Friday, June 10, 2005

Round 2 - the Dissent

Well, I have been pseudo-busy, so it has taken me a while to get to the dissent. And probably another evening to write my opinion on the whole thing. Lately, I have been thinking alot about section 7 of the Charter. It really occured to me that s.7 might have been misapplied by the court when reading a book on constitutional law which mentioned the "Due process" clause in the US, which prohibits the state to deprive its citizens of life, liberty, and property without the due process of law. Now this is somewhat analogous to the Canadian phrase without the principles of fundamental justice in s.7. I wonder how similar we can consider them. With that aside, I now present you with some highlights of the dissent.

I think the dissent surprised me a bit. It was well written, emotional, yet they emphasized that it was a legal discussion. This was appreciated, as I thought that McLachlin's majority (minus Deschamps) was bordering on non-legal evidence of health care systems around the world which were cherrypicked.

Without further unsupported ramblings, I give you some highlights of the dissent in Chaoulli v. Canada:

"We are unable to agree with our four colleagues who would allow the appeal that such a debate can or should be resolved as a matter of law by judges."

Right from the outset, they state their conservativism. Interestingly, I think you can read Deschamps' sections on judicial review to be a direct response to the dissent. If you read Deschamps' section on J.R., read the dissent first -- the dissent argues that the issue is ultra leges, or outside of the law and into the realm of the political.

The majority lays down no manageable constitutional standard. The public cannot know, nor can judges or governments know, how much health care is “reasonable” enough to satisfy s. 7 of the Canadian Charter of Rights and Freedoms (“Canadian Charter”) and s. 1 of the Charter of Human Rights and Freedoms, R.S.Q. c. C-12 (“Quebec Charter”). It is to be hoped that we will know it when we see it.

I agree with this assessment. It was quite disappointing, in hindsight, that "reasonable" merely becomes the reasonableness of the judge, rather than any sort of limiting "test" or precedent. It seems that the only precedent is Morgentaler v. R, which, as you will see, the Court rejects.

Our colleagues McLachlin C.J. and Major J. argue that Quebec’s enforcement of a single-tier health plan meets this legal test because it is “arbitrary”....Whatever else it might be, the prohibition is not arbitrary.... A legislative policy is not “arbitrary” just because we may disagree with it

This is a big problem with McLachlin's opinion. That a law is arbitrary seems to be a matter of opinion, or as McLachlin spins it, "evidence." McLachlin surveys world health systems to show that the prohibition against private care is arbitrary. So, in an a reductio ad absurdum, the dissenters show that private care in many jurisdictions is actually problematic. Note that McLachlin DOES NOT MENTION US HEALTH CARE. Not once. The dissenters do, however.

In our view, the appellants’ case does not rest on constitutional law but on their disagreement with the Quebec government on aspects of its social policy. The proper forum to determine the social policy of Quebec in this matter is the National Assembly.

Suffice it to say at this point that in our view, the appellants’ argument about “arbitrariness” is based largely on ... an overly interventionist view of the role the courts should play in trying to supply a “fix” to the failings, real or perceived, of major social programs.

I agree.

Morgentaler provides no support for the appellants in this case

Our colleagues the Chief Justice and Major J. rely substantially on comments made by Beetz J. (concurred in by Estey J.) in Morgentaler when he invoked a principle of “manifest unfairness”. Nowhere in his analysis pertaining to the principles of fundamental justice did Beetz J. use the words “arbitrary” or “arbitrariness”. Moreover the context for his remarks was the prospect of a criminal prosecution of a pregnant woman. Section 251(2) of the Criminal Code stated that a pregnant woman who used “any means or permit[ed] any means to be used” for the purpose of procuring her own miscarriage was guilty of an indictable offence punishable with imprisonment for two years. Parliament provided a defence if the continued pregnancy would or would be likely to, in the opinion of a therapeutic abortion committee, “endanger her life or health” (s. 251(4)(c)). The Court struck down the criminal prohibition because the prohibition was designed to operate only with the statutory defence, and the Court found that in practice these committees operated unevenly and that the statutory scheme “contain[ed] so many potential barriers to its own operation that the defence it create[ed would] in many circumstances be practically unavailable to women who would prima facie qualify ...” (at pp. 72-73, per Dickson C.J.). For Beetz J., too, a key issue was that a significant proportion of Canada’s population is not served by hospitals in which therapeutic abortions could lawfully be performed (pp. 94-95).

On the contrary, given its goal of providing necessary medical services to all Quebec residents based on need, Quebec’s determination to protect the equity, viability and efficiency of the public health care system is rational.

I disagree with their assessment of Morgentaler. I would first argue that the Chauolli case, not the abortion case, is a more serious matter in terms of immediate care. The fact that one has to wait indefinately for a potential life altering surgery is a more pressing matter than getting an abortion board to agree to immediately have an abortion that could save the mother's life. Secondly abortions in which the mother's life are in danger are less than three precent of all non-terminated pregnancies. This, compared to the million or so people in waiting lines. The seriousness of both cases can be of some contention, I admit. However, I think all one needs to really show is that they are loosely parallel.

And I believe there is quite a legal parallel to be drawn between the two cases (Morgentaler and Chaoulli). The state had an interest in the health of the feotus in that case; in Chaoulli, the state has an interest in the health of its citizens. In Morgentaler, the health of the mother was at stake because services were being unduly restricted; in Chaoilli, his life was in potential danger because the public system forced him to wait too long.

The other aspect of the assessment is its attempt to distinguish public policy with criminal law. It is true that health care is a social policy (as was abortion). However, private health care is prohibited under the impression that there will be consequences if it is allowed to coexist alongside public care. In other words, the prohibition of private care would mean nothing unless there were ramifications for defying that prohibition.

Thus, I would still hold that Morgentaler would apply to the Chauolli case. This is good stare decisis. However, I am still pretty much against the reasoning of Morgentaler in fundamental ways. The remedy to remove all abortion law is a gross overstretch of the judiciary, compared to the remedy offered in Chaoulli which appears to give the legislative provision a chance (by showing that if the public system can reduce waiting times, than a private system may actually be unconstitutional).

Hopefully all this is not too convoluted. I hope to write a piece very soon on the case contra the media line that this case does not affect all Canadians, legally speaking.


P. M. Jaworski said...

Jonathan -

Having read half of your post, I felt I had to say this (but possibly more once I finish). Your opening salvo doesn't get it right, although interesting similarities may exist.

The due process of law requirement means that there must be a (maybe 'reasonable' or whatever) process before life, liberty and pursuit of happiness can be abridged. In Canada, however, the requirement is a touch more ephemeral--except as it is in keeping with the principles of fundamental justice. 'Fundamental justice' has not, from my limited knowledge of the court decisions, been interpreted as a procedural requirement. Thus, life, liberty, and security of the person can be stripped without any procedure in Canada, just so long as it meets 'fundamental justice.'

That's one. I'll separate my comments.

P. M. Jaworski said...

Part two: My friend, James MacDuff, argues similarly to you on his blog with respect to the 'what is to be deemed reasonable?' question.

I wrote in his comment section (, and I suppose it is worthwhile to just quote it:
"The ruling of the majority sounds a bit otiose. It is much like John Harsanyi's complaint against Rawls when the latter defended the maximin principle by insisting that it is a decision-rule in a macro sense only, and not for micro purposes. Harsanyi mocked Rawls by saying something to the effect of: "Does Rawls seriously believe that there is some number 'x' above which the maximin rule applies, and below which it doesn't? What is this magic number? How do we arrive at precisely it?"

Why is this a silly reaction (more like 'outburst')? Because there are clearly cases where we are certain that we are dealing with 'macro' sorts of things, and cases, like two person cases, where we are obviously dealing with 'micro' cases. The fact that we cannot perfectly distinguish between the two is of no consequence to the upshot. This is obviously a forest, that there is obviously just one tree, but I can't tell you precisely how many trees make up a forest, nor what configuration they would have to be in (can a straight row of one million trees be considered a forest?).

So what if the Court cannot rule on precisely how many MRIs is in accordance with the Charter? All they needed to show was that the current system falls below 'reasonable.' Waiting two years for a knee replacement is unreasonable. What about a month? That seems reasonable. A month and a day? Sure. But two years? Nope.

The kind of skepticism both the court and Harsanyi display is reminiscent of the Sorite paradox (if I remove one hair from your head, are you bald? What about two? No? At what precise point do you go from hairy to bald?) This is fun for philosophy (and for vague predicates, the field it opened up) but it makes for crappy arguments and even worse policy.

That there exists a gray area is obvious. That the current system is not anywhere near that grey area is all the court had to decide on. I think that one, too, is fairly obvious if you take a look at waiting list surveys and studies."

P. M. Jaworski said...

Okay, one last thing. You write:
"Note that McLachlin DOES NOT MENTION US HEALTH CARE. Not once. The dissenters do, however."

Insofar as the dissenters do make reference to the U.S., they are not being true to the evidence presented before the court. From my conversations with Chaoulli and the interveners arguing alongside Chaoulli, they did not raise the issue of U.S. care. In fact, Chaoulli told me that anyone who does is not being honest. "They are intellectually dishonest," he told, if they refer to the U.S. as a contrast.

Why is that? Because the argument has nothing to do with the U.S. Not the waiting times, not the system, not the process, and not the approach. Instead, the arguments presented dealt with European-style hybrid systems (Sweden, France, Germany, U.K., etc.) ONLY. After all, what is being considered is not the abolishment of the universal system, but, instead, appending it to include a private option. A parallel system.

Any reference to the U.S. is a political, not a legal, statement. It is irrelevant in this case.

Notice that the appellants argued that in countries that have parallel private systems (and a universal one) wait times are non-existent, or significantly shorter. They did not mention the U.S. as a case, except when it comes to Canadians going to the U.S. for health (I believe this was one of the findings of the majority--that, at the moment, only the rich have options when they are forced to wait. They can go to the U.S., other countries, or find ways to pay for their care within Canada. The poor are disadvantaged in that respect since, should they either have the money, be able to raise it, borrow, or whatever, the additional cost of going to another country would, in most cases, be insurmountable.)

Small wonder, then, that the majority made no reference to the U.S. They, after all, attended the trial, and realized that America has nothing to do with this case.

Jonathan said...

1. Per the McLachlin non reference to US care, I agree. However, one has to ask themselves what logic she took in citing foreign health systems to begin with that were irrelevant. I mean, she was cherry picking ones that would justify her decision and leaving it at that. Thus, I think it is important that she left out any evidence contra her position. So for you to say that the majority realized that US healthcare had nothing to do with the case might be a stretch, considering the flurry of other systems they quoted. In fact, this is the scariest part of the majority: that international systems matter to Canadian law. In essence, McLachlin seems to be arguing that the Canadian prohibition against private care is "arbitrary" because "this is supported by our jurisprudence, according to which the experience of other western democracies may be relevant in assessing alleged arbitrariness."

I agree with you on the point that it is irrelevant. But I point out that she does not mention US health care in CAPS because I think SHE thinks foreign systems are relevant.

2. As far as the due process clause goes, I am pretty unfamiliar with the substantive provisions attached with "fundamental justice." The way I read it, it is so vague that you pretty much can use it anyway you want to make it what you mean. I think the dissent referred to that a bit when it said that the definition has not been fully defined by the court. Although from a plain reading of the text and an eytemology of the clause, it would appear more formalistic to me (ie. you can be deprived as long as you appear before a judge, etc.). The principle enunciated by McLachlin is kind of wierd actually = that law is arbitrary if it has no connection with the object of the law? First of all, how can the courts determine legislative intent as a whole body made up of many many minds. Secondly, why does intent validate a statute? That is my problem with the Lord's Day Act when it was struck down in 1985. Essentially, the statute was fine, it was just that its intent was religious, therefore it was against religious freedom. When, in Edwards Books v. Canada, the Court upheld the Sunday closing law because the object of the statute was non-religious. Yet the text and effect was the same. I don't see why there is any meaningful differentiation, or why a religious intent violated the Charter if it is democratic (the Charter mentions the Christian God?).

3. I think your second comment is interesting. I just am not sure really how everyone has their own definition of "reasonable" and yet "reasonable" is supposed to be a universal rallying point. Personally, I dont even think that "reasonable" needs to come into play at all in this case. It is not about where the system is at to provide "reasonable care." IT is the effect of the statute. Are people getting cared for? But once, as the majority did, start wading the waters of what is "reasonable care" in specifics, I think that can be dangerous without defining what constitutes "reasonable care" but only "unreasonable care." I mean, all the majority needed to do was show that the patient's lack of alternative to the public system was a threat against his health and it would have been enough to strike down the prohibition. Instead I feel that the majority went on a few tangents here. IF you read the majority opinion (and even the dissent) I think they are good at being concise, but their topics they chose to be concise upon are irrelevant much of the time (aka, "judicial review" rant by Deschamps).

I guess all I am looking for is that there is no falsification that is to be preformed. At what point is the system working? I think the proper response is, to the point that people are not endangering their health by system delays.

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