Law Times

Law Times • augusT 10/17, 2009 eHealth boondoggle is sick theatre t's the summer season at the legislature and the only things moving with any purpose are the tourists. Ordinarily there wouldn't I be much to talk about other than Peterborough Liberal MPP Jeff Leal's wacky attempt to introduce legislation which would enshrine the urban myth around picking the tril- lium, the white, three-petal wild fl ower which is the emblem of the province. Contrary to popular wisdom, picking the fl ower is not illegal in Ontario — and a good thing too because I transplanted a bunch from Muskoka to my To- ronto garden a few years ago un- der the cover of night thinking I was a rebel with a spade. Th at aside, however, an un- mistakable smell is wafting from the government position and it's not the trillium's cousin, the red- petal stinking Benjamin. (Yes, it's a real fl ower). Th e malodorous issue is that of eHealth and more precisely what's been spent in untendered contracts and related expenses. All this fi rst erupted last spring with former eHealth CEO Sarah Kramer's resignation followed shortly by board chairman Dr. Alan Hudson, after the opposi- tion parties howled about lavish spending and $2,700 per diem payments as part of $5 million in untendered contracts awarded to consultants which has since been revised to about $15 million. Health Minister David Caplan exacerbated the mess by stepping deeper into it even as he tried to stomp out the fi res burning around his bailiwick. First, it was just iso- lated, then eHealth announced it would have PricewaterhouseCoo- pers LLP review its spending. Th en Caplan called off PWC say- ing the auditor general would take the lead in the investigation. Th e opposition knew from the fi rst whiff they were onto something and at the end of last month the government tried to bury its scent under a tsunami of paperwork, releasing six thick binders with hundreds of pages of receipts, meeting minutes, and other documents. Th at's when it really hit the fan because on a slow summer's day with nothing else of much importance going on and with the imminent settling of the To- ronto city workers strike at hand, everyone could smell a good sto- ry fermenting despite the rotting stench of piled up garbage out- side the leafy confi nes of Queen's Park. Politics is optics and when it comes to government spending, it doesn't get much better than this. Between 2007 and 2008 eHealth Ontario spent $82 mil- lion. We know now at least $15 million was untendered and went to a company with close political ties to the Liberal Party. Th at's probably not a surprise. One of the perks of offi ce is dol- ing out contracts and work to the people who helped get you there and will help keep you in power. It's the nature of the spending which is starting to look awfully ugly. With a recession killing Inside Queen's Park By Ian Harvey jobs and shrinking household incomes, the McGuinty govern- ment is up to its neck in embar- rassing material. Aside from the $400 lim- ousine rides Kramer took from Toronto to London, Ont.; aside from eHealth board member Khalil Barsoum's $2,400 round- trip fl ight from Florida, associ- ated car rentals, and road tolls so he could make it to a Toronto board meeting; and aside from paying other board members to fl y to Toronto or in some cases, $380 a day to "prepare" for said meetings, the real stench here is that after spending something in the region of $650 million, the agency and its predecessor have almost nothing to show for it. Th ere is no plan in place. Th ere is no privacy legislation model such as British Columbia's eHealth (Personal Health Information Ac- cess and Protection of Privacy) Act to look at. Nada. Zilch. What we have instead is a consultant paid $2,700 a day who then bills an extra $5 for tea and cookies. Political scandal aside, eHealth is a serious issue with major rami- fi cations. Ontario is the nation's biggest, most populous, most ed- ucated, and most skilled province. It should be leading the country with a model eHealth program. Yes, it's a complex issue but other jurisdictions have managed to get their programs up and running. Th is is not merely about let- ting health care professionals have digital access to our health records so that we don't have to wait for documents to be sent to our doctor's offi ces or end up getting unnecessary treatment at an out-of-town hospital because we couldn't articulate our medi- cal histories. Th is is a sweeping change in the way we manage health care, collectively one of our biggest expenses on the public purse. Digital records will not produce massive savings to the system but the opportunity to analyze the anonymous, aggregated data will provide a gold mine of informa- tion which we can then apply to better manage our precious re- sources. In the hands of skilled re- searchers it might even start to suggest links to diseases in our population in real time. Th e po- tential is as great as the human genome project. What we have instead is a $650 million pile of stinking nothing. Try as they might, Caplan and col- leagues aren't going to scrape this mess off their shoes too easily. LT Ian Harvey has been a journalist for 32 years writing about a diverse range of issues including legal and political aff airs. His e-mail address is ianharvey@rogers.com. Fresh content delivered weekly. Canadian Lawyer | Law Times | 4Students | InHouse www.lawtimesnews.com HouseAd-Online - page 7.indd 1 7/23/09 5:13:23 PM COMMENT The return of classical constitutional law ject encompasses the fullness of constitutional law beyond the usual one-two punch of the Charter and division of powers. Th e generally acknowledged contours of constitutional law were set out by Albert Venn Dicey back in 1885 as "all rules which directly or indirectly aff ect the distribution of the exer- cise of the sovereign power in the state." Th ese include: the unwritten Constitution, consti- tutional development and amendment, the Governor General, the cabinet, the House of Commons, the Senate, the civil service, the ju- diciary, political parties, and federal-provincial relations. Indeed, if you look at constitutional law texts from the early dec- ades of the 20th century you will fi nd that they canvassed such subjects. But then something O ver the last several years, we have witnessed a resurgence in interest in classical constitutional law. Th is sub- Second happened. As a discipline, constitutional law became obsessed with division of powers and the de- cisions of the judicial committee of the Privy Council. Th e classical Constitution gave way to what I call "the old Constitution:" feder- alism and a focus on issues of constitutional amendment/patriation. Th e teachings of the old Constitution were refl ected in the texts of the era, most notably in the many editions of Bora Laskin's Canadian Constitutional Law, which was aptly subtitled cases, text and notes on the distribution of legislative power. While new law schools opened in Ontario and across the country, the hold of the old Constitution would not be dislodged. It was not that the classical subjects of constitutional law were forgotten, just only by most in the legal academy. Great Cana- dian political scientists like Eugene Forsey, Robert MacGregor Dawson, James Mallory, and Frank MacKinnon preserved and tilled this rich constitutional soil. Th ey were largely talking to themselves because with notable exceptions like McGill's Stephen Scott and Osgoode's Peter Hogg, most constitutional lawyers did not demonstrate an interest in these classical issues. And then of course came 1982. Th e new constitutional law was born consisting of the Charter, a continuing focus on federalism, and an increasing attention paid to aborigi- nal issues. Th e years between 1982 and 1992 were the Charter's age of ascent; the Charter was on the rise and executive federalism was on the demise after the deaths of Meech and Charlottetown. It was also an age of ascent for the Supreme Court, especially after 1992 as increased attention focused on it. But beginning in the mid- to late 1990s, we started to see a resurgence in interest in some of the classical issues in constitutional Opinion By Adam Dodek law. Th e Reform Party deserves much credit for shining a spotlight on many of our key constitutional actors. Th is spawned the dem- ocratic defi cit/democratic reform movements. A key date in the resurgence of classical con- stitutional law was March 27, 2003, a day which will live in infamy in the annals of con- stitutional history in this country. March 27, 2003 is the date of the ill-fated Magna Inter- national Inc. budget in Ontario when advis- ers to then premier Ernie Eves miscalculated that ordinary Ontarians would not care about constitutional technicalities like the conven- tion that the budget is always delivered in the legislature. How wrong they were. Th ings starting picking up steam after that as the constitutional fo- cus shifted to Ottawa where Parliament be- came the center of at- tention, something that had not happened since the Liberal Senate stalled former prime minister Brian Mulroney's free trade legislation. Entering an age of minority governments, Parliament became interesting, at times even riveting. Who can forget the drama of Belinda Stronach appearing next to former prime minister Paul Martin at the fateful press conference on May 17, 2005 followed by the non-confi dence vote two days later when all eyes were on a cancer-stricken Chuck Cadman? Meanwhile the politicized nature of the Supreme Court of Canada has lessened under Chief Justice Beverley McLachlin. Th ere was both greater acceptance of the Charter and of judicial review, and a more pragmatic court under her leadership than under former chief justice Antonio Lamer. All of this was prelude to what we now call "the crisis." With Governor General Michaëlle Jean and Parliament thrust into the limelight last fall, we have all become classical constitu- tionalists now. What does the future hold for classical con- stitutional law? We may be seeing a broader appreciation of the scope of constitutional law among lawyers, legal academics, law stu- dents, and the public; an appreciation that the relevant constitutional actors extend beyond the judges of the Supreme Court of Canada. Th ey include Parliament, the Prime minister, and yes, the Governor General. If the crisis has taught us one thing, it is that these areas of classical constitutional law are too important to ignore. Adam Dodek is a professor at the University of Ottawa's Faculty of Law. He can be reached at adodek@uOtttawa.ca. A special apprecia- tion to the lawyers at the Department of Justice's Constitutional and Administrative Law Section who suff ered through a much longer version of this article. 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