Thursday, June 09, 2005

SCC rules on private health

The Supreme Court ruled today that prohibiting private health care violates the Quebec Charter and the Charter of Rights and Freedoms. I was right in my prediction (see below post), National Post was wrong ("we do not actually expect Dr. Chaoulli and Mr. Zeliotis to win their case today").



Dechamps, McLachlin C.J. and Major J. (Bastarache J. concurring) thought the Quebec Charter was violated. But only latter three justices believed the Charter was violated (see why one abstained). This created a 3-3 tie on whether or not the Charter was violated, not just the Quebec Charter. The dissent was written by Binnie and LeBel JJ. (Fish J. concurring).

Highlights and analysis:

Interesting, Paul Martin's defense of a single public health care system is dependent on his interpretation of the Health Care Act: "We're not going to have a two-tier health-care system in this country," says Martin today. Well, good luck preventing it now Paul if you continue to let Health slide in this country. Dechamps lays this powerful statement down:

The Canada Health Act does not prohibit private health care services, nor does it provide benchmarks for the length of waiting times that might be regarded as consistent with the principles it lays down, and in particular with the principle of real accessibility.

Dechamps, writing in judgment for the majority boils down the case in a paragraph:
In essence, the question is whether Quebeckers who are prepared to spend money to get access to health care that is, in practice, not accessible in the public sector because of waiting lists may be validly prevented from doing so by the state. For the reasons that follow, I find that the prohibition infringes the right to personal inviolability and that it is not justified by a proper regard for democratic values, public order and the general well‑being of the citizens of Quebec.

Although the Court had a 3-3 tie in whether the law prohibiting private care violated the Charter, it is clear that the camp who wishes to preserve the public health care monopoly has been dealt an absolute blow by the abstaining justice in that question. This is her reason:

Because I conclude that the Quebec Charter has been violated, it will not be necessary for me to consider the arguments based on the Canadian Charter....With regard to certain aspects of the two charters, the law is the same. For example, the wording of the right to life and liberty is identical. It is thus appropriate to consider the two together.

This is a massive blow that I think will deal a dual message to the provinces: if it doesn't violate your own provincial laws, it will violate the Canadian Charter of Rights. The only difference Dechamps sees in the Charter of Rights and the Quebec Charter is that the latter has no section 1 review, that the limitation of rights in s. 7 (ie. life, liberty, security of the person) are not subject to the principles of fundamental justice under the Quebec Charter.

This seems to be Dechamps logic:
  1. "Health care in Quebec is subject to waiting times"
  2. "Low‑quality services can threaten the lives of users"
  3. "The right to life is therefore affected by the delays that are the necessary result of waiting lists."
Dechamps, disturbingly, quotes from Roach (“Dialogic Judicial Review and its Critics” (2004), 23 Sup. Ct. L. R. (2d) 49), who says that

Judges can add value to societal debates about justice by listening to claims of injustice and by promoting values and perspectives that may not otherwise be taken seriously in the legislative process.

Promoting values and perspectives? I hardly think it is the Court's job to promote anything other than making sense of the law. Interpreting the law? Yes. Promoting values outside of the law? No. Sections 85-90 seem really out of place in this judgment. Why rant on about judicial review other than to promote your own values of the Court when it hardly applies here (that is, judicial review goes without saying)?

The Chief Justice
and Major's opinion:

They are quick to point out that "The Charter does not confer a freestanding constitutional right to health care."

Their opinion is essentially an analysis of the prohibition of private care against the Charter. They must then analyse the violation of s. 7 based on a s.1 review.

Where a law adversely affects life, liberty or security of the person, it must conform to the principles of fundamental justice. This law, in our view, fails to do so.
This case has big ramifications, and the Justices know that. See the subtle hint given here?

is it a violation of s. 7 of the Charter to prohibit private insurance for health care, when the result is to subject Canadians to long delays with resultant risk of physical and psychological harm? The mere fact that this question may have policy ramifications does not permit us to avoid answering it.
Policy ramifications eh.

The abortion jurisprudence continues in this case. They note that

Beetz J. agreed with Dickson C.J. that “[t]he delays mean therefore that the state has intervened in such a manner as to create an additional risk to health, and consequently this intervention constitutes a violation of the woman’s security of the person”: see Morgentaler, at pp. 105-106....As in Morgentaler, the result is interference with security of the person under s. 7 of the Charter.... We therefore conclude that the decision provides guidance in the case at bar.
Thus far, the decisions have been surprisingly basic. I think people will be stunned at how simple the logic is. Thus, the tricky part now is the s.1 review. Is the limited right subject to the principles of fundamental justice? Yes. And interestingly, they accord as a principle of fundamental justice that "law shall not be arbitrary"::"The state is not entitled to arbitrarily limit its citizens’ rights to life, liberty and security of the person."

Hold on. It is not? Aren't all laws the result of the arbitrary will of the legislature? They say that "A law is arbitrary where “it bears no relation to, or is inconsistent with, the objective that lies behind [it]." I am trying really hard to follow what the Chief Justice is getting at here. I think what she may be saying is that the objective of the law prohibiting private health care inconsistent with its objective of providing universal care to all patients:

"The experience of these countries suggests that there is no real connection in fact between prohibition of health insurance and the goal of a quality public health system."

Above all, the most worrying statement comes from this opinion:

The task of the courts, on s. 7 issues as on others, is to evaluate the issue in the light, not just of common sense or theory, but of the evidence. This is supported by our jurisprudence, according to which the experience of other western democracies may be relevant in assessing alleged arbitrariness. In Rodriguez, the majority of this Court relied on evidence from other western democracies, concluding that the fact that assisted suicide was heavily regulated in other countries suggested that Canada’s prohibition was not arbitrary.


I think this effectively twists the definition of arbitrary prohibitions. That is like saying that if Canada is the only country in the world to create a law about x or y, it is arbitrary. By this logic, same-sex marriage is also an arbitrary bill that should be struck down the courts, since other Western democracies do not have full-fledged same-sex marriage. I actually side with the dissent on this issue, who "suggest that the experience of other countries is of little assistance." This effectively is a natural law jurisprudence, where the notion of justice is derived from the fact that the collective of other cultures and countries have a proper sense of justice. In keeping in step with these countries, Canada can avoid arbitrariness by keeping and striking down probitions ad hoc. The decision of what is "in step" is more arbitrary than any legislation passed by the courts, which are, inherently, per se.

Preliminary Conclusions on the majority decision:
  1. I think the majority ruled correctly, based on stare decisis, or what they had previous decided in other cases.
  2. I think there was some notable deviations on the issue at hand by justices going on irrelevent diatribes on arbitrary action and judicial review -- which were not necessary to the case.
  3. It would be hard pressed for the Canadian government to continue to chastise private health care when it has not fixed public health care, therefore endangering citizens' lives and health.

1 comment:

P. M. Jaworski said...

This is great analysis, Jonathan. Nice work. I'll link to this post on my site.