Academic journal article Review of Constitutional Studies

Legal Modesty and Political Boldness: The Supreme Court of Canada's Decision in Chaoulli V. Quebec

Academic journal article Review of Constitutional Studies

Legal Modesty and Political Boldness: The Supreme Court of Canada's Decision in Chaoulli V. Quebec

Article excerpt

I. INTRODUCTION

Canadians consistently tell pollsters that health care is their number one political priority, (1) and health care policy represents one of the most salient and flattering comparisons they make between Canada and the United States. Roy Romanow, Chair of the Commission on the Future of Health Care in Canada, intoned at the beginning of his final report that in their discussions with him: "Canadians have been clear that they still strongly support the core values on which our health care system is premised--equity, fairness, and solidarity. These values are tied to their understanding of citizenship. Canadians consider equal and timely access to medically necessary health care services on the basis of need as a right of citizenship, not a privilege of status or wealth." (2)

The Canadian Charter of Rights and Freedoms (3) is the other great icon, a statement not simply of technical rights and interpretive provisions but of fundamental Canadian values, (4) of those threads that bind an otherwise fragmented, multicultural, disputatious political community. So profound has been the Charter's effect on the national consciousness that undergraduate students typically think that the Charter is the constitution. The courts' interpretation of the Charter is often associated (in the public mind, if not always in the case law) with all that is correct and proper: among other things, a woman's access to abortion, (5) laws that make it a crime to promote hatred, (6) the right of same-sex couples to marry, (7) and the provision of publicly funded interpreters for deaf patients seeking medical attention. (8) The least that can be said is that while public support for specific Supreme Court of Canada Charter decisions may waver, diffuse or general support for the Charter and its chief interpreter remains consistently high. (9)

Shocking it was, then, when in Chaoulli v. Quebec (10) the majority of a Supreme Court panel declared invalid a provision of Quebec's health care legislation that prohibited the purchase of private health insurance (PHI). This was not supposed to happen. The Charter is about rights, equality, and fundamental Canadian values; Canadian health care policy is egalitarian, efficient, and not American. The two should thrive in loving embrace. Alas, the Charter, in the hands of careless legal surgeons, became a knife that excised an element of the Canadian health care system that has kept it from the slide into market commodification. This looks like a judicial revolution, led not by the lefties whose victories are decried by the proponents of the Court Party thesis, (11) but instead by the forces of private property rights, neo-liberalism, and the business-friendly policies associated with the Fraser and C.D. Howe Institutes. Everyone was put off balance: the Charterphiliac equality-seekers who have looked to the Charter and the Supreme Court for the advancement of their agenda, and the Charterphobic types on the right who consider the Court captive to a gaggle of grievance groups that see the state as the answer to all problems. (12)

This article suggests that the decision is both narrower and broader than casual observers are likely to conclude. It is tempting to glean from the result that the Court has "discovered" in the Charter an economic right of property redolent of the Lochner (13) era in United States Supreme Court jurisprudence. In fact, the matter was decided on narrower, procedural terms that are traceable to the Court's 1988 decision in Morgentaler. (14) But Chaoulli, though jurisprudentially modest, is nonetheless a politically bold intervention into a sensitive, complex area of social policy and Canadian federalism.

II. THE CHAOULLI DECISION: WAIT LISTS, HEALTH RISKS, AND THE RIGHT TO PERSONAL SECURITY

Chaoulli (15) originated in a motion for a declaratory judgment that Quebec's legislative prohibition on private health insurance was contrary to both Quebec's Charter of human rights and freedoms (16) and the Canadian Charter. …

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