Chaoulli v. Quebec (Attorney General)
Encyclopedia
Chaoulli v. Quebec [2005] 1 S.C.R. 791,
was a decision by the Supreme Court of Canada
where the Court ruled that the Quebec Health Insurance Act and the Hospital Insurance Act prohibiting private medical insurance in the face of long wait times violated the Quebec Charter of Human Rights and Freedoms
. In a 4 to 3 decision, the Court found the Acts violated Quebec
kers' rights to life
and security of person
under the Quebec Charter; as such the ruling is only binding in Quebec. Three of the seven judges also found that the laws violated section seven
of the Canadian Charter of Rights and Freedoms
.
Jacques Chaoulli
is a doctor who provided home appointments to patients. He attempted to get a licence so he could offer his services as an independent private hospital, but was rejected due to provincial legislation prohibiting private health insurance.
Together, the two men sought a motion for a declaratory judgment
to contest the prohibition.
who only found a violation of the Quebec Charter. A second opinion was written by McLachlin C.J.
and Major J.
, with Bastarache J.
concurring, on the violation of section seven. A dissenting opinion was given by Binnie
and LeBel
JJ. with Fish J.
concurring in dissent.
The appeal court's characterization of the issue as an infringement of an economic right is rejected by Deschamps. She goes on to note that the long waits at hospitals can result in deaths and that private health care prohibited by the Quebec Acts would likely have saved those lives. The wait lists, she claims, are an implicit form of rationing, and it is the government's rationing policy that is being challenged here as a violation of the right to "security of person" (per Canadian Charter) and "personal inviolability" (per Quebec Charter).
Deschamps sides with the trial judge who found a violation of section 7 of the Canadian Charter, although she interprets it as being more of a violation of the similar section 1 of the Quebec Charter. She adopts a broad interpretation, citing R. v. Morgentaler
among others as examples of delay in medical treatment as a violation of security of person. She further rejects the dissent's suggestion that a patient could seek medical treatment outside of the province as too extreme and case-specific.
Turning to the requisite analysis to justify the violation, Deschamps points to the "minimal impairment" expectation to be the one of most interest. Expert and witness testimony was examined of which she found it to be not particularly credible nor useful. She then examines other provinces' health legislation, finding the lack of prohibitory legislation allows her to conclude that the Quebec Acts are not necessary to preserve the public health plan. Studies on public health programs in other countries examined by Deschamps support this claim.
The issue of deference to government is considered. "When the courts are given the tools they need to make a decision, they should not hesitate to assume their responsibilities", she states, claiming that social policies developed by the government should not be shied away from by the courts. Only if given a justification consistent with democratic values and sufficiently necessary to maintain public order should deference be given.
In concluding, Deschamp points her finger squarely at the government and suggests the need for change:
and section 1
of the Canadian Charter to reach the same outcome. They observe that the "Charter does not confer a freestanding constitutional right to health care. However, where the government puts in place a scheme to provide health care, that scheme must comply with the Charter."
To determine a violation of the Charter they look at how the Quebec Acts differ from the Canada Health Act
. They note that in contrast with other legislation, the impugned Acts remove the ability to contract for private health care insurance and in effect create a virtual monopoly for the public health system. On the evidence of significant delays in service, this monopoly harms the right to security of person. Delays in medical treatment could have physical and stressful consequences.
In reviewing the public health care systems of several countries they find that the connection was missing. In defence of this, they both criticize the dissents rejection of international data as well as a reliance on what they characterized as inconsistent reports from Romanow
and Senator Kirby
.
They describe the problem as an issue of public policy and social values which is not for the courts to decide.
The characterization of the problem by the majority contains too much ambiguity, they claim. How can the court determine what is a "reasonable" wait time, they ask?
Binnie and LeBel primarily take issue with the majority's claim that the law is arbitrary contrary to the principles of fundamental justice.
The dissent's interpretation of the legislation finds a rational connection to the objectives of the Canadian Health Act.
They admit they agree with the majority and the trial judge that the law will put some Quebeckers life and "security of person" at risk, but they do not see the matter being resolved by or applicable to the constitution. They state that "it will likely be a rare case where s. 7 will apply in circumstances entirely unrelated to adjudicative or administrative proceedings." However, they claim, this is not one of those times. Instead they lament the over-extension of the constitution.
In effect, the dissent says, the Court is only protecting the right to contract and pushing Canada into its own Lochner era
.
while dismissing those that claimed privatizing will not necessarily solve the problem.
The dissent characterize the majority's use of the word "arbitrary" as meaning "unnecessary", to which they claim that if that were true it would require the courts to interfere too much in law makers jobs.
The dissent’s final objection is the majority’s expansion of the reasoning in R. v. Morgentaler
. Binnie and LeBel distinguish R. v. Morgentaler from the current case as the former was about "manifest unfairness" and criminal liability, not arbitrariness and public health policy which they claim requires a much different analytical approach.
system, while others suggest that this could be a much-needed wake-up call to repair the ailing system.
This ruling would have a direct effect on most provinces that currently have laws that are designed to discourage the private sector, in particular Ontario, Manitoba, British Columbia, Alberta, and Prince Edward Island, which all have legislation very similar to the impugned laws in Quebec.
After the Supreme Court rendered its judgment, the Attorney General of Quebec asked the Court to stay (i.e. suspend) its judgment for 18 months. The Court granted the stay, but only for 12 months; it therefore expired on June 8, 2006.
In August 2005, delegates to the Canadian Medical Association
adopted a motion supporting access to private-sector health services and private medical insurance in circumstances where patients cannot obtain timely access to care through the single-payer
system.
In November 2005 a Quebec provincial white paper on limited private reforms was leaked to the media. The paper proposed allowing the purchase of private medical insurance. To prevent doctors from abandoning the public system the paper envisions having doctors perform a mandatory minimum quota of work in the public sector before they would be allowed to perform in the private sector.
was a decision by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
where the Court ruled that the Quebec Health Insurance Act and the Hospital Insurance Act prohibiting private medical insurance in the face of long wait times violated the Quebec Charter of Human Rights and Freedoms
Quebec Charter of Human Rights and Freedoms
The Charter of Human Rights and Freedoms is a statutory bill of rights and human rights code passed by the National Assembly of Quebec on June 27, 1975...
. In a 4 to 3 decision, the Court found the Acts violated Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
kers' rights to life
Right to life
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
and security of person
Security of person
Security of the person is a basic entitlement guaranteed by the Universal Declaration of Human Rights, adopted by the United Nations in 1948. It is also a human right explicitly mentioned and protected by the Constitution of Canada, the Constitution of South Africa and other laws around the...
under the Quebec Charter; as such the ruling is only binding in Quebec. Three of the seven judges also found that the laws violated section seven
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
.
Background
Having suffered in the past from numerous health problems including a hip replacement, 73-year-old salesman George Zeliotis became an advocate for reducing waiting times for patients in Quebec hospitals.Jacques Chaoulli
Jacques Chaoulli
Jacques Chaoulli is a French-Canadian physician noted for launching a Supreme Court challenge against the ban in Quebec on private health care.-Biography:...
is a doctor who provided home appointments to patients. He attempted to get a licence so he could offer his services as an independent private hospital, but was rejected due to provincial legislation prohibiting private health insurance.
Together, the two men sought a motion for a declaratory judgment
Declaratory judgment
A declaratory judgment is a judgment of a court in a civil case which declares the rights, duties, or obligations of one or more parties in a dispute. A declaratory judgment is legally binding, but it does not order any action by a party. In this way, the declaratory judgment is like an action to...
to contest the prohibition.
Court's opinions
Three separate opinions were written. The first is by DeschampsMarie Deschamps
Marie Deschamps is a puisne justice on the Supreme Court of Canada.-Education:She studied law at the Université de Montréal, graduating in 1974 and completing a Masters in 1983 at McGill.-Career:...
who only found a violation of the Quebec Charter. A second opinion was written by McLachlin C.J.
Beverley McLachlin
Beverley McLachlin, PC is the Chief Justice of Canada, the first woman to hold this position. She also serves as a Deputy of the Governor General of Canada.-Early life:...
and Major J.
John C. Major
John Charles "Jack" Major, CC, QC is a Canadian jurist and was a puisne justice on the Supreme Court of Canada from 1992 to 2005....
, with Bastarache J.
Michel Bastarache
J. E. Michel Bastarache is a Canadian lawyer, businessman, and retired puisne justice on the Supreme Court of Canada....
concurring, on the violation of section seven. A dissenting opinion was given by Binnie
Ian Binnie
William Ian Corneil Binnie was a puisne justice of the Supreme Court of Canada, serving from 1998 to 2011. Of the justices appointed to the Supreme Court in recent years, he is one of the few to have never sat as a judge prior to his appointment.- Personal life and career as lawyer :Binnie was...
and LeBel
Louis LeBel
Louis LeBel is a puisne justice on the Supreme Court of Canada.LeBel was born in Quebec City. He was the son of lawyer Paul LeBel, Q.C. He went to school at the Collège des Jésuites, graduating with a BA in 1958 from College des Jesuites. He earned his law degree at Université Laval in 1962 and...
JJ. with Fish J.
Morris Fish
Morris J. Fish, is a judge of the Supreme Court of Canada.Born in Montreal, Quebec, the son of Aaron S. Fish and Zlata Grober, he received a Bachelor of Arts in 1959 and a Bachelor of Law in 1962 from McGill University.He practiced law mostly in Quebec for the law firm Cohen, Leithman, Kaufman,...
concurring in dissent.
Deschamps
Deschamps begins by identifying the issue as being whether the prohibition is "justified by the need to preserve the integrity of the public system" and is not questioning the single-tier health system itself. In examining the legislative context of the case, she warns against politicizing the issue and against taking an emotional tone to the judgment.The appeal court's characterization of the issue as an infringement of an economic right is rejected by Deschamps. She goes on to note that the long waits at hospitals can result in deaths and that private health care prohibited by the Quebec Acts would likely have saved those lives. The wait lists, she claims, are an implicit form of rationing, and it is the government's rationing policy that is being challenged here as a violation of the right to "security of person" (per Canadian Charter) and "personal inviolability" (per Quebec Charter).
Deschamps sides with the trial judge who found a violation of section 7 of the Canadian Charter, although she interprets it as being more of a violation of the similar section 1 of the Quebec Charter. She adopts a broad interpretation, citing R. v. Morgentaler
R. v. Morgentaler
R. v. Morgentaler [1988] 1 S.C.R. 30 was a decision of the Supreme Court of Canada wherein the abortion provision in the Criminal Code of Canada was found to be unconstitutional, as it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms to "security of person"...
among others as examples of delay in medical treatment as a violation of security of person. She further rejects the dissent's suggestion that a patient could seek medical treatment outside of the province as too extreme and case-specific.
Turning to the requisite analysis to justify the violation, Deschamps points to the "minimal impairment" expectation to be the one of most interest. Expert and witness testimony was examined of which she found it to be not particularly credible nor useful. She then examines other provinces' health legislation, finding the lack of prohibitory legislation allows her to conclude that the Quebec Acts are not necessary to preserve the public health plan. Studies on public health programs in other countries examined by Deschamps support this claim.
The issue of deference to government is considered. "When the courts are given the tools they need to make a decision, they should not hesitate to assume their responsibilities", she states, claiming that social policies developed by the government should not be shied away from by the courts. Only if given a justification consistent with democratic values and sufficiently necessary to maintain public order should deference be given.
In concluding, Deschamp points her finger squarely at the government and suggests the need for change:
- For many years, the government has failed to act; the situation continues to deteriorate. This is not a case in which missing scientific data would allow for a more informed decision to be made. The principle of prudence that is so popular in matters relating to the environment and to medical research cannot be transposed to this case. Under the Quebec plan, the government can control its human resources in various ways, whether by using the time of professionals who have already reached the maximum for payment by the state, by applying the provision that authorizes it to compel even non?participating physicians to provide services (s. 30 HEIA) or by implementing less restrictive measures, like those adopted in the four Canadian provinces that do not prohibit private insurance or in the other OECD countries. While the government has the power to decide what measures to adopt, it cannot choose to do nothing in the face of the violation of Quebeckers’ right to security. The government has not given reasons for its failure to act. Inertia cannot be used as an argument to justify deference.
McLachlin and Major
Both McLachlin and Major agree with Deschamp's reasoning, but rely more on section 7Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
and section 1
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
of the Canadian Charter to reach the same outcome. They observe that the "Charter does not confer a freestanding constitutional right to health care. However, where the government puts in place a scheme to provide health care, that scheme must comply with the Charter."
To determine a violation of the Charter they look at how the Quebec Acts differ from the Canada Health Act
Canada Health Act
The Canada Health Act is a piece of Canadian federal legislation, adopted in 1984, which specifies the conditions and criteria with which the provincial and territorial health insurance programs must conform in order to receive federal transfer payments under the Canada Health Transfer...
. They note that in contrast with other legislation, the impugned Acts remove the ability to contract for private health care insurance and in effect create a virtual monopoly for the public health system. On the evidence of significant delays in service, this monopoly harms the right to security of person. Delays in medical treatment could have physical and stressful consequences.
In reviewing the public health care systems of several countries they find that the connection was missing. In defence of this, they both criticize the dissents rejection of international data as well as a reliance on what they characterized as inconsistent reports from Romanow
Romanow Report
The Royal Commission on the Future of Health Care in Canada , also known as the Romanow Report, is a committee study led by Roy Romanow on the future of health care in Canada. It was delivered in December 2002....
and Senator Kirby
Michael J. L. Kirby
Michael J. L. Kirby, OC is a Canadian politician. He sat in the Canadian Senate as a Liberal representing Nova Scotia. Currently, he is the Chair of the Mental Health Commission of Canada....
.
Binnie and LeBel
They begin by phrasing the question as being not one of rationing, but rather,- 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.
They describe the problem as an issue of public policy and social values which is not for the courts to decide.
- In our view, the appellants’ case does not rest on constitutional law but on their disagreement with the Quebec government on aspects of its social policy. The proper forum to determine the social policy of Quebec in this matter is the National Assembly.
The characterization of the problem by the majority contains too much ambiguity, they claim. How can the court determine what is a "reasonable" wait time, they ask?
Binnie and LeBel primarily take issue with the majority's claim that the law is arbitrary contrary to the principles of fundamental justice.
- appellants’ argument about “arbitrariness” is based largely on generalizations about the public system drawn from fragmentary experience, an overly optimistic view of the benefits offered by private health insurance, an oversimplified view of the adverse effects on the public health system of permitting private sector health services to flourish and an overly interventionist view of the role the courts should play in trying to supply a “fix” to the failings, real or perceived, of major social programs.
The dissent's interpretation of the legislation finds a rational connection to the objectives of the Canadian Health Act.
- Not all Canadian provinces prohibit private health insurance, but all of them take steps to protect the public health system by discouraging the private sector... the mixture of deterrents differs from province to province, but the underlying policies flow from the Canada Health Act and are the same: i.e. as a matter of principle, health care should be based on need, not wealth, and as a matter of practicality the provinces judge that growth of the private sector will undermine the strength of the Canada Health Act.
They admit they agree with the majority and the trial judge that the law will put some Quebeckers life and "security of person" at risk, but they do not see the matter being resolved by or applicable to the constitution. They state that "it will likely be a rare case where s. 7 will apply in circumstances entirely unrelated to adjudicative or administrative proceedings." However, they claim, this is not one of those times. Instead they lament the over-extension of the constitution.
- The Court has been moving away from a narrow approach to s. 7, which restricted the scope of the section to legal rights to be interpreted in light of the rights enumerated in ss. 8Section Eight of the Canadian Charter of Rights and FreedomsSection Eight of the Canadian Charter of Rights and Freedoms provides everyone in Canada with protection against unreasonable search and seizure. This Charter right provides Canadians with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state...
-14Section Fourteen of the Canadian Charter of Rights and FreedomsSection Fourteen of the Canadian Charter of Rights and Freedoms is the last section under the "Legal rights" heading in the Charter. It provides anyone in a court the right to an interpreter if the person does not speak the language being used or is deaf.-Text:The section states:-Background:Before...
.
In effect, the dissent says, the Court is only protecting the right to contract and pushing Canada into its own Lochner era
Lochner era
The Lochner era is a period in American legal history in which the Supreme Court of the United States tended to strike down laws held to be infringing on economic liberty or private contract rights, and takes its name from a 1905 case, Lochner v. New York. The beginning of the period is usually...
.
while dismissing those that claimed privatizing will not necessarily solve the problem.
The dissent characterize the majority's use of the word "arbitrary" as meaning "unnecessary", to which they claim that if that were true it would require the courts to interfere too much in law makers jobs.
The dissent’s final objection is the majority’s expansion of the reasoning in R. v. Morgentaler
R. v. Morgentaler
R. v. Morgentaler [1988] 1 S.C.R. 30 was a decision of the Supreme Court of Canada wherein the abortion provision in the Criminal Code of Canada was found to be unconstitutional, as it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms to "security of person"...
. Binnie and LeBel distinguish R. v. Morgentaler from the current case as the former was about "manifest unfairness" and criminal liability, not arbitrariness and public health policy which they claim requires a much different analytical approach.
Aftermath
The decision proved to be highly contentious due to both its political nature and its conflict with the present government's policy on health. There are those who argue that this decision could potentially lead to the dismantling of the Canadian MedicareMedicare (Canada)
Medicare is the unofficial name for Canada's publicly funded universal health insurance system. The formal terminology for the insurance system is provided by the Canada Health Act and the health insurance legislation of the individual provinces and territories.Under the terms of the Canada Health...
system, while others suggest that this could be a much-needed wake-up call to repair the ailing system.
This ruling would have a direct effect on most provinces that currently have laws that are designed to discourage the private sector, in particular Ontario, Manitoba, British Columbia, Alberta, and Prince Edward Island, which all have legislation very similar to the impugned laws in Quebec.
After the Supreme Court rendered its judgment, the Attorney General of Quebec asked the Court to stay (i.e. suspend) its judgment for 18 months. The Court granted the stay, but only for 12 months; it therefore expired on June 8, 2006.
In August 2005, delegates to the Canadian Medical Association
Canadian Medical Association
The Canadian Medical Association , with more than 70,000 members, is the largest association of doctors in Canada and works to represent their interests nationally. It formed in 1867, three months after Confederation...
adopted a motion supporting access to private-sector health services and private medical insurance in circumstances where patients cannot obtain timely access to care through the single-payer
Single-payer health care
Single-payer health care is medical care funded from a single insurance pool, run by the state. Under a single-payer system, universal health care for an entire population can be financed from a pool to which many parties employees, employers, and the state have contributed...
system.
In November 2005 a Quebec provincial white paper on limited private reforms was leaked to the media. The paper proposed allowing the purchase of private medical insurance. To prevent doctors from abandoning the public system the paper envisions having doctors perform a mandatory minimum quota of work in the public sector before they would be allowed to perform in the private sector.
See also
- Health care in CanadaHealth care in CanadaHealth care in Canada is delivered through a publicly-funded health care system, which is mostly free at the point of use and has most services provided by private entities. It is guided by the provisions of the Canada Health Act. The government assures the quality of care through federal standards...
- List of Supreme Court of Canada cases (McLachlin Court) Jacques Chaoulli
- Shona Holmes
Court documents
- Court of Appeal decision (translated from french)
- Facta
Analysis
- Supreme disagreement: The highest court affirms an empty right - analysis in the CMAJ by lawyer Colleen Flood and Cancer Care Ontario President Terrence Sullivan.
- analysis of case from mapleleafweb.com
- Supreme Court slaps for-sale sign on medicare - analysis by Lawrie McFarlane, deputy minister of health for British ColumbiaBritish ColumbiaBritish Columbia is the westernmost of Canada's provinces and is known for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . Its name was chosen by Queen Victoria in 1858...
. - "inside Chaoullli" analysis by CUPECanadian Union of Public EmployeesThe Canadian Union of Public Employees is a Canadian trade union serving the public sector - although it has in recent years organized workplaces in the non-profit and para-public sector as well...
. - Réseau de recherche en santé des populations du Québec conference on Chaoulli containing various analyses (french)
- A Hitchhiker's Guide to Chaoulli Comment on the practical effect of the Chaoulli decision by Tom McIntosh, Director of Canadian Policy Research Networks (CPRN)Canadian Policy Research Networks (CPRN)Canadian Policy Research Networks was a non-profit, non-partisan socio-economic think tank based in Ottawa, Canada, with a focus on citizen engagement and policy research and analysis.-History:...
, Health Network
Press reports
- Freedom Fighter - Western Standard article by Peter Jaworski.
- A doctor challenges Canada's health care system - International Herald Tribune article by Clifford Krauss.
- Chaoulli decision was not judicial activism - a commentary by Arthur Weinrib.
- Lament for a health care system - a CMAJ editorial about the court ruling.