Nothing rhymes with Chaoulli
Having respected Sacamano's #1 Rule, I'm going to take a crack at breaking down today's SCOC decision on health care. There are a couple of spots where I will defer to people with formal legal training, but I hope that by giving an effort, I may address a couple of points that may be new, or not obvious, to non-lawyers, that a genuine law-talking-guy might skip over.
My overall impression is that there's something in there to disappoint everyone.
First of all, to anyone hoping that this decision establishes a legal principle or precedent that individuals have the right to medically care for our own bodies as we see fit: sorry! From the majority opinion, P.14 (italics mine):
As I mentioned at the beginning of my reasons, no one questions the need to preserve a sound public health care system. The central question raised by the appeal is whether the prohibition is justified by the need to preserve the integrity of the public system. In this regard, when my colleagues ask whether Quebec has the power under the Constitution to discourage the establishment of a parallel health care system, I can only agree with them that it does.
And from the dissent (not rebutted in the majority opinion), P.202:
Nor do we accept that s. 7 of the Canadian Charter guarantees Dr. Chaoulli the “liberty” to deliver health care in a private context. The trial judge correctly concluded that [translation] “s. 7 of the Canadian Charter does not protect a physician’s right to practise his or her profession without restrictions in the private sector. That is a purely economic right” (p. 823). The fact that state action constrains an individual’s freedom by eliminating career choices that would otherwise be available does not in itself attract the protection of the liberty interest under s. 7. The liberty interest does not, for example, include the right to transact business whenever one wishes: R. v. Edwards Books and Art Ltd.,  2 S.C.R. 713, at p. 786. Nor does it protect the right to exercise one’s chosen profession: Prostitution Reference, at p. 1179, per Lamer J.
The MDs out there can chew on the prostitution reference; I'm going to let it slide for today's purposes. Here's P.203 (also not rebutted in the majority opinion):
While we do not accept that there is a constitutional right “to spend money”, which would be a property right, ...
In general, I find the implications of this decision for "freedom", de jure at least, as very little cause for enthusiasm.
Next, there is some uncertainty surrounding the decision as it may apply to the other 9 provinces. The way I read it, I would characterize the Quebec aspect of the decision as "somewhat irrelevant". There's essentially two issues in play.
A) Deschamps, who authored the majority opinion, based it on the Quebec Charter. Since the concurring Justices based their opinion on the Canadian Charter, I think this issue is probably irrelevant.
B) Quebec's restrictions on private care are not identical to the other 9 provinces. I'll take arguments here, but I understand Deschamps to be saying that the "letter of the law" of explicit restrictions is rather moot, as both the intent and the cumulative effect of smaller restrictions constitute "real" restriction; with the possible apparent exception of Newfoundland, this would seem to apply to all other provinces as well. P.54 is most relevant:
Although there are, at first glance, no provisions that prohibit the provision of services by an individual or a legal person established for a private interest, a number of constraints are readily apparent. In addition to the restrictions relating to the remuneration of professionals, the requirement that a permit be obtained to provide hospital services creates a serious obstacle in practice. This constraint would not be problematic if the prevailing approach favoured the provision of private services. However, that is not the case. Not only are the restrictions real (Laverdière, at p. 170), but Mr. Chaoulli’s situation shows clearly that they are. Here again, the executive branch is implementing the intention of the Quebec legislature to limit the provision of private services outside the public plan. That intention is evident in the preliminary texts tabled in the National Assembly, in the debate concerning those texts and, finally, in the written submissions filed by the Attorney General of Quebec in the instant case.
Again, I'll listen to arguments here, but I think the reasonable starting assumption here is that this ruling affects all Canadians.
Those two major points addressed, here's the gist of the ruling as I see it:
- All the justices agree that, based on the present condition of the system, a prohibition of private medical insurance constitutes a violation of the right to life and security of person (although the dissenters insist on qualifying it as a violation for some people, their italics).
- All the justices agree that the government is permitted to run a monopoly health system if they do it well enough.
- Getting through all the broader and peripheral arguments, we run into our old friend Oakes, and we find this one sentence from P.156:
On the evidence here and for the reasons discussed above, the prohibition goes further than necessary to protect the public system: it is not minimally impairing.
4-3. Four justices believe that the "2nd tier" prohibition goes beyond what is necessary to protect the public system, and is thusly an unreasonable violation of Canadian's right to security of person. Three justices disagree, arguing that the impairment is reasonable, based on the government's objectives and the evidence as they see it. There you go, pretty much. A few other observations:
-- You will read some analysis, based on news reports or summaries, that the dissenting justices were "deferring to the legislatures", and furthermore that conservatives ought to be conflicted (Bob makes that point here). Take that with a large grain of salt, please. Sure, the dissenting justices start with this (P.161):
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. We find that, on the legal issues raised, the appeal should be dismissed.
But then they repeatedly, page after page, make political arguments. They further argue in P.214 that the Court owes the trial judge deference to her findings of fact and evaluation of expert testimony. Fair enough, but then they go on in P.242 to state this:
We therefore agree with the trial judge and the Quebec Court of Appeal that the appellants failed to make out a case of “arbitrariness” on the evidence. Indeed the evidence proves the contrary. We now propose to review briefly some of the evidence supporting the findings of the trial judge.
I'll defer to the lawbloggers here, but isn't this the judicial version of trying to have your cake and eat it, too? Either the evidentiary findings of the trial judge should be deferred to, or they should be re-examined - which is it? Seriously though: I can't believe someone could read the entire dissent and conclude that the Justices are attempting to "stay out of the way".
-- Rightwingers looking for something concretely positive in this ruling have this sentence from the concurring opinion, P.152:
When we look to the evidence rather than to assumptions, the connection between prohibiting private insurance and maintaining quality public health care vanishes.
Will politicians take note? Also read Deschamps in P.62-66; she stomps the standard pro-monopoly arguments into the ground.
-- It's appropriate that Colby Cosh, in his analysis, calls this "the most earth-shattering moment in Canadian jurisprudence since the Morgentaler ruling of January 28, 1988", because the majority opinion refers to that ruling frequently, and the dissenters object like hell. See P.43 and 118-121 for the majority opinion; P.259-264 for the dissent (under the sub-head, "The Morgentaler Case Is Not Applicable"(!)).
I look forward to reading other analyses. Please drop a comment if you object to any of my observations or conclusions.