimilation for the minority bilingual group. In fact, bilingual institutions turn out to be engines of assimilation.

Other provincial governments should take careful note. Unless the Ontario government successfully appeals the decision in the Supreme Court of Canada, Montfort can’t be closed or downsized for any reason – certainly nothing as obvious as improving the quality of health services. Instead, the government must continue to support Montfort as a cultural institution crucial to the survival of Ontario’s minority francophone community.

The implications of this decision are enormous. If hospitals, which deal chiefly with ill and injured bodies, are considered constitutionally protected cultural institutions exempt from a fiscally-minded government’s restructuring or cost-cutting programs, what other institutions could possibly be exempt?

For instance, are minorities – whether cultural or linguistic minorities, gays, or aboriginals – entitled to funding for their own post-secondary institutions? Could it also be argued that remote areas are constitutionally entitled to their local CBC programming in order to protect a distinct rural community perspective? The Montfort hospital’s lawyers have already applied their arguments to a case now pending before the Quebec Court of Appeal, challenging the decision by the government of Quebec to merge the towns around Montreal into a new mega-city.

While the Ontario court did not go quite so far as to create a positive duty for governments actually to create institutions, it did transfer a whole range of funding and policy decisions from the democratic process to the courts.

The introduction of the Canadian Charter of Rights and Freedoms in 1982 is often cited as having revolutionized minority rights litigation by entrenching special rights (such as minority language and education rights) and recognizing analogous rights (such as gay rights, and the rights of non-citizens).

The Montfort case represents an even more radical departure. The decision signals that courts can ignore the text of the Constitution altogether, and simply rely on their own particular historical understandings of unwritten principles when assessing the constitutional demands forwarded by ivory tower academics, interest groups, or even other levels of government.

The potential for federal intervention in provincial affairs should not be dismissed lightly. Ever since Pierre Elliott Trudeau introduced an agenda of constitutional reform that included minority rights provisions aimed at quelling the separatist threat in Quebec, the federal Liberals have not hesitated to use the courts and the Constitution to forward their own “nation-building” efforts. A vision of a “bilingual and bicultural” Canada figured prominently in these efforts.

And so it is not irrelevant that the federal government helped tilt the playing field towards Montfort’s cause (and against the provincial Tories) through direct intervention and funding. Both Canada’s Attorney General and the Commissioner of Official Languages supported Montfort in court as intervenors, while the pro-Montfort litigants were given at least $75,000 through the federal government’s Court Challenges Program.

In other words, the federal government actively used the courts to intervene in Ontario’s hospital restructuring program. It would not be without precedent, then, for the feds to use their financial and institutional resources to interfere with health care reforms in Alberta or British Columbia. Just when politicians and the public are finally beginning to recognize the limits of Canada’s health care status quo, the federal government has colluded with the courts to redefine the mandate for a basic social service. By turning a hospital into an essential cultural institution, the Montfort precedent encourages the dangerous tendency of government mission-creep into areas of private life that the Constitution neither mentioned, nor intended.