Wednesday, June 08, 2005

Why Canada will be rocked tomorrow

Hopefully I will be able to breakdown the ruling on medicare and private health care tomorrow. It is Chaoulli and Zeliotis v. Government of Canada. I envision the analysis to be along the lines of this post, per the celebrated Legal Theory Blog.

This is a HUGE case. Because the monopoly of medicare is at stake here. I predict that the SCC of Canada will interpret the Canada Health Act as preventing private health care to be an unfair encroachment of s.7 of the Charter. Here are some implications and reasons why I think it will be overturned.

Some possible implications:
  • the Liberals will no longer be able to defend the Canada Health Act againts private clinics, since private clinics will be legalized.
  • Public health care's monopoly will be gone.
  • Nothing.
I think the crux of the case is the standard of judicial review in the Charter.

s. 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

What is involved in the right to "life, liberty, and security of the person"? I think the Court has been very progressive in its thinking on this since 1982. The biggest judgment on that clause, so far, has probably been the abortion case in 1988. The logic of the court at that time suggested that the existing abortion law, that the consent of 3 doctors was needed in order to permit an abortion, was contra s.7 of the Charter. Why? Because security of the person meant that a (pregnant)

person cannot be said to be secure if, when her life or health is in danger, she is faced with a rule of criminal law which precludes her from obtaining effective and timely medical treatment.

Generally speaking, the constitutional right to security of the person must include some protection from state interference when a person's life or health is in danger.

If a rule of criminal law precludes a person from obtaining appropriate medical treatment when his or her life or health is in danger, then the state has intervened and this intervention constitutes a violation of that man's or that woman's security of the person. "Security of the person" must include a right of access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction. If an act of Parliament forces a person whose life or health is in danger to choose between, on the one hand, the commission of a crime to obtain effective and timely medical treatment and, on the other hand, inadequate treatment or no treatment at all, the right to security of the person has been violated.

....To force a woman, under threat of criminal sanction, to wait for medical treatment when she knows that her pregnancy represents a danger to her life or health is a violation of her right to security of the person. As was stated in Collin v. Lussier, [1983] 1 F.C. 218, at p. 239 (later reversed on appeal, [1985] 1 F.C. 124, but cited with approval on this point by Wilson J. in Singh v. Minister of Employment and Immigration, supra, at p. 208):

. . . such detention, by increasing the applicant's anxiety as to his state of health, is likely to make his illness worse and, by depriving him of access to adequate medical care, it is in fact an impairment of the security of his person.

To me, this precedent makes it pretty clear that any private clinics should be legal. Since waiting lists and overstocked emergency rooms in the public sphere threaten the "security of the person", private clinics which offer immediate care ought to be legal.

In my opinion, the Court has no choice but to follow the Morgentaler decision in 1988 which lifted restrictions on abortion. Unless, that is, the Court is willing to overturn that logic. Which I highly doubt, since the abortion case is probably coveted by most justices.

Expect big things tomorrow.

1 comment:

P. M. Jaworski said...

I hope you're right. I see where you're analysis of the Morgentaler decision feeds into this one, but I'm still skeptical that the Court would want to wade in on something like this. If they did, it would renew calls for their heads by the left-of-centre.