A Quick Analysis of the Supreme Court Judgment in Chaoulli v. Quebec

Update Below

The right wing is overjoyed today:

"This is the end of medicare as we know it," said the [Canadian Taxpayers] federation's John Williamson. "This is a breach in government monopoly health care in this country."

They are falling all over themselves in the belief that the public system they hate is no more.

Well, not so fast.

As I read (and am still reading BTW, so expect updates) the judgment, this issue is not the existence of a public or private system, but of wait times:

"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. But that is not the issue in the appeal. The appellants do not contend that they have a constitutional right to private insurance. Rather, they contend that the waiting times violate their rights to life and security. It is the measure chosen by the government that is in issue, not Quebeckers’ need for a public health care system."[Emphasis mine]

So, from this we can see that the real issue was the waiting times for medical service rather than the "right" to private insurance. The court goes on to state that it is within the power of the province to ensure that people have access to healthcare in accordance with the Canada health Act:

"On this point, and based on the division of powers analysis in the preceding section, it is indisputable that the provincial government has jurisdiction over health care and can put mechanisms in place to ensure that all Quebeckers have access to health care."

The real issue is the wait times. Essentially the Supreme Court has ruled that wait times in Quebec, combined with the prohibition on having private insurance for publicly covered procedures, jeopardized the "right to life, and to personal security, inviolability and freedom" of Quebeckers because people are dying while waiting for procedures, or subjected to undue suffering because of wait times.

The key point is the "prohibition on having private insurance for publicly funded procedures". Only Quebec, Alberta and PEI take this measure. According to Justice Dechamps:

"Ontario (Health Care Accessibility Act, R.S.O. 1990, c. H.3, s. 2), Nova Scotia (Health Services and Insurance Act, R.S.N.S. 1989, c. 197, s. 29(2)) and Manitoba (Health Services Insurance Act, R.S.M. 1987, c. H35, s. 95(1)) prohibit non‑participating physicians from charging their patients more than what physicians receive from the public plan. In practice, there is no financial incentive to opt for the private sector. It is worth noting that Nova Scotia does not prohibit insurance contracts to cover health care obtained in the private sector. Ontario and Manitoba prohibit insurance contracts but refund amounts paid by patients to non‑participating physicians."

And

"Saskatchewan (Saskatchewan Medical Care Insurance Act, R.S.S. 1978, c. S‑29, s. 18(1.1)), New Brunswick (Medical Services Payment Act, R.S.N.B. 1973, c. M‑7, s. 2.01(a), and General Regulation ‑ Medical Services Payment Act, N.B. Reg. 84‑20, Sch. 2, para. n.1), and Newfoundland and Labrador (Medical Care Insurance Act, 1999, S.N.L. 1999, c. M‑5.1, s. 10(5), and Medical Care Insurance Insured Services Regulations, C.N.L.R. 21/96, s. 3) are open to the private sector. New Brunswick allows physicians to set their own fees. In Saskatchewan, this right is limited to non‑participating physicians. The cost is not refunded by the public plan, but patients may purchase insurance to cover those costs. Newfoundland and Labrador agrees to reimburse patients, up to the amount covered by the public plan, for fees paid to non‑participating physicians. In Newfoundland and Labrador, patients may subscribe to private insurance to cover the difference."

These show that the strict, absolute prohibition goes too far, but that the plans of the other provinces (other than BC, Alberta and PEI, which are identical to Quebec) do not.

So what is the real issue here? Wait times. Wait times cause by the critical and long term underfunding of the public system. It is clear from reading the judgment that had wait times been acceptable (although the court doesn't say what that is) this case would have failed or, more likely, never been launched in the first place.

We are experiencing this judgment and current difficulties in our healthcare system because of 15 years or more of underfunding by the Federal Government, under then Finance Minister and current Prime Minister Paul Martin. He was aided by demagoguess like Mike Harris. They have underfunded our system to the point that the Supreme Court has said that the wait times have violated our right to life and security. Now some of them are proposing a private system as the cure to the ills they themselves have created.

What is the solution?

"We have to strengthen the public health-care system so there is no need for a private system" - Health Minister Ujjal Dosanjh, earlier today.

In this instance I fully agree with Mr. Dosanjh. The solution is to restore the funding removed from the system and to implement the Romanow Report to elliminate the wait times. You, know, the stuff the NDP has been calling for for years?

Likely as not, what this ruling will mean in the long run is Canada will eventually have a private component to our Health Care system. The rich will be able to jump the queue. I hope we can use the example of Sweden to minimize the impact.

"Sweden does not prohibit private insurance, and the state does not refund the cost of health care paid for in the private sector. Private insurance accounts for only two percent of total health care expenditures and there are only nine private hospitals "(The Health of Canadians :– The Federal Role, at pp. 31‑33).

If Paul Martin needs an excuse to start funding our system properly here it is. Only the dramatic reduction of waiting lists will prevent actions in other provinces from succeeding.

One final note:

This judgment is not an overwhelming endorsement of private healthcare. This judgment was a 3-3 decision, with one abstention. And at the Supreme Court, a tie goes to the appellate, in this case Jacques Chaoulli and George Zeliotis.

I think the NDP has found an issue...

Update:

After having read the judgement again, and having mulled it over while laying in my dentist's chair, I am wondering if it is as bad as it seems.

Hear me out:

The Court said that the wait times have gotten so long that they were causing people to suffer and even die unnescesarily. Well, the NDP has been saying that for over 10 years. The new twist is that allowing the healthcare system to get to this level has had the affect that it was depriving Canadians of their rights to "life and personal inviolability", which is the essentially "life liberty and security of the person" as per section 7 of the Charter. I don't think too many of us that champion the public system would disagree with that. Also, the law in question was deemed to have violated the Quebec Charter of Rights but not the Canadian Charter of Rights, because the Quebec Charter is deemed to have a wider scope than the Canadian Charter.

The Court said, based on the reading of the Quebec Charter, that because of the wait time which have gotten too long, the Quebec law forbidding private health insurance covering public service was null and void because it violated the Quebec Charter since it forbade other means of getting service and the action of forbidding private insurance could not be reasoanbly justified in a free and democratic society.

So, if waiting times were not too long, the law forbidding private insurance could be reasonably justified in a free and democratic society. The solution, for Quebec in the short term and for Canada in the long term, would be to work at ensuring that wait times are considerably shortened. For instance, George Zeliotis had to wait 1 year for a hip replacement. Would it be reasonable to shorten this wait to 6 months? 3 months? 1 month? If the wait was not too long, the court would not have found in favour of Mr. Zeliotis, as stated above.

Of course, what constitutes a reasonable wait time may depend on the ailment, but this will need to be looked into. This is the way around this to ensure the future of our single tier public health system. And this is also something the NDP has long sought. In this light, the judgment is a gift to us (and a warning to act now) and we should take it.

But let me make one thing clear for all to hear:

This is the solution that will work without invoking section 33, the notwithstanding clause. If it comes down to supporting some infusion of private health insurance or delivery or invoking the notwithstanding clause, I will support private health insurance. I will NEVER under any circumstance, for any law or programme, support the use of the notwithstanding clause. Ever.

Now that might not make me popular with some folks like Warren Kinsella, but I have my principles and I won't abandon them because something doesn't go my way.