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.

Thursday, June 09, 2005

More coming on the dissent and the biggest misinterpretation of this ruling by the media: that this is only Quebec-based. Balderdash! More later.
The Liberals seem out to lunch on the health care ruling. Compare the Liberal response to the ruling to the actual ruling to see how far the Liberal Cabinet is living in an alternate reality:
  • Federal Justice Minister Irwin Cotler: "On a first quick reading, the importance, the validity and the integrity of the public health-care system has been reaffirmed."
  • Supreme Court Justice Dechamps: "The Superior Court judge stated [translation] “that there [are] serious problems in certain sectors of the health care system” (at p. 823). The evidence supports that assertion. "

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.

Wednesday, June 08, 2005

My favourite constitutional scholar, Patrick Monahan (Dean of Osgoode Hall) agrees that restricting private care is unconstitutional when the public system is flawed. He wrote this(pdf) interesting and informative article. Here is an exerpt

Where governments institute measures that delay or impede access to medically necessary services and where that delay materially increases medical risks or otherwise results in adverse health consequences, the violation of security of the person is clear.This conclusion is consistent with the underlying approach of Chief Justice Dickson’s 1988 decision in Morgentaler, which emphasized that the state’s impeding access to timely abortion services violated section 7. Indeed, he specifically noted that the fact that patients may be able to access services in another jurisdiction, such as the United States, does not negate or eliminate the violation of security of the person. In effect, what Justice Dickson decided is that Canadians have a right to expect that medically necessary services are available in Canada.

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.

CBC and Literary Theory

It looks like academics and the media have come together once again:
The CBC's television news coverage of the United States is consistently marked by emotional criticism, rather than a rational consideration of US policy based on Canadian national interests, according to The Canadian "Garrison Mentality" and Anti-Americanism at the CBC, released today by The Fraser Institute.

This anti-American bias at the CBC is the consequence of a "garrison mentality" that has systematically informed the broadcaster's coverage of the US. Garrison mentality was a term coined by Canadian literary critic, Northrop Frye. He used it to describe a uniquely Canadian tendency reflected in our early literature, a tendency, as he put it, to "huddle together, stiffening our meager cultural defenses and projecting all our hostilities outward."

"The anti-Americanism of the CBC, we argue, is a faithful reflection of the garrison mentality evoked by Frye," said Professor Barry Cooper, co-author of the paper and managing director of the Institute's Alberta Policy Research Centre. "This mythical and symbolic anti-Americanism typifies a broad view of the world disproportionately maintained and believed in by Canadians living in the Loyalist heartland of southern Ontario."

Monday, June 06, 2005

esoteric ramblings on law

Standards of law, when explicated under the auspies of "evolving decency" are incredibly unpredictable. In one case, a law proscribing punishment was overturned when that same law had been upheld 11 years earlier on the same basis. When law has such flux, there is no rule of law as certainty. Perhaps one could construe a more harsh punishment than that offerded by the state if it decides that society wishes it at the time.

Interestingly, the Terri Schiavo case in the US and the Jehovah’s witness case in Canada demonstrate how increasing liberty of interpretation can actually be dangerous to citizens. That is, which is "cruel and unusual punishment": getting starved to death off life support. Or living in a PVS (persistent vegetative state). Without any sort of certainty in the rule of historical law, future citizens could potentially be put at risk at the insistence of the judicial system.