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.
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.