Chaoulli v. Quebec part II: The boiled down version

So, after reading the judgment again and going over some threads in other blogs, I think its time to boil the case down and make it as simple as possible, so there is no confusion as to what it says and what it may or may not mean. Here is my interpretation:*

The Facts:

1. The wait times for service in Quebec (and the rest of Canada) are very long. People were dying waiting for procedures, waiting so long that the procedure would no longer help or they were waiting in, at times, excruciating pain.
2. Mr. Zeliotis had to wait 1 year for a hip replacement, in 1996 (meaning the wait today would probably be much longer)
3. Quebec's Health Insurance Act (HEIA) , section 15 and Hospital Insurance Act (HOIA), section 15 prohibiting Quebec residents from taking out insurance to obtain in private sector health care services already available under Quebec’s public health care plan:

15. No person shall make or renew a contract of insurance or make a payment under a contract of insurance under which an insured service is furnished or under which all or part of the cost of such a service is paid to a resident or a deemed resident of Québec or to another person on his behalf. . . .

11. (1) No one shall make or renew, or make a payment under a contract under which

(a) a resident is to be provided with or to be reimbursed for the cost of any hospital service that is one of the insured services;

(b) payment is conditional upon the hospitalization of a resident; or

(c) payment is dependent upon the length of time the resident is a patient in a facility maintained by an institution contemplated in section 2. . . .

4. The Quebec Charter of Rights, section 1 states:

"1. Every human being has a right to life, and to personal security, inviolability and freedom." This is similar to the Charter's section 7, but deemed to be more widely interpreted than section 7."

5. Mr. Chaoulli was Mr. Zeliotis' doctor who wished to perform the operation in a private clinic, legally operating in Quebec (and opted out of the public system) and be paid by this insurance.

The Judgment:

The Supreme Court said that because wait times were too long AND that there was no other option in the Quebec system but to wait (because of the prohibition on private insurance), Mr. Zeliotis' rights to "life, and to personal inviolability" under section 1 of the Quebec Charter of Rights (but not under the Canadian Charter of Rights) were violated (and, thus, the rights of all Quebec residents).

The Court ruled that Quebec had the power to prohibit private insurance and thus limit the section 1 rights in order to protect the integrity of the public system, but only as can be reasonably justified in a free and democratic society. The Court ruled that the prohibition could not be reasonably justified, because, as they point out in the judgement, other jusridictions don't go as far as a prohibition and don't show a degradation of the public system - specifically they point to Newfoundland, New Brusnwick and Saskatchewan in Canada and Sweden and Austria in the EU as examples.

It is the combination of long wait times and prohibition on private insurance that led to an unreasonable limit that violated Mr. Zeliotis' rights uner the Quebec Charter of Rights (but, again, not under the Canadian Charter of Rights).

The effect is that sections 11 and 15 above are null and void. It is now up to the legislature of Quebec to remedy the situation.

In my opinion there are a few remedies:

1. Drastically reduce or eliminate wait times. This would eliminate one of the two elements that are the basis of the violation (and in my opinion the main one).

2. Allow private insurance, thus allowing people to "jump the queue." This is legally palitable but not so politically. This would eliminate the other of the two elements that are the basis of the violation.

3. Implement rules similar to Newfoundland, New Brunswick or Saskatchewan (or possibly even Sweden or Austria, but that would be national changes). The Court didn't say it outright, but implied that the measures in these provinces, because they weren't as drastic, would not have violtated Mr. Zeliotis' rights.

I'll leave it as an excercise to the reader which two I would prefer.

As someone on CBC radio said this morning, this is like a bucket of cold water thrown onto the government. Wake up and take care of our system like you are supposed to. Or don't and let private healthcare leak in. Which position do you think will win votes in the next election? Which position will make people forget about Gomery?

Update:

Thanks to The Jurist over at Accidental Deliberations for pointing out paragraph 158 of the concurring judgement, which itself supports my conclusion and points to a solution:

"In sum, the prohibition on obtaining private health insurance, while it might be constitutional in circumstances where health care services are reasonable as to both quality and timeliness, is not constitutional where the public system fails to deliver reasonable services...(I)f the government chooses to act, it must do so properly."

* I am not a lawyer. I do, however, have a BA(Hons) in Law, with a minor in Political Science from Carleton University ('91). I sepecialized in Constitutional Law, Civil Liberties and Human Rights and Criminal Law in my studies. I am very well versed in English Common Law and I know how to read and interpret cases. I have read and analyzed most leading Constituional cases (I own the Hogg books referenced in the descision) thanks to studying under Prof. Jim Mackenzie, one of Canada's leading constitutional lawyers (and I got an 'A' in the course ;-) ). Because of this, I am quite confident in my analysis on this case, but I do appreciate any and all feedback from actual lawyers or law students.