Jacques Chaoulli v. Attorney General of Quebec

[August1991]

I vaguely recall hearing of this case but I was reminded of it by small dead animals and the Western Standard.

Before you think this a right-wing conspiracy, the very "reputable" New York Times is the source of the story below:

A diminutive man who has trouble keeping his wire-rim glasses on straight, Dr. Chaoulli, 53, hardly looks like the "freedom fighter" that Canada's conservative news media have called him. But if he wins his case he will tear up the third rail of the nation's politics and raze what many Canadians consider to be the bedrock of their national identity.

He argues that regulations that create long waiting times for surgery contradict the constitutional guarantees for individuals of "life, liberty and the security of the person," and that the prohibition against private medical insurance and care is for sick patients an "infringement of the protection against cruel and unusual treatment."

He believes that Canada is disallowing the basic contract rights of doctors and patients, and that the country would serve the sick much better if it had a parallel private health care system, as in France and many other industrialized countries.

"His argument is credible," said Patrick Monahan, dean of the Osgoode Hall Law School of York University in Toronto. "The issue of waiting times does raise constitutional issues."

Many of our laws interfere with the freedom to contract but the question is whether this particular interference is permissible.

This is the Supreme Court link which shows that a decision has been pending for almost a year.

Based on past experience (electoral law, language in Quebec, same sex marriage), the Supreme Court will likely make a political decision first and then find a way to justify it afterwards.

Lastly, it is curious that one has to read about an interesting and relevant case in a foreign newspaper.

[Guest eureka]

The case has had local commentary, August. I read about it quite some time ago and have been waiting to see the answer.

The case can also be made that the State is not protecting life, liberty, and security of the person if it allows resources to be diverted from the public to the private sector.

A much more important question, on my opinion, is how are waiting times to be reduced for all. Making the good doctor richer does not weigh heavily in my priorities. Neither does reducing waiting times for the wealthy at the expense of the rest of us.

[August1991]

A much more important question, on my opinion, is how are waiting times to be reduced for all. Making the good doctor richer does not weigh heavily in my priorities. Neither does reducing waiting times for the wealthy at the expense of the rest of us.

Yours was the refrain of ordinary people in the Soviet Union: why are there so many queues?

Our Supreme Court decided that it is wrong to forbid two men from signing a marriage contract. No doubt, the same Court will decide that it is permissible to forbid two men from signing a contract which could save one of the men's life.

[Riverwind]

Our Supreme Court decided that it is wrong to forbid two men from signing a marriage contract.  No doubt, the same Court will decide that it is permissible to forbid two men from signing a contract which could save one of the men's life.

An excellent way to put it. I am hoping that the delay is a sign that the court plans to rule that way but it is waiting for a less tumultuous political time to drop the bombshell. Other the other hard, the court did rule that early retirement is discrimination but justified - I am concerned we will get that result.

[Guest eureka]

At the cost of lives lost by those who do not have preferential access and from whom resources have been taken away.

Preferential access is the Harper plan as I have pointed out several times already.

Read the Reform Party Caucus statement writtem by Harper in _ I forget the year bit I have posted it previously.

[August1991]

At the cost of lives lost by those who do not have preferential access and from whom resources have been taken away.

eureka, this is a zero-sum thinking. You assume that resources are fixed in size and giving a bigger piece of cake to one person means that someone else gets less. Life ain't so.

But let me use a different argument. eureka, you object to the idea of taking away resources and letting people die as a result. Well, would you agree that chocolate bars are less important than health care? Should we forbid the production of chocolate bars and move all the people now involved in this business into health care work instead?

eureka, how can you live in a society where some people can eat chocolate while others must wait for hip replacement surgery?

[Guest eureka]

Not a great analogy, August! The chocolate producers could not be moved into health care since part of the resources lost would be the money to pay for them. Besides that, some might argue that chocolate is equally important.

Resources are more or less fixed in size. There is only so much money available and only so many practitioners. They certainly could not expand to fill those lost to the private care. All the arguments that have been made in the past apply. The only societies that have the option of preferential treatment also have poorer care for the rest.

France, Germany, the UK etc. do not have the kind of parallel systems that the proponents of private care claim. Those countries spend as much or more on their public systems as Canada as a proportion of total spending.

[August1991]

The Supreme Court will announce its decision tomorrow in this case.

Senator Michael Kirby, who chaired a Senate committee that studied medicare and which made a legal presentation to the court, said yesterday the case is extremely important.

He said there are three likely scenarios as to how the court could rule: maintain the status quo; allow a parallel private system; or, as a compromise, require governments to provide a so-called "care guarantee" to patients on how long they have to wait for treatment in the public system. Provinces that did not meet the benchmark would have to pay for the patient's treatment in another province or the United States.

"Any of those scenarios is profound," Sen. Kirby said. "Suppose they decide the status quo is OK. That is equivalent to saying governments have no obligation to meet reasonable service standards."

NP

I am fairly certain that the Supreme Court will go with Kirby's third option listed above. But a "care guarantee" (or pre-determined waiting times) are meaningless - so the decision will be tantamount to approving the status quo, but it won't be announced like that. I would be very surprised if the Supreme Court allowed a parallel private (two-tier) system. In any case, I'll bet PM PM has already received a "heads up" about the decision so he has time to prepare a reply.

The Supreme Court's decisions now are simply identical to Liberal Party policy. There is no need at all to make anything correspond to any precedent or even the meaning of words.

[August1991]

Supreme Court Decision Here

It appears the Court is saying, because of the Quebec Charter of Rights (a mere act of Quebec's National Assembly), the Quebec government has the right to forbid access to private health care. The Court's decsion does not rely on the Canadian Charter of Rights.

Does this mean that if a province decides to word its rights legislation differently, it could allow a two-tier system?

The question in this appeal is whether the province of Quebec not only has the constitutional authority to establish a comprehensive single‑tier health plan, but to discourage a second (private) tier health sector by prohibiting the purchase and sale of private health insurance.  This issue has been the subject of protracted debate in Quebec and across Canada through several provincial and federal elections.  The debate cannot be resolved as a matter of constitutional law by judges.

The evidence amply supports the validity of the prohibition of private insurance under the Quebec Charter: the objectives are compelling; a rational connection between the measure and the objective has been demonstrated, and the choice made by the National Assembly is within the range of options that are justifiable under s. 9.1.  In respect of questions of social and economic policy, the minimal impairment test leaves a substantial margin of appreciation to the Quebec legislature.  Designing, financing and operating the public health system of a modern democratic society remains a challenging task and calls for difficult choices.  Shifting the design of the health system to the courts is not a wise outcome.

[Bakunin]

Supreme Court Decision Here

It appears the Court is saying, because of the Quebec Charter of Rights (a mere act of Quebec's National Assembly), the Quebec government has the right to forbid access to private health care.  The Court's decsion does not rely on the Canadian Charter of Rights.

Does this mean that if a province decides to word its rights legislation differently, it could allow a two-tier system?

The question in this appeal is whether the province of Quebec not only has the constitutional authority to establish a comprehensive single‑tier health plan, but to discourage a second (private) tier health sector by prohibiting the purchase and sale of private health insurance.  This issue has been the subject of protracted debate in Quebec and across Canada through several provincial and federal elections.  The debate cannot be resolved as a matter of constitutional law by judges.

The evidence amply supports the validity of the prohibition of private insurance under the Quebec Charter: the objectives are compelling; a rational connection between the measure and the objective has been demonstrated, and the choice made by the National Assembly is within the range of options that are justifiable under s. 9.1.  In respect of questions of social and economic policy, the minimal impairment test leaves a substantial margin of appreciation to the Quebec legislature.  Designing, financing and operating the public health system of a modern democratic society remains a challenging task and calls for difficult choices.  Shifting the design of the health system to the courts is not a wise outcome.

<{POST_SNAPBACK}>

Finally, i hope this will help in the destruction of our soviet style healthcare system.

[The Terrible Sweal]

The Court should be slapped for this decision. It does nothing but create but chaos.

[Bakunin]

The Court should be slapped for this decision.  It does nothing but create  but chaos.

<{POST_SNAPBACK}>

Its perfect, official privatisation of healthcare in the most leftish province of canada will open the debate, we should look at the rest of the world, maybe we could have a system like in France.

[Technocrat]

Forgive my forgetfulness but does anyone remember the report on healthcare that was quite extensensive a few years ago? I can't remember the authors name, and right now im too busy to look it up.

Anyhow the conclusion was that private healthcare is no more effecient then public services. If and when there are 'savings' they get translated into profit not better service.

If someone could dig that up... im sure it would help people understand the issue a little better.

[August1991]

Well, now that I have seen what has happened, I am very, very surprised by this Supreme Court decision. (Moreover, I have also learned an important lesson. I will never post quickly on an important issue.)

In this case, the decision was 4-3.

In favour: Deschamps, McLachlin, Major, Bastarache

Dissenting: Binnie, Lebel, Fish

(Note that Major and McLachlin were appointed by Mulroney, all the others by the Liberals)

I think this is the key paragraph written by Deschamps:

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.

s. 1 of the Quebec Charter states:

1 . Every human being has a right to life, and to personal security, inviolability and freedom.  He also possesses juridical personality.

HOIA and HEIA refer to Quebec health acts

The "minimal impairment test" or "reasonable minimal impairment test" or "least drastic means test" refers to the idea that if a government has a policy that infringes a Charter right, its policy must do so with least impairment to the right in question.

The word "proportionality" is also used above. This refers to the idea of a government's legislative method being proportional, in terms of its Charter effect, to the legislation's objective.

All of this is to say that Quebec's health care acts have noble goals, but there are other ways to achieve those goals that infringe less on Quebec's Charter of Rights.

-----

Another paragragh from the decision:

In the case of a challenge to a Quebec statute, it is appropriate to look first to the rules that apply specifically in Quebec before turning to the Canadian Charter, especially where the provisions of the two charters produce cumulative effects, but where the rules are not identical.

This is possibly the "distinct society" provision in action. The Court is saying that it will use Quebec legislation first. Having found that Quebec's health acts contravene Quebec's Charter (because the health acts forbid access to private health insurance), the Court avoids having to use the federal Charter.

-----

There was a private medical clinic director (an MD with over 20 years experience in the public system) in Quebec on local CBC radio today who made some very good overall points. (Yes, I think the CBC can do good radio sometimes.)

1) The legislators are very happy by this decision because they want to change the law, but they have no authority to do it. The Supreme Court has taken the heat. The politicians can now say their changes are in accordance with the Supreme Court (while at the same time saying we have a public system).

2) The current public system has existed for about 40 years. At first, it worked. Now, it doesn't. As this director noted, many clinics that would have gone bankrupt, or changed direction, simply haven't. The public system keeps them alive. (That's so true - it is the essential problem with Sovietism.)

3) All hospitals in Quebec have "Foundations" to raise charitable funds for capital works. Donors to the foundation have their own health files tagged "VIP" and of course don't wait. IOW, we have a private system now.

4) This director was very happy by the decision because it meant that he could now work entirely legally.

-----

I heard Ujjal Dosanjh this evening on a CBC radio interview. Would someone please hire this guy as a suburban talk-show host? He says absolutely nothing in a really dumb way. I was particularly offended when he delivered the schtick: "I came to this country in 1968.... It has the greatest health care system in the world.... "

[August1991]

So, after all this, what does the New York Times say about Canada, its health system, its Supreme Court, and Quebec?

The Supreme Court on Thursday struck down a Quebec law banning private medical insurance in a decision that represents an acute blow to the publicly financed national health care system.

The high court stopped short of striking down the constitutionality of the country's vaunted health care system nationwide, but specialists across the legal spectrum said they expected the decision to lead to sweeping changes in the Canadian health care system.

New York Times

Conclusion?

The New York Times announces that Canada's health system is difficult to manage, but a State Health System is possible, if there are "sweeping changes".

My conclusion?

The New York Times is clueless.

[Technocrat]

no your just retarted

jk its 2am

i give the quebec government 2 weeks before the notwithstanding clause comes out.