More On Chaoulli

My colleague Patronus does a wonderful job of analyzing the Chaoulli decision handed down today by the Supreme Court of Canada. His insights into what the decision means for the future of both constitutional jurisprudence and health care in this country should be read carefully.

Before adding some of my own thoughts, I want to summarize the basic legal issues so that non-lawyers/law students can make sense of them as well. Patronus tends to write to an audience with extensive background knowledge, and the post below is no exception. I've just read through the few hundred paragraphs of the decision and will do my best to lay it out as coherently and simply as possible.

The Statute: Quebec, like six other provinces in Canada, prohibits private health insurance. This means that while the province (in accordance with the federal Canada Health Act) provides insurance for most basic health services (the Ontario equivalent is OHIP), Quebeckers are prohibited from buying private health insurance for those same services. This means that private medical care plays only a limited role - as a subcontractor for the government, or if the citizen is able to pay out of pocket for the services, without insurance.

The Problem: Problem is, most people cannot afford to pay out-of-pocket for expensive medical procedures. They need insurance. Furthermore, public health insurance means working within the public system, which is notorious for its long waiting lists. This means Quebeckers are stuck - they cannot buy private insurance, and if they rely solely on public insurance, they may die or suffer in pain for months or years waiting for an operation.

The Charters: The Canadian Charter of Rights and Freedoms guarantees the rights to "life, liberty, and security of the person," except if they are overriden by "principles of fundamental justice" or limited as a "reasonable limit demonstrably justified in a free and democratic society. Thus, no statute may violate these rights unless one of those exceptions applies.

The Quebec Charter is similar but does not include identical exceptions. In a sense, it is slightly broader than the federal Charter.

The Courts are tasked with deciding when a statute passed by the provincial legislature (here the National Assembly of Quebec) or the federal Parliament has violated the Charter. If it has, the law is struck down as unconstitutional.

The Court's Decision: Four justices (out of a panel of seven) decided that the Quebec Charter was violated by the ban on private health insurance. Deschamps J. wrote the main opinion, which essentially found that the ban infringes on the guaranteed right to "life" and is not saved by any exception for fundamental justice because it is not designed to minimally impair that right to the extent possible consistent with the legitimate state objective of maintaining the public system.

In other words, the state can try to strengthen the public system of health care, but it must choose its methods so as to limit the infringements of individual rights as much as possible. By evaluating comparable public systems in other provinces and countries, the Court decided that the ban on private insurance was not designed to minimally impair Charter rights. (In contrast, it did meet the lower "rational connection" test - Deschamps J. recognized a rational connection between private insurance and maintaining the integrity of the public system.) Sweden, for example, featured prominently, as it maintains a universal public system like Canada without banning private insurance.

Deschamps J. considered the law under the Quebec Charter first because it is broader than the federal Charter; thus, if the law would have passed muster under the QC Charter, no further inquiry would have been needed. Likewise, since she found that the law failed under the QC Charter, it was not necessary to consider whether it would also fail under the federal Charter. (Courts have an aversion to deciding more than required in the particular case.)

The First Plurality: Three other justices: McLachlin CJ, Major J., and Bastarache J., joined with Deschamps J. but also wanted to go further.

These three also evaluated the law under the federal Charter and found that it failed that as well. Since they aren't a majority, their opinion is not the law and is non-binding, but is still instructive. They followed much of the same line as the main opinion, including looking to foreign countries and pointing out that the existence of private insurance cannot hurt the public system. These three failed the law under even the more lenient "rational connection" test, arguing that Quebec did not prove any rational connection between banning private insurance and strengthening the public system. The justices called the ban "arbitrary". That is a strong word.

If these three had won over a fourth justice, the impact of this decision would be more far-reaching. Since the federal Charter applies to all of Canada, the decision would have rendered similar laws in other provinces dead in the water. Instead, the application of this precedent to other provincial laws remains to be seen - as Patronus points out, the addition of Charron and Abella JJ. to the Court since Chaoulli was heard will impact future cases that build on it.

The Dissent: Three other justices: Binnie, Fish, and Lebel JJ., dissent from the judgment and argue that the law is fine under both Charters. This, by the way, is more along the lines of the lower court decisions in this case. The lower courts found that any violation of the right to life (if it can even be applied in this context) is justified by principles of fundamental justice, etc.

The dissenters argue that the public system is designed to promote equity and solidarity in that those who can pay for private insurance should not be allowed to get faster treatment ahead of others who cannot. Thus, the ban on private insurance is a rational way to strengthen those values and that goal. As for "minimal impairment" as discussed above, the dissenters acknowledge that this is a sensitive political issue that has been considered by the Quebec legislature and should be given deference.

Why the Dissent is Wrong: First, they focus too much on whether private insurance would help the problems with medicare, rather than on whether the banning thereof is justifiable. It is the government that must justify its intrusions into constitutional rights; the citizen need not prove that exercising his right would solve everyone's problems.

Second, the dissent also criticizes the majority opinion for setting a constitutional standard that is not manageable, because deciding that waiting times are unreasonable makes the Court an arbiter of medical facts and figures. But this misunderstands the reasoning of the Court - the justices did not hold that the state must provide reasonable service, or any health service at all, but rather that the state cannot create a monopoly on health care that infringes individual rights to life and security of the person by virtue of the long waiting lines. The Court simply decided from the evidence that the current system does so.

What the Court Did Not Say: The Court's decision was actually quite limited. The Court did not hold, for example, that provinces may not prevent doctors from selling their services privately. So theoretically, Quebec can just pass a law banning doctors from operating private services that are offered publicly. This law would be vulnerable on similar grounds as that in Chaoulli, but the province could reasonably argue that allowing doctors to opt-out of the public system and offer private care would hurt the public system by drawing doctors out. This would be more plausible than the analogous argument in this case, which concerned the provision of private insurance, given that currently doctors are allowed to sell services privately in Quebec...so why would private insurance make much difference?

The Court's reasoning is also limited. There is nothing about freedom of contract, for example. This case is just about life and security of the person rights, so it cannot be applied to, say, the public monopoly on postal delivery.

The Court also did not say, thank God, that the government is obligated to provide health services to anyone, for any reason, within any time frame. This decision is about negative rights - the state may not ban private insurance contracts that protect individuals' health - not positive rights like a "right" to prompt medical attention.

The Media's Take: I presume that the aspect of the case that the media will focus on (since it's the simplest and can be used to criticize conservatives) is the judicial-legislative relationship. In other words, should the Court have butted in?

Recall that when same-sex marriage was being litigated, conservatives argued that Parliament should decide the issue, not the Courts.

The problem is that the above argument is slightly imprecise. The real argument is that the traditional definition of marriage is not unconstitutional because it doesn't violate individual rights. It's a definition, and applies to everyone equally. When the state chooses not to recognize unions between same-sex partners, that is a social policy judgment and is not discriminatory. The Courts should not step in and force a social decision of that nature on the nation.

Here, we are talking about an explicit constitutional right to life, and a state restriction thereupon (as distinct from a state's failure to offer positive recognition in the form of a marriage license). In this type of situation, it is precisely the role of the Court to determine whether the infringement of the right (the state's imposition of penalties on those who choose to enter into life-saving private contractual arrangements) is justifiable under the tests in the jurisprudence (considering the state's objective, its connection to the restriction, and the degree to which the right is violated).

One could arguably compare this care more easily to judicial review of a law banning sodomy - that's a government restriction on the individual's right to liberty that is not justified by the above tests. Such a statute, of course, was recently struck down in the US in Lawrence v. Texas.

So while the media may try to criticize conservatives for 'hypocrisy' on this issue, we should stand our ground as defenders of true individual constitutional rights without giving up our arguments for parliamentary supremacy on issues of social policy that do not implicate fundamental rights and liberties of that nature (such as the "right" to have the state grant approval to one's union with a same-sex partner).