Monday, June 13, 2005

Chaoulli: once more, with feeling

I thought I'd take one more run at at Chaoulli v. Quebec, because despite the reams of comment in print and in the webasphere, there has been a void that I find notable. So: I categorically reject that this ruling constitutes judicial activism by any reasonable standard.

It has been broadly characterized as such because (A) the SCOC struck down a law duly passed by a legislature, and (B) the dissent contained a few words to the effect of, "Health care is a mess for legislatures to fix".

This is an extremely illiberal characterization: if you believe that this action in and of itself constitutes judicial activism, you necessarily believe that we ought to repeal the Charter. After all, what do we have it for? The Charter guarantees us certain rights and freedoms, with various exceptions, that may not be abrogated by statute. The Supreme Court is the guarantor of this at the end of the line. The simple striking down of a statute by the SCOC is not undemocratic.

The other way to argue that Chaoulli = judicial activism is to say that the majority struck down the law(s) based on rights that aren't in the Charter, or that they weighed and interpreted competing rights incorrectly to suit their political agenda. Here you can argue more plausibly; I just think you'd be wrong.

It's instructive to look at the things that all 7 Justices agreed on. Three are important:
  1. (some) people die and/or suffer on waiting lists for public health care, and this violates their right to life and security of person
  2. the legislative objective of the prohibition on private insurance is to preserve the public health care system
  3. (1.) is only a violation of s.7 if (2.) violates an established legal "principle of fundamental justice"; in this case, whether the means are "arbitrary"

Then the Justices split in answering (3.), and they did so based overwhelmingly on their interpretation of the evidence tabled at the Superior Court.

The majority found the expert testimony supporting Quebec's position to be uncompelling due to its lack of data and facts. They also found evidence from other provinces and countries did not support the notion that private prohibition was logical. In the end, they found that it was "arbitrary".

The dissenters were compelled by Quebec's expert testimony (and by the trial judge's acceptance of it), and didn't find anything in the evidence from other countries to conclude that the prohibition was "inconsistent" with the objective of a strong public system. In the end, they found that it was not "arbitrary".

Essentially, the majority found that a government statute was killing people, for no good reason, and kiboshed that policy. Correctly, they said nothing about how to fix medicare. I just don't see how that amounts to four unelected judges ramming their agenda down Canadians' throats.

UPDATE: pogge gives me even more confidence that I'm right about this:
...the Supreme Court is standing up for the individual in the face of government mismanagement and inaction. That, in part at least, is exactly what we should expect of the Supreme Court and if that's activism I'm all for it.


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