Chaoulli: The Supreme Court Case of the Year

Thursday morning, the Supreme Court of Canada will release its ruling in Chaoulli v. Quebec, in which the constitutionality of various provisions within Quebec medicare legislation--prohibiting the provision and purchase of private health care--was challenged. The claimants argue that the impugned legislation compromises the Charter of Rights guarantees to life, liberty, and security of the person insofar as the legislation creates a system plagued by waiting lists for important medical procedures.

While the two lower courts hearing the case upheld the legislation’s constitutionality and dismissed the challenge, the outcome at the High Court is far from clear. That the Court has taken so long to decide this case (it was heard one year ago) suggests that it is wrestling with internal divisions, while probably also recognizing the massive ramifications resulting from its judgment, no matter which way it rules.

I intended to offer a full analysis of the case as well as potential outcomes, but navigating once again through the "life, liberty, and security" jurisprudence has reinforced my view that the decision cannot be predicted. Sometimes the Court argues that s. 7 rights only relate to "legal rights" (ie. generally infringed during the criminal law process), while other cases take a different view. Some cases use "context factors" to determine whether the violation of life, liberty, and/or security is "in accordance with the principles of fundamental justice"; the central context factor being the balancing of collective and individual interests. And so on...

I've endeavoured nonetheless to outline a few of the possible decisions that the Court may make tomorrow:

1. Status Quo, no deviation from the Quebec Court of Appeal decision.
2. Status Quo, and a recognition of a positive-state obligation to provide health care.
3. Allowing the Appeal but affirming the constitutionality of the public monopoly on health care, by using the remedial "reading in" or "reading down" power.
4. Allowing the Appeal and ruling that medicare legislation is unconstitutional using the remedial "strike-down" power.

About the only predictable thing, ultimately, is the unpredictability of the decision. For fun, I predict a tight 4-3 decision, with Chief Justice McLachlin and Justices Binnie and Major voting together, and Justices Bastarche, Lebel, and Deschamps forming the other faction. I have no idea how Justice Fish will vote nor with whom he'll vote.

ALSO: For some background, check out Jaworskiblog's special Chaoulli site, which is promising frequent updates over the coming days.