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Jay Currie

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6/09/2005

Only in Quebec....Pity

The infringement of the rights protected by s. 1 is not justified under s. 9.1 of the Quebec Charter. The general objective of the HOIA and the HEIA is to promote health care of the highest possible quality for all Quebeckers regardless of their ability to pay. The purpose of the prohibition on private insurance in s. 11 HOIA and s. 15 HEIA is to preserve the integrity of the public health care system. Preservation of the public plan is a pressing and substantial objective, but there is no proportionality between the measure adopted to attain the objective and the objective itself. While an absolute prohibition on private insurance does have a rational connection with the objective of preserving the public plan, the Attorney General of Quebec has not demonstrated that this measure meets the minimal impairment test. It cannot be concluded from the evidence concerning the Quebec plan or the plans of the other provinces of Canada, or from the evolution of the systems of various OECD countries that an absolute prohibition on private insurance is necessary to protect the integrity of the public plan. There are a wide range of measures that are less drastic and also less intrusive in relation to the protected rights.

This is not a case in which the Court must show deference to the government’s choice of measure. The courts have a duty to rise above political debate. When, as in the case at bar, the courts are given the tools they need to make a decision, they should not hesitate to assume their responsibilities. Deference cannot lead the judicial branch to abdicate its role in favour of the legislative branch or the executive branch. While the government has the power to decide what measures to adopt, it cannot choose to do nothing in the face of a violation of Quebeckers’ right to security. Inertia cannot be used as an argument to justify deference.
Chaoulli v. Quebec
Rather cleverly the SCC declined to ground its ruling in the Canadian Charter of Rights and Freedoms as the impugned law already contravened Quebec's own Charter.

So, in a technical sense, the decision does not apply in the rest of Canada; but the Court indicated the direction of its thinking here,
It cannot be concluded from the evidence concerning the Quebec plan or the plans of the other provinces of Canada, or from the evolution of the systems of various OECD countries that an absolute prohibition on private insurance is necessary to protect the integrity of the public plan.
If ever there was a broad hint this is it.

Which means that Dithers and his Health Minister, "Let's Make a Deal" Dosanjh, are left in a rather awkward position. The Canada Health Act, in so far as it can be construed as prohibiting private provision of medical care, would appear null and void in Quebec. The Court is strongly signalling that the integrity of the healthcare syatem as a whole is not a sufficient basis for denying a particular person the right to purchase medical services outside the scheme, but within Canada, using whatever form of payment they choose and insuring themselves.

Assuming that Tommy Douglas does not actually climb out of his grave to smite the SCC, the Canadian Health Care system is pretty much at an end as a single payer system.

And, without invoking the notwithstanding clause, it is not clear the feds can do a thing about it.

Should the feds be think along those lines they will want to read McLachlin C.J., Major and Bastarache JJ.'s concurence:
While the decision about the type of health care system Quebec should adopt falls to the legislature of that province, the resulting legislation, like all laws, must comply with the Canadian Charter. Here, it is common ground that the effect of the prohibition on private health insurance set out in s. 11 HOIA and s. 15 HEIA is to allow only the very rich, who can afford private health care without need of insurance, to secure private care in order to avoid any delays in the public system. Given the prohibition, most Quebeckers have no choice but to accept any delays in the public health regime and the consequences this entails....

Where lack of timely health care can result in death, the s. 7 protection of life is engaged; where it can result in serious psychological and physical suffering, the s. 7 protection of security of the person is triggered. In this case, the government has prohibited private health insurance that would permit ordinary Quebeckers to access private health care while failing to deliver health care in a reasonable manner, thereby increasing the risk of complications and death. In so doing, it has interfered with the interests protected by s. 7 of the Canadian Charter.