Chaoulli: The Supreme Court Case of the Decade

Well, there you have it. The Supreme Court of Canada has ruled that state prohibitions on private health care insurance are unconstitutional.

Some thoughts:

1. This affects every province’s health care system. While the decision is only applicable in Quebec, other provinces will have to follow suit in terms of a) increasing access to medicare by substantially eliminating waiting lists or b) simply removing prohibitions on private insurance. Any province that fails to undertake meaningful reform will likely be subject to a comparable Charter challenge.

2. The Court has decided to take a more intrusive, supervisory role in the administration of social programmes. If the comments of the Chief Justice and Justice Major with respect to the provision of public health care of a “reasonable standard within a reasonable time” are transposed into other circumstances, a viable argument could be made to expand state administration of social programmes where there is no clear alternative private option for their delivery. This should be cause for concern, especially considering recent decisions of the Court (Gosselin, Auton) which have been largely deferential to the choices made by parliamentarians in the provision of social programmes.

3. Don’t think that this decision won’t get overturned. With new Justices Abella and Charron having historically taken a more collectivist approach to constitutional adjudication, if a similar case wound its way through the courts it's conceivable that the minority in Chaoulli could become a majority decision, as neither of these two participated in the present case. With Justice Major departing the Court soon (he voted with the majority), this throws the future of comparable jurisprudence into doubt.

4. The Court continues to be strategic and political in its adjudication of sensitive political issues. That the author of the majority decision (Justice Deschamps) did not address the issue of the Charter of Rights violation illustrates one of two things: a) that Justices from Quebec are reluctant to use the Charter to strike down Quebec legislation and b) that its very likely this is how the rest of the majority swung Deschamps’ vote. That the other Quebec judges were extremely sympathetic to the prohibition on private insurance *because that’s what the Quebec National Assembly decided was best to ensure the viability of the public system* substantiates the view that this decision was as much about federalism politics as it was about health care. All the more ironic is that Deschamps *acknowledged* that the same tests to determine the constitutionality of the legislation apply under both the Quebec and Canadian Charters, but for some reason decided completely neglect any decision based on the latter, which would have made the decision binding across Canada.

Like many opponents of statist health care, I screamed with glee this morning when I read the headlines. But the decision is a sad indictment of our country’s legislators. Instead of trying to convince the public that having a mixed public-private health care system would address many of health care’s problems, politicians took the easy route and shoveled money into a black hole, while countless have died or been permanently incapacitated waiting for health care that will never come. The Court's intervention is thus a stinging rebuke of the state of Canadian politics.