SUPREME
COURT OF CANADA
Between:
Jacques Chaoulli and George Zeliotis
Appellants
v.
Attorney General of Quebec and Attorney General of
Canada
Respondents
‑ and ‑
Attorney General of Ontario, Attorney General of
New Brunswick, Attorney General for Saskatchewan,
Augustin
Roy, Senator Michael Kirby, Senator Marjory
Lebreton,
Senator Catherine Callbeck, Senator Joan Cook,
Senator Jane
Cordy, Senator Joyce Fairbairn, Senator Wilbert
Keon,
Senator Lucie Pépin, Senator Brenda Robertson and Senator
Douglas Roche, Canadian Medical Association and
Canadian
Orthopaedic Association, Canadian Labour Congress,
Charter
Committee on Poverty Issues and Canadian Health
Coalition,
Cambie Surgeries Corp., False Creek Surgical Centre
Inc.,
Delbrook Surgical Centre Inc., Okanagan Plastic
Surgery
Centre Inc., Specialty MRI Clinics Inc., Fraser
Valley MRI
Ltd., Image One MRI Clinic Inc., McCallum Surgical
Centre
Ltd., 4111044 Canada Inc., South Fraser Surgical
Centre Inc.,
Victoria Surgery Ltd., Kamloops Surgery Centre Ltd.,
Valley
Cosmetic Surgery Associates Inc., Surgical Centres
Inc.,
British Columbia Orthopaedic Association and British
Columbia
Anesthesiologists Society
Interveners
Official English
Translation: Reasons of Deschamps J.
Coram:
McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.
Reasons for
Judgment:
(paras. 1 to 101)
Joint reasons
concurring in the result:
(paras. 102 to 160)
Joint dissenting
reasons:
(paras. 161 to 279)
|
Deschamps J.
McLachlin C.J. and Major J. (Bastarache J. concurring)
Binnie and LeBel JJ. (Fish J. concurring)
|
______________________________
Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791,
2005 SCC 35
Jacques Chaoulli and George Zeliotis Appellants
v.
Attorney General of Quebec and Attorney General of Canada Respondents
and
Attorney General of Ontario, Attorney General of
New Brunswick, Attorney General for Saskatchewan,
Augustin Roy, Senator Michael Kirby, Senator
Marjory Lebreton,
Senator Catherine Callbeck, Senator Joan Cook, Senator
Jane Cordy,
Senator Joyce Fairbairn, Senator Wilbert Keon, Senator
Lucie Pépin,
Senator Brenda Robertson and Senator
Douglas Roche, Canadian
Medical Association and Canadian Orthopaedic Association,
Canadian Labour Congress, Charter Committee on Poverty Issues
and Canadian Health Coalition, Cambie Surgeries Corp., False
Creek Surgical Centre Inc., Delbrook Surgical Centre Inc.,
Okanagan Plastic Surgery Centre Inc., Specialty MRI Clinics Inc.,
Fraser Valley MRI Ltd., Image One MRI Clinic Inc., McCallum
Surgical Centre Ltd., 4111044 Canada Inc., South Fraser Surgical
Centre Inc., Victoria Surgery Ltd., Kamloops Surgery Centre Ltd.,
Valley Cosmetic Surgery Associates Inc., Surgical Centres Inc.,
British Columbia Orthopaedic Association and British Columbia
Anesthesiologists Society Interveners
Indexed as: Chaoulli v.
Quebec (Attorney General)
Neutral citation: 2005 SCC 35.
File No.: 29272.
2004: June 8; 2005: June 9.
Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel,
Deschamps and Fish JJ.
on appeal from the court of appeal for quebec
Human rights — Right to life and to personal
inviolability — Waiting times in public health system — Provincial legislation
prohibiting Quebec residents from taking out insurance to obtain in private
sector health care services already available under Quebec’s public health care
plan — Prohibition depriving Quebec residents of access to private health care
services not coming with waiting times inherent in public system — Whether
prohibition infringing rights to life and to personal inviolability guaranteed
by s. 1 of Charter of Human Rights and Freedoms — If so, whether
infringement can be justified under s. 9.1 of Charter — Charter of Human
Rights and Freedoms, R.S.Q., c. C‑12, ss. 1, 9.1 — Health
Insurance Act, R.S.Q., c. A‑29, s. 15 — Hospital Insurance Act,
R.S.Q., c. A‑28, s. 11.
Constitutional law — Charter of Rights — Right to
life, liberty and security of person — Fundamental justice — Waiting times in
public health system — Provincial legislation prohibiting Quebec residents from
taking out insurance to obtain in private sector health care services already
available under Quebec’s public health care plan — Prohibition depriving Quebec
residents of access to private health care services not coming with waiting
times inherent in public system — Whether prohibition constituting deprivation
of rights to life, liberty and security of person guaranteed by s. 7 of
Canadian Charter of Rights and Freedoms and, if so, whether deprivation in
accordance with principles of fundamental justice — If there violation, whether
it can be justified under s. 1 of Charter — Canadian Charter of Rights and
Freedoms, ss. 1 , 7 — Health Insurance Act, R.S.Q., c. A‑29,
s. 15 — Hospital Insurance Act, R.S.Q., c. A‑28, s. 11.
Over the years, Z experienced a number of health
problems that prompted him to speak out against waiting times in Quebec’s
public health care system. C is a physician who has tried unsuccessfully to
have his home‑delivered medical activities recognized and to obtain a
licence to operate an independent private hospital. By means of a motion for a
declaratory judgment, the appellants, Z and C, contested the validity of the
prohibition on private health insurance provided for in s. 15 of the Health
Insurance Act (“HEIA”) and s. 11 of the Hospital Insurance
Act (“HOIA”). They contended that the prohibition deprives them of
access to health care services that do not come with the waiting times inherent
in the public system. They claimed, inter alia, that s. 15 HEIA
and s. 11 HOIA violate their rights under s. 7 of the Canadian
Charter of Rights and Freedoms and s. 1 of the Quebec Charter of
Human Rights and Freedoms. The Superior Court dismissed the motion for a
declaratory judgment. In the court’s view, even though the appellants had
demonstrated a deprivation of the rights to life, liberty and security of the
person guaranteed by s. 7 of the Canadian Charter , this deprivation
was in accordance with the principles of fundamental justice. The Court of
Appeal affirmed that decision.
Held (Binnie, LeBel and
Fish JJ. dissenting): The appeal should be allowed.
Section 15 HEIA and s. 11 HOIA are inconsistent with
the Quebec Charter.
Per Deschamps
J.: 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. Given the absence in s. 1 of the Quebec Charter of the
reference to the principles of fundamental justice found in s. 7 of the Canadian
Charter , the scope of the Quebec Charter is potentially broader than
that of the Canadian Charter , and this characteristic should not be
disregarded. What is more, it is clear that the protection of s. 1 of the
Quebec Charter is not limited to situations involving the administration
of justice. [26-33]
In the instant case, the trial judge’s conclusion that
s. 11 HOIA and s. 15 HEIA constitute a deprivation of
the rights to life and security of the person protected by s. 7 of the Canadian
Charter applies in full to the rights to life and to personal inviolability
protected by s. 1 of the Quebec Charter. The evidence shows that,
in the case of certain surgical procedures, the delays that are the necessary
result of waiting lists increase the patient’s risk of mortality or the risk
that his or her injuries will become irreparable. The evidence also shows that
many patients on non‑urgent waiting lists are in pain and cannot fully
enjoy any real quality of life. The right to life and to personal
inviolability is therefore affected by the waiting times. [38-43]
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. [49-58] [68] [83-84]
This is not a case in which the Court must show
deference to the government’s choice of measure. The courts have a duty to
rise above political debate. When, as in the case at bar, the courts are given
the tools they need to make a decision, they should not hesitate to assume
their responsibilities. Deference cannot lead the judicial branch to abdicate
its role in favour of the legislative branch or the executive branch. While
the government has the power to decide what measures to adopt, it cannot choose
to do nothing in the face of a violation of Quebeckers’ right to security. Inertia
cannot be used as an argument to justify deference. [87-89] [97]
Per McLachlin C.J. and
Major and Bastarache JJ.: The conclusion of Deschamps J.
that the prohibition on private health insurance violates s. 1 of the Quebec
Charter and is not justifiable under s. 9.1 is agreed with. The
prohibition also violates s. 7 of the Canadian Charter and is not
justifiable under s. 1. [102]
While the decision about the type of health care
system Quebec should adopt falls to the legislature of that province, the
resulting legislation, like all laws, must comply with the Canadian Charter .
Here, it is common ground that the effect of the prohibition on private health
insurance set out in s. 11 HOIA and s. 15 HEIA is to
allow only the very rich, who can afford private health care without need of
insurance, to secure private care in order to avoid any delays in the public
system. Given the prohibition, most Quebeckers have no choice but to accept
any delays in the public health regime and the consequences this entails.
[104-111] [119]
The evidence in this case shows that delays in the
public health care system are widespread, and that, in some serious cases,
patients die as a result of waiting lists for public health care. The evidence
also demonstrates that the prohibition against private health insurance and its
consequence of denying people vital health care result in physical and
psychological suffering that meets a threshold test of seriousness. [112] [123]
Where lack of timely health care can result in death,
the s. 7 protection of life is engaged; where it can result in serious
psychological and physical suffering, the s. 7 protection of security of
the person is triggered. In this case, the government has prohibited private
health insurance that would permit ordinary Quebeckers to access private health
care while failing to deliver health care in a reasonable manner, thereby
increasing the risk of complications and death. In so doing, it has interfered
with the interests protected by s. 7 of the Canadian Charter .
[123-124]
Section 11 HOIA and s. 15 HEIA
are arbitrary, and the consequent deprivation of the interests protected by
s. 7 is therefore not in accordance with the principles of fundamental
justice. In order not to be arbitrary, a limit on life, liberty or security of
the person requires not only a theoretical connection between the limit and the
legislative goal, but a real connection on the facts. The task of the courts,
on s. 7 issues as on others, is to evaluate the issue in the light, not
just of common sense or theory, but of the evidence. Here, the evidence on the
experience of other western democracies with public health care systems that
permit access to private health care refutes the government’s theory that a
prohibition on private health insurance is connected to maintaining quality
public health care. It does not appear that private participation leads to the
eventual demise of public health care. [126-131] [139] [149-150]
The breach of s. 7 is not justified under
s. 1 of the Canadian Charter . The government undeniably has an
interest in protecting the public health regime but, given that the evidence
falls short of demonstrating that the prohibition on private health insurance
protects the public health care system, a rational connection between the
prohibition on private health insurance and the legislative objective is not
made out. In addition, on the evidence, the prohibition goes further than
would be necessary to protect the public system and is thus not minimally
impairing. Finally, the benefits of the prohibition do not outweigh its
deleterious effects. The physical and psychological suffering and risk of
death that may result from the prohibition on private health insurance outweigh
whatever benefit — and none has been demonstrated here — there may be to the
system as a whole. [154-157]
Per Binnie, LeBel and
Fish JJ. (dissenting): 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. [161]
Canadian Charter interests
under s. 7 are enumerated as life, liberty and security of the person.
The trial judge found that the current state of the Quebec health system,
linked to the prohibition against health insurance for insured services, is
capable, at least in the cases of some individuals on some occasions, of
putting at risk their life or security of the person. The courts can use
s. 7 of the Canadian Charter to pre‑empt the ongoing public
debate only if the current health plan violates an established “principle of
fundamental justice”. That is not the case here. [164] [200]
The public policy objective of “health care of a
reasonable standard within a reasonable time” is not a legal principle of
fundamental justice. There is no “societal consensus” about what this non‑legal
standard means or how to achieve it. It will be very difficult for those
designing and implementing a health plan to predict when judges will think its
provisions cross the line from what is “reasonable” into the forbidden
territory of what is “unreasonable”. [209]
A deprivation of a right will be arbitrary, and will
thus infringe s. 7 , if it bears no relation to, or is inconsistent with,
the state interest that lies behind the legislation. Quebec’s legislative
objective is to provide high‑quality health care, at a reasonable cost,
for as many people as possible in a manner that is consistent with principles
of efficiency, equity and fiscal responsibility. An overbuilt health system is
no more in the larger public interest than a system that on occasion falls
short. [232-236]
The Quebec health plan shares the policy objectives of
the Canada Health Act , and the means adopted by Quebec to implement
these objectives are not arbitrary. In principle, Quebec wants a health system
where access is governed by need rather than wealth or status. To accomplish
this objective, Quebec seeks to discourage the growth of private sector
delivery of “insured” services based on wealth and insurability. The
prohibition is thus rationally connected to Quebec’s objective and is not
inconsistent with it. In practical terms, Quebec bases the prohibition on the
view that private insurance, and a consequent major expansion of private health
services, would have a harmful effect on the public system. [237-240]
The view of the evidence taken by the trial judge
supports that belief. She found that the expansion of private health care
would undoubtedly have a negative impact on the public health system. The
evidence indicates that a parallel private system will not reduce, and may
worsen, the public waiting lists and will likely result in a decrease in
government funding for the public system. In light of these findings, it cannot
be said that the prohibition against private health insurance “bears no
relation to, or is inconsistent with” the preservation of a health system
predominantly based on need rather than wealth or status. Prohibition of
private insurance is not “inconsistent” with the State interest; still less is
it “unrelated” to it. People are free to dispute Quebec’s strategy, but it
cannot be said that the province’s version of a single‑tier health
system, and the prohibition on private health insurance designed to protect
that system, is a legislative choice that has been adopted “arbitrarily” by the
Quebec National Assembly as that term has been understood to date in the Canadian
Charter jurisprudence. [235-248] [256-258]
The limits on legislative action fixed by the Quebec
Charter are no more favourable to the appellants’ case than are those fixed
by the Canadian Charter . Section 1 of the Quebec Charter, in
essence, covers about the same ground as s. 7 of the Canadian Charter ,
but it does not mention the principles of fundamental justice. Here, the
prohibition against private insurance is justifiable under s. 9.1 of the Quebec
Charter, which requires rights to be exercised with “proper regard” to
“democratic values, public order and the general well‑being of the
citizens of Québec”. On the evidence, the exercise by the appellants of their
claimed Quebec Charter rights to defeat the prohibition against private
insurance would not have proper regard for “democratic values” or “public
order”, as the future of a publicly supported and financed single‑tier
health plan should be in the hands of elected representatives. Nor would it
have proper regard for the “general well‑being of the citizens of
Québec”, who are the designated beneficiaries of the health plan, and in
particular for the well‑being of the less advantaged Quebeckers. 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. [179] [271-276]
The safety valve (however imperfectly administered) of
allowing Quebec residents to obtain essential health care outside the province
when they are unable to receive the care in question at home in a timely manner
is of importance. If, as the appellants claim, this safety valve is opened too
sparingly, the courts are available to supervise enforcement of the rights of
those patients who are directly affected by the decision on a case‑by‑case
basis. [264]
Cases Cited
By Deschamps J.
Applied: Minister
of Justice of Canada v. Borowski, [1981]
2 S.C.R. 575; R. v. Oakes, [1986] 1 S.C.R. 103; referred
to: Eldridge v. British Columbia (Attorney General),
[1997] 3 S.C.R. 624; YMHA Jewish Community Centre of Winnipeg Inc.
v. Brown, [1989] 1 S.C.R. 1532; Law Society of Upper Canada v.
Skapinker, [1984] 1 S.C.R. 357; Singh v. Minister of
Employment and Immigration, [1985] 1 S.C.R. 177; Gosselin v.
Quebec (Attorney General), [2002] 4 S.C.R. 429,
2002 SCC 84; R. v. Collins, [1987] 1 S.C.R. 265; Rio
Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987]
2 S.C.R. 59; Operation Dismantle Inc. v. The Queen, [1985]
1 S.C.R. 441; Quebec (Public Curator) v. Syndicat national des
employés de l’hôpital St‑Ferdinand, [1996] 3 S.C.R. 211; R.
v. Morgentaler, [1988] 1 S.C.R. 30; Rodriguez v. British
Columbia (Attorney General), [1993] 3 S.C.R. 519; New
Brunswick (Minister of Health and Community Services) v. G. (J.), [1999]
3 S.C.R. 46; Blencoe v. British Columbia (Human Rights Commission),
[2000] 2 S.C.R. 307, 2000 SCC 44; Ford v. Quebec (Attorney
General), [1988] 2 S.C.R. 712; Egan v. Canada, [1995]
2 S.C.R. 513; Charles Bentley Nursing Home Inc. v. Ministre des
Affaires sociales, [1978] C.S. 30; Hunter v. Southam Inc.,
[1984] 2 S.C.R. 145; Vriend v. Alberta, [1998]
1 S.C.R. 493; Reference re Secession of Quebec, [1998]
2 S.C.R. 217; Irwin Toy Ltd. v. Quebec (Attorney General),
[1989] 1 S.C.R. 927; RJR‑MacDonald Inc. v. Canada (Attorney
General), [1995] 3 S.C.R. 199.
By McLachlin C.J. and Major J.
Applied: R. v.
Morgentaler, [1988] 1 S.C.R. 30; Rodriguez
v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; referred
to: Re B.C. Motor Vehicle Act, [1985]
2 S.C.R. 486; Amax Potash Ltd. v. Government of Saskatchewan,
[1977] 2 S.C.R. 576; R. v. Malmo‑Levine, [2003]
3 S.C.R. 571, 2003 SCC 74; New Brunswick (Minister of
Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; R. v. Oakes,
[1986] 1 S.C.R. 103.
By Binnie and LeBel JJ. (dissenting)
Auton (Guardian ad litem of) v. British Columbia
(Attorney General), [2004] 3 S.C.R. 657,
2004 SCC 78; B. (R.) v. Children’s Aid Society of Metropolitan
Toronto, [1995] 1 S.C.R. 315; R. v. Morgentaler, [1988]
1 S.C.R. 30; R. v. Malmo‑Levine, [2003]
3 S.C.R. 571, 2003 SCC 74; Vriend v. Alberta, [1998]
1 S.C.R. 493; Minister of Justice of Canada v. Borowski,
[1981] 2 S.C.R. 575; Canadian Council of Churches v. Canada
(Minister of Employment and Immigration), [1992] 1 S.C.R. 236;
Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429,
2002 SCC 84; Reference re ss. 193 and 195.1(1)(c) of the
Criminal Code (Man.), [1990] 1 S.C.R. 1123; Blencoe v. British
Columbia (Human Rights Commission), [2000] 2 S.C.R. 307,
2000 SCC 44; Winnipeg Child and Family Services v. K.L.W.,
[2000] 2 S.C.R. 519, 2000 SCC 48; Re B.C. Motor Vehicle
Act, [1985] 2 S.C.R. 486; Lochner v. New York,
198 U.S. 45 (1905); West Coast Hotel Co. v. Parrish,
300 U.S. 379 (1937); R. v. Edwards Books and Art Ltd., [1986]
2 S.C.R. 713; Rodriguez v. British Columbia (Attorney General),
[1993] 3 S.C.R. 519; New Brunswick (Minister of Health and
Community Services) v. G. (J.), [1999] 3 S.C.R. 46; Canadian
Foundation for Children, Youth and the Law v. Canada (Attorney General),
[2004] 1 S.C.R. 76, 2004 SCC 4; Stein v. Tribunal
administratif du Québec, [1999] R.J.Q. 2416; Housen v. Nikolaisen,
[2002] 2 S.C.R. 235, 2002 SCC 33; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Godbout v. Longueuil (Ville de),
[1995] R.J.Q. 2561.
Statutes and Regulations Cited
Act respecting health services
and social services, R.S.Q., c. S‑4.2,
ss. 5, 316, 346, 347 to 349, 350, 351, 352 to 370, 376 to 385, 437.
Alberta Health Care Insurance
Act, R.S.A. 2000, c. A‑20,
s. 9(1).
Canada Health Act, R.S.C. 1985, c. C‑6, s. 3 .
Canadian Bill of Rights, R.S.C. 1985, App. III.
Canadian Charter of Rights and
Freedoms, ss. 1 , 7 , 8 to 14 , 12 , 15 , 24 .
Charter of Human Rights and
Freedoms, R.S.Q., c. C‑12, preamble,
ss. 1 , 9.1, 52.
Civil Code of Québec, S.Q. 1991, c. 64, arts. 1417, 1457, 1458.
Code of Civil Procedure, R.S.Q., c. C‑25, art. 55.
Constitution Act, 1867, ss. 91(11) , 92(7) , (13) , (16) .
Constitution Act, 1982, s. 52 .
General Regulation — Medical
Services Payment Act, N.B. Reg. 84‑20,
Sch. 2, s. (n.1).
Health Care Accessibility Act, R.S.O. 1990, c. H.3, s. 2.
Health Insurance Act, R.S.Q., c. A‑29, ss. 1(d), (e), (f),
3, 10, 15, 22, 30.
Health Services and Insurance
Act, R.S.N.S. 1989, c. 197, s. 29(2).
Health Services Insurance Act, R.S.M. 1987, c. H35, s. 95(1).
Health Services Payment Act, R.S.P.E.I. 1988, c. H‑2, ss. 10, 10.1, 14.1.
Hospital Insurance Act, R.S.Q., c. A‑28, ss. 2, 11.
Medical Care Insurance Act,
1999, S.N.L. 1999, c. M‑5.1,
s. 10(5).
Medical Care Insurance Insured
Services Regulations, C.N.L.R. 21/96,
s. 3.
Medical Services Payment Act, R.S.N.B. 1973, c. M‑7, s. 2.01(a).
Medicare Protection Act, R.S.B.C. 1996, c. 286, s. 18(2).
Regulation respecting the
application of the Health Insurance Act,
R.R.Q. 1981, c. A‑29, ss. 23.1, 23.2.
Saskatchewan Medical Care
Insurance Act, R.S.S. 1978, c. S‑29,
s. 18(1.1).
Authors Cited
Armstrong, Wendy. The Consumer
Experience with Cataract Surgery and Private Clinics in Alberta: Canada’s
Canary in the Mine Shaft. Edmonton: Consumers’ Association of
Canada (Alberta), 2000.
Bergman, Howard. Expertise
déposée par Howard Bergman, novembre 1998.
Brunelle, Yvon. Aspects
critiques d’un rationnement planifié. Québec: Ministère de la Santé et
des Services sociaux, Direction de l’Évaluation, novembre 1993.
Canada. Commission on the Future
of Health Care in Canada. Building on Values: The Future of
Health Care in Canada: Final Report. Ottawa: The
Commission, 2002.
Canada. Department of Finance. Federal
Support for Health Care: The Facts. Ottawa: Department of
Finance, September 2004.
Canada. Health Canada. Waiting
Lists and Waiting Times for Health Care in Canada: More
Management!! More Money?? Ottawa: Health Canada, 1998.
Canada. National Advisory Council
on Aging. The NACA Position on the Privatization of Health Care.
Ottawa: NACA, 1997.
Canada. Royal Commission on
Health Services. Voluntary Medical Insurance and Prepayment.
Ottawa: Queen’s Printer, 1965.
Canada. Senate. The Health of
Canadians — The Federal Role. Final Report of the Standing Senate
Committee on Social Affairs, Science and Technology. Ottawa: The Senate,
2002.
Canada. Senate. The Health of
Canadians — The Federal Role. Interim Report of the Standing Senate
Committee on Social Affairs, Science and Technology. Ottawa: The
Senate, 2001-2002.
Canada. Statistics Canada.
Health Analysis and Measurement Group. Access to Health Care Services in
Canada, 2001. By Claudia Sanmartin, Christian Houle, Jean‑Marie Berthelot
and Kathleen White. Ottawa: Statistics Canada, 2002.
Canadian Health Services Research
Foundation. Mythbusters — Myth: A parallel private system
would reduce waiting times in the public system.
Ottawa: Canadian Health Services Research Foundation, 2001.
Canadian Institute for
Information. National Health Expenditure Trends, 1975-2003.
Ottawa: The Institute, 2003, Figure 13.
Choudhry, Sujit, and
Robert Howse. “Constitutional Theory and The Quebec Secession Reference”
(2000), 13 Can. J. L. & Jur. 143.
Davidov, Guy. “The Paradox of
Judicial Deference” (2000‑2001), 12 N.J.C.L. 133.
DeCoster, Carolyn,
Leonard MacWilliam and Randy Walld. Waiting Times for
Surgery: 1997/98 and 1998/99 Update.
Winnipeg: Manitoba Centre for Health Policy and Evaluation,
University of Manitoba, 2000.
DeNavas‑Walt, Carmen,
Bernadette D. Proctor and Robert J. Mills. Income,
Poverty, and Health Insurance Coverage in the United States: 2003. U.S.
Census Bureau, Washington: U.S. Government Printing Office, 2004.
Denis, Jean‑Louis. Un avenir
pour le système public de santé. Conférence régionale de l’Institut
canadien de la retraite et des avantages sociaux “Notre système de santé, peut‑on
se le permettre?”, septembre 1998.
Hogg, Peter W. Constitutional
Law of Canada, vol. 1, loose‑leaf ed. Scarborough,
Ont.: Carswell, 1997 (updated 2004, release 1).
Hurley, Jeremiah, et al. Parallel
Private Health Insurance in Australia: A Cautionary Tale and Lessons
for Canada. Canberra: Centre for Economic Policy Research,
Research School of Social Sciences, Australian National University, 2002.
Laberge, A.,
P. M. Bernard and P. A. Lamarche. “Relationships between
the delay before surgery for a hip fracture, postoperative complications and
risk of death” (1997), 45 Rev. Epidém. et Santé Publ. 5.
Lajoie, Andrée. “L’impact des
Accords du Lac Meech sur le pouvoir de dépenser”, dans L’adhésion du Québec
à l’Accord du Lac Meech. Montréal: Thémis, 1988, 163.
Laverdière, Marco. “Le cadre
juridique canadien et québécois relatif au développement parallèle de services
privés de santé et l’article 7 de la Charte canadienne des droits et
libertés ” (1998‑1999), 29 R.D.U.S. 117.
Lewis, Steven, et al. “Ending
waiting‑list mismanagement: principles and practice” (2000), 162 C.M.A.J. 1297.
Marmor, Theodore R. Expert
Witness Report, November 1998.
Mayo, Nancy E., et al.
“Waiting time for breast cancer surgery in Quebec” (2001), 164 C.M.A.J. 1133.
Morel, André. “La coexistence des
Chartes canadienne et québécoise: problèmes d’interaction” (1986),
17 R.D.U.S. 49.
Quebec. Commission d’étude sur
les services de santé et les services sociaux. Emerging Solutions:
Report and Recommendations. Québec: La Commission, 2001.
Quebec. Conseil de la santé et du
bien‑être. Rapport: Le financement privé des services médicaux et
hospitaliers. Québec: Conseil de la santé et du bien‑être, 2003.
Quebec. La complémentarité du
secteur privé dans la poursuite des objectifs fondamentaux du système public de
santé au Québec: Constats et recommandations sur les pistes à
explorer: Synthèse. Québec: Gouvernement du Québec,
1999.
Quebec. La complémentarité du
secteur privé dans la poursuite des objectifs fondamentaux du système public de
santé au Québec: Rapport du groupe de travail. Québec: Gouvernement du
Québec, 1999.
Quebec. Ministère de la Santé et
des Services sociaux. Pour un régime d’assurance médicaments équitable et
viable. Québec: Ministère de la Santé et des Services sociaux, 2001.
Quebec. Ministère de la Santé et
des Services sociaux du Québec et ministère de l’Emploi et de la Solidarité de
la France. Health Indicators: International Comparisons: 15
years of Evolution: Canada, France, Germany, Québec, United Kingdom,
United States. Québec: Publications du Québec, 1998.
Quebec. Rapport de la
Commission d’enquête sur les services de santé et les services sociaux.
Québec: Publications du Québec, 1988.
Quebec. Report of the
Commission of Inquiry on Health and Social Welfare, vol. IV, Health,
t. 1, The Present Situation. Quebec: Government of Quebec, 1970.
Roach, Kent. “Dialogic Judicial
Review and its Critics” (2004), 23 Sup. Ct. L. Rev. (2d) 49.
Sanmartin, Claudia, et al.
“Waiting for medical services in Canada: lots of heat, but little light”
(2000), 162 C.M.A.J. 1305.
Tribe, Laurence H. American
Constitutional Law, vol. 1, 3rd ed. New
York: Foundation Press, 2000.
Tuohy, Carolyn Hughes,
Colleen M. Flood and Mark Stabile. “How Does Private Finance
Affect Public Health Care Systems? Marshaling the Evidence from OECD Nations”
(2004), 29 J. Health Pol. 359.
Turcotte, Fernand. Le temps
d’attente comme instrument de gestion du rationnement dans les services de
santé du Canada. Laval: Faculté de médecine, Université Laval,
novembre 1998.
World Health Organization. The
World Health Report 1999: Making a Difference. WHO, 1999.
Wright, Charles J. Waiting
Lists in Canada and the Potential Effects of Private Access to Health Care
Services. Report prepared for the Department of Justice, Canada, October 1998.
APPEAL from judgments of the Quebec Court of Appeal
(Brossard, Delisle and Forget JJ.A.), [2002] R.J.Q. 1205, [2002]
Q.J. No. 759 (QL) and [2002] Q.J. No. 763 (QL), affirming a decision
of Piché J., [2000] R.J.Q. 786, [2000] Q.J. No. 479 (QL).
Appeal allowed, Binnie, LeBel and Fish JJ. dissenting.
Jacques Chaoulli, on his own behalf.
Bruce W. Johnston and Philippe H. Trudel, for the appellant
George Zeliotis.
Patrice Claude, Robert Monette,
Dominique A. Jobin, Ariel G. Boileau and Manon Des Ormeaux,
for the respondent the Attorney General of Quebec.
Jean‑Marc Aubry, Q.C., and René LeBlanc, for the respondent the
Attorney General of Canada.
Janet E. Minor, Shaun Nakatsuru and Laurel Montrose, for
the intervener the Attorney General of Ontario.
Written submissions only by Gabriel Bourgeois,
Q.C., for the intervener the Attorney General of New Brunswick.
Written submissions only by Graeme G. Mitchell,
Q.C., for the intervener the Attorney General for Saskatchewan.
Written submissions only by the intervener
Augustin Roy.
Earl A. Cherniak, Q.C., Stanley H. Hartt, Q.C., Patrick J. Monahan
and Valerie D. Wise, for the interveners Senator
Michael Kirby, Senator Marjory Lebreton, Senator Catherine Callbeck,
Senator Joan Cook, Senator Jane Cordy, Senator Joyce Fairbairn,
Senator Wilbert Keon, Senator Lucie Pépin, Senator
Brenda Robertson and Senator Douglas Roche.
Guy J. Pratte,
Freya Kristjanson, Carole Lucock and Jean Nelson,
for the interveners the Canadian Medical Association and the Canadian
Orthopaedic Association.
Written submissions only by Steven Barrett,
Steven Shrybman, Ethan Poskanzer and Vanessa Payne,
for the intervener the Canadian Labour Congress.
Martha Jackman,
for the interveners the Charter Committee on Poverty Issues and the Canadian
Health Coalition.
Marvin R. V. Storrow, Q.C., and Peter W. Hogg, Q.C., for
the interveners Cambie Surgeries Corp., False Creek Surgical Centre Inc.,
Delbrook Surgical Centre Inc., Okanagan Plastic Surgery Centre Inc., Specialty
MRI Clinics Inc., Fraser Valley MRI Ltd., Image One MRI Clinic Inc., McCallum
Surgical Centre Ltd., 4111044 Canada Inc., South Fraser Surgical Centre Inc.,
Victoria Surgery Ltd., Kamloops Surgery Centre Ltd., Valley Cosmetic Surgery
Associates Inc., Surgical Centres Inc., the British Columbia Orthopaedic
Association and the British Columbia Anesthesiologists Society.
English version of the reasons delivered by
1
Deschamps J. — Quebeckers
are prohibited from taking out insurance to obtain in the private sector
services that are available under Quebec’s public health care plan. Is this
prohibition justified by the need to preserve the integrity of the plan?
2
As we enter the 21st century, health care is a constant concern.
The public health care system, once a source of national pride, has become the
subject of frequent and sometimes bitter criticism. This appeal does not
question the appropriateness of the state making health care available to all
Quebeckers. On the contrary, all the parties stated that they support this
kind of role for the government. Only the state can make available to all
Quebeckers the social safety net consisting of universal and accessible health
care. The demand for health care is constantly increasing, and one of the
tools used by governments to control this increase has been the management of
waiting lists. The choice of waiting lists as a management tool falls within
the authority of the state and not of the courts. The appellants do not claim
to have a solution that will eliminate waiting lists. Rather, they submit that
the delays resulting from waiting lists violate their rights under the Charter
of Human Rights and Freedoms, R.S.Q., c. C‑12 (“Quebec
Charter”), and the Canadian Charter of Rights and Freedoms (“Canadian
Charter ”). They contest the validity of the prohibition in Quebec, as
provided for in s. 15 of the Health Insurance Act, R.S.Q.,
c. A‑29 (“HEIA”), and s. 11 of the Hospital Insurance
Act, R.S.Q., c. A‑28 (“HOIA”), on private insurance for
health care services that are available in the public system. The appellants
contend that the prohibition deprives them of access to health care services
that do not come with the wait they face in the public system.
3
The two sections in issue read as follows:
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
In essence, the question is whether Quebeckers who are prepared to spend
money to get access to health care that is, in practice, not accessible in the
public sector because of waiting lists may be validly prevented from doing so
by the state. For the reasons that follow, I find that the prohibition
infringes the right to personal inviolability and that it is not justified by a
proper regard for democratic values, public order and the general well‑being
of the citizens of Quebec.
5
The validity of the prohibition is contested by the appellants,
George Zeliotis and Jacques Chaoulli. Over the years,
Mr. Zeliotis has experienced a number of health problems and has used
medical services that were available in the public system, including heart
surgery and a number of operations on his hip. The difficulties he encountered
prompted him to speak out against waiting times in the public health care
system. Mr. Chaoulli is a physician who has tried unsuccessfully to have
his home‑delivered medical activities recognized and to obtain a licence
to operate an independent private hospital. Mr. Zeliotis and
Mr. Chaoulli joined forces to apply to the court by way of motion for a
declaration that s. 15 HEIA and s. 11 HOIA are
unconstitutional and invalid. Mr. Chaoulli argues, first, that the
prohibition is within the federal government’s legislative jurisdiction in
relation to criminal law and, second, that the prohibition violates the rights
to life and to personal security, inviolability and freedom protected by
s. 1 of the Quebec Charter and ss. 7 , 12 and 15 of the Canadian
Charter . The respondents contested the motion both in the Superior Court
and in the Court of Appeal.
6
The Superior Court dismissed the motion for a declaratory judgment:
[2000] R.J.Q. 786. With respect to the province’s power to enact
s. 11 HOIA and s. 15 HEIA, Piché J. found that the
purpose of the prohibition is to discourage the development of parallel private
health care services and that it is not a criminal law matter.
7
On the subject of s. 7 of the Canadian Charter , she noted
that according to this Court, its scope may include certain economic rights
that are intimately connected with the right to life, liberty and security of
the person. She found that the appellants had demonstrated a deprivation of
the right to life, liberty and security of the person within the meaning of
s. 7 of the Canadian Charter . Piché J. then considered
whether this deprivation was in accordance with the principles of fundamental
justice. She was of the opinion that the purpose of the HOIA and the HEIA
is to establish a public health system that is available to all residents of
Quebec. The purpose of s. 11 HOIA and s. 15 HEIA is to
guarantee that virtually all of Quebec’s existing health care resources will be
available to all residents of Quebec. In her opinion, the enactment of these
provisions was motivated by considerations of equality and human dignity. She
found no conflict with the general values expressed in the Canadian Charter
or in the Quebec Charter. She did find that waiting lists are long and
the health care system must be improved and transformed. In her opinion,
however, the expert testimony could not serve to establish with certainty that
a parallel health care system would solve all the current problems of waiting
times and access.
8
In light of her conclusion regarding s. 7 of the Canadian
Charter , Piché J. did not address the question of justification
pursuant to s. 1 of the Canadian Charter . However, she did express
the opinion that the s. 1 analysis would show that the impugned provisions
constitute a reasonable limit in a free and democratic society. Although the
arguments based on the Quebec Charter were raised formally and expressly
argued, and although this ground was mentioned at the start of the judgment,
Piché J. did not address them in her analysis.
9
With respect to s. 12 of the Canadian Charter , Piché J.
found that the state’s role with regard to the prohibitions is not sufficiently
active for the prohibitions to be considered a “treatment” within the meaning
of the Canadian Charter .
10
The argument based on s. 15 of the Canadian Charter relates
to place of residence. The prohibition does not apply to non‑residents
but does apply to residents. Piché J. found that in the circumstances of
this case, place of residence is not used to devalue certain individuals or to
perpetuate stereotypes. She found that the guarantee of protection against
discrimination had not been violated.
11
The Court of Appeal dismissed the
appeal: [2002] R.J.Q. 1205. The three judges wrote
separate reasons. Delisle J.A. considered all the arguments addressed by
the Superior Court. He disagreed with Piché J. regarding s. 7 of the
Canadian Charter . According to Delisle J.A., the right affected by
s. 11 HOIA and s. 15 HEIA is an economic right and is
not fundamental to an individual’s life. In addition, in his opinion, the
appellants had not demonstrated a real, imminent or foreseeable deprivation.
He was also of the view that s. 7 of the Canadian Charter may not
be raised to challenge a societal choice in court. Forget J.A.
essentially agreed with the Superior Court judge. Like Piché J., he found
that the appellants had demonstrated a deprivation of their rights under
s. 7 of the Canadian Charter , but that this deprivation was in
accordance with the principles of fundamental justice. Brossard J.A.
agreed with Delisle J.A. regarding the economic nature of the right
affected by s. 11 HOIA and s. 15 HEIA. However, he
felt that a risk to life or security resulting from a delay in obtaining
medical services would constitute a deprivation within the meaning of s. 7
of the Canadian Charter . He declined to express an opinion as to
whether this deprivation was in accordance with the principles of fundamental
justice. Although the arguments based on the Quebec Charter were
mentioned in the notice of appeal and in Delisle J.A.’s statement of the
grounds of appeal, none of the Court of Appeal judges addressed them.
12
The arguments based on the Quebec Charter were expressly raised
before this Court.
13
Given that I have had the opportunity to read the reasons of Binnie and
LeBel JJ., I think it would be appropriate to highlight the main points on
which we agree and disagree before addressing the issues raised by the
appellants.
14
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.
15
To put the problem in context, the legislative framework of the impugned
provisions must first be explained. Considering the provisions in their
legislative context will make it possible to address the division of powers
argument. I will then explain why, in my opinion, the case must first be considered
from the standpoint of the Quebec Charter. Next, I will examine the
appeal from the standpoint of s. 1 of the Quebec Charter before
considering whether the prohibition is justified under s. 9.1 of the Quebec
Charter. Because I conclude that the Quebec Charter has been
violated, it will not be necessary for me to consider the arguments based on
the Canadian Charter .
I. Legislative
Context
16
Although the federal government has express jurisdiction over certain
matters relating to health, such as quarantine, and the establishment and
maintenance of marine hospitals (s. 91(11) of the Constitution Act,
1867 ), it is in practice that it imposes its views on the provincial
governments in the health care sphere by means of its spending power: Eldridge
v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at
para. 25; YMHA Jewish Community Centre of Winnipeg Inc. v. Brown,
[1989] 1 S.C.R. 1532, at p. 1548; see
also: P. W. Hogg, Constitutional Law of Canada
(loose‑leaf ed.), vol. 1, at p. 6‑15; A. Lajoie,
“L’impact des Accords du Lac Meech sur le pouvoir de dépenser”, in L’adhésion
du Québec à l’Accord du Lac Meech (1988), 163, at pp. 164 et
seq. In order to receive federal funds, a provincial plan must conform to
the principles set out in the Canada Health Act, R.S.C. 1985,
c. C‑6 : it must be administered publicly, it must be
comprehensive and universal, it must provide for portability from one province
to another and it must be accessible to everyone. These broad principles have
become the hallmarks of Canadian identity. Any measure that might be perceived
as compromising them has a polarizing effect on public opinion. The debate
about the effectiveness of public health care has become an emotional one. The
Romanow Report stated that the Canada Health Act has achieved an iconic
status that makes it untouchable by politicians (Building on Values: The
Future of Health Care in Canada: Final Report (2002) (Romanow
Report), at p. 60). The tone adopted by my colleagues Binnie and LeBel JJ.
is indicative of this type of emotional reaction. It leads them to
characterize the debate as pitting rich against poor when the case is really
about determining whether a specific measure is justified under either the Quebec
Charter or the Canadian Charter . I believe that it is essential to
take a step back and consider these various reactions objectively. The Canada
Health Act does not prohibit private health care services, nor does it
provide benchmarks for the length of waiting times that might be regarded as
consistent with the principles it lays down, and in particular with the
principle of real accessibility.
17
In reality, a large proportion of health care is delivered by the
private sector. First, there are health care services in respect of which the
private sector acts, in a sense, as a subcontractor and is paid by the state.
There are also many services that are not delivered by the state, such as home
care or care provided by professionals other than physicians. In 2001, private
sector services not paid for by the state accounted for nearly 30 percent
of total health care spending (Canadian Institute for Health Information, National
Health Expenditure Trends, 1975-2003 (2003), at p. 16, Figure 13, “Public
and Private Shares of Total Health Expenditure, by Use of Funds, Canada,
2001”). In the case of private sector services that are not covered by the
public plan, Quebeckers may take out private insurance without the spectre of
the two‑tier system being evoked. The Canada Health Act is therefore
only a general framework that leaves considerable latitude to the provinces.
In analysing the justification for the prohibition, I will have occasion to
briefly review some of the provisions of Canada’s provincial plans. The range
of measures shows that there are many ways to deal with the public
sector/private sector dynamic without resorting to a ban.
18
The basis for provincial jurisdiction over health care is more clear.
The Constitution Act, 1867 provides that the provinces have jurisdiction
over matters of a local or private nature (s. 92(16) ), property and civil
rights (s. 92(13) ), and the establishment of hospitals, asylums,
charities and eleemosynary institutions (s. 92(7) ). In Quebec, health
care services are delivered pursuant to the Act respecting health services
and social services, R.S.Q., c. S‑4.2 (“AHSSS”). The AHSSS
regulates the institutions where health care services are delivered and sets
out the principles that guide the delivery of such services in Quebec. For
example, under s. 5 AHSSS, Quebeckers are “entitled to receive,
with continuity and in a personalized and safe manner, health services and
social services which are scientifically, humanly and socially appropriate”.
19
The other two main legislative instruments that govern the health care
system in Quebec are the HOIA and the HEIA. The HOIA
establishes access to hospital services in Quebec; it also regulates
hospitals. The purpose of the HEIA is to ensure that Quebeckers have
access to certain medical services that they need for health reasons.
20
Before discussing the effect of waiting times on human rights, I will
address the question of whether the province has the power to impose a
prohibition on private insurance.
II. Validity of the
Prohibition in Relation to Provincial Jurisdiction
21
The appellant Chaoulli argues that the prohibition is a criminal law
matter. In his submission, it was adopted because the provincial government of
the time wished to impose an egalitarian system and to eliminate the
opportunity for profit in the provision of health care services. He contends
that the operation of a health care service for profit was regarded at that
time as socially undesirable.
22
If the Court is to accept this argument, it must find, first, that the
effect of the prohibition on private insurance is to exclude the private sector
and, second, that the main purpose of excluding the private sector, as distinct
from the overall purpose of the HOIA and the HEIA, is to avert
criminal conduct.
23
The Superior Court judge found that the purpose of the prohibition is to
ensure that health care is available [translation]
“by significantly limiting access to, and the profitability of, the private
system in Quebec” (p. 812). I will review later in these reasons the
evidence accepted by the Superior Court judge in finding that the prohibition
is useful having regard to the intended purpose, and so for the moment I
reserve comment on this point. It is sufficient, at the stage of
identification of the intended purpose, to determine whether ensuring access to
health care services by limiting access to the private system is a valid
objective for the provincial government. 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.
24
It is difficult to see the argument that the provision of parallel
private sector services was perceived as being socially undesirable as an
independent objective, unconnected with the social policy pursued by the
government in the area of health care. The appellants were alone in contending
that the purpose of the prohibition was to eliminate morally reprehensible
conduct. The Attorney General of Quebec argued that the prohibition resulted
from a desire to pool the financial resources available for health care. This
explanation coincides with the objective identified by the Superior Court
judge, which is not, strictly speaking, a criminal law objective. Rather, it
is a social objective that the provincial legislature may pursue in accordance
with the powers conferred on it by s. 92 of the Constitution Act, 1867 .
In my opinion, the argument that the provincial government has trenched on the
federal criminal law power cannot succeed.
III. Priority Given to
Arguments Based on the Quebec Charter
25
The Canadian Charter is neither an ordinary statute nor an
extraordinary statute like the Canadian Bill of Rights,
R.S.C. 1985, App. III. It is a part of the Constitution: Law
Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, at
p. 365. As a result, the Canadian Charter is different from the Quebec
Charter in that the Quebec Charter is the product of the legislative
will of Quebec’s National Assembly. In addition, while the Quebec Charter
has no constitutional dimension, it is also different from ordinary statutes by
virtue of its considerably broader purpose: to guarantee respect for human
beings (see A. Morel, “La coexistence des Chartes canadienne et
québécoise: problèmes d’interaction” (1986), 17 R.D.U.S. 49).
The Quebec Charter protects not only the fundamental rights and
freedoms, but also certain civil, political, economic and social rights. By
virtue of s. 52 , Quebec courts have the power to review legislation to
determine whether it is consistent with the rules set out in the Quebec Charter.
The Quebec Charter has an identity that is independent of the statutes
of Quebec.
26
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
are susceptible of producing cumulative effects, but where the rules are not
identical. This is the approach suggested by Beetz J. in Singh v.
Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at
p. 224:
Thus, the Canadian Bill of Rights retains
all its force and effect, together with the various provincial charters of
rights. Because these constitutional or quasi‑constitutional instruments
are drafted differently, they are susceptible of producing cumulative effects
for the better protection of rights and freedoms. But this beneficial result
will be lost if these instruments fall into neglect.
27
In the instant case, s. 7 of the Canadian Charter and
s. 1 of the Quebec Charter have numerous points in common:
Canadian
Charter
7. Everyone has the right to life, liberty
and security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
Quebec Charter
1. Every human being has a right to life, and to personal
security, inviolability and freedom.
28
The similarities between these two provisions probably explain in part
why the Superior Court and the Court of Appeal considered only the Canadian
Charter in their decisions. With regard to certain aspects of the two
charters, the law is the same. For example, the wording of the right to life
and liberty is identical. It is thus appropriate to consider the two
together. Distinctions must be made, however, and I believe that it is
important to begin by considering the specific protection afforded by the Quebec
Charter for the reason that it is not identical to the protection afforded
by the Canadian Charter .
29
The most obvious distinction is the absence of any reference to the
principles of fundamental justice in s. 1 of the Quebec Charter.
The analysis dictated by s. 7 of the Canadian Charter is twofold.
Under the approach that is generally taken, the claimant must prove, first,
that a deprivation of the right to life, liberty and security of the person has
occurred and, second, that the deprivation is not in accordance with the
principles of fundamental justice (Gosselin v. Quebec (Attorney General),
[2002] 4 S.C.R. 429, 2002 SCC 84, at para. 205, per
Bastarache J.). If this is proved, the state must show under s. 1 of
the Canadian Charter that the deprivation is justified in a free and
democratic society.
30
According to established principles, the onus is on the claimant to
prove a violation of constitutional rights: R. v. Collins,
[1987] 1 S.C.R. 265, and Rio Hotel Ltd. v. New Brunswick (Liquor
Licensing Board), [1987] 2 S.C.R. 59; see also Hogg, at
p. 44‑3. Under s. 7 of the Canadian Charter , the
claimant would thus have a dual burden. The effect of placing this burden of
proof on the claimant is that it makes his or her task more onerous. There is
no such dual burden of proof under the Quebec Charter because the
principles of fundamental justice are not incorporated into s. 1 of the Quebec
Charter. For this reason, the Quebec Charter has a scope that is
potentially broader. This characteristic should not be disregarded.
31
Ruling on the points in issue by applying the Quebec Charter
enhances an instrument that is specific to Quebec; this approach is also
justified by the rules of Canadian constitutional law.
32
Before getting into the heart of the debate regarding s. 1 of the Quebec
Charter, I must address three preliminary arguments raised by the
respondent Attorney General of Quebec: (a) that the protection
of the right to freedom and life is limited to situations involving the
administration of justice, (b) that the right asserted is economic and is
not a fundamental right, and (c) that the appellants do not have standing.
IV. Preliminary Objections
A. Scope of Section 1
of the Quebec Charter
33
The trial judge adopted a liberal approach to applying the protection
afforded by s. 7 of the Canadian Charter . She expressed the
opinion that the protection is not limited to situations involving the
administration of justice. This Court has not yet achieved a consensus
regarding the scope of this protection. In Gosselin, at
paras. 78 and 83, McLachlin C.J. did not consider it
necessary to answer the question definitively. In my opinion, the same
question of law does not arise in the context of the Quebec Charter.
The Quebec Charter has a very broad scope of application. It extends to
relationships between individuals and relationships between individuals and the
state. Limiting the scope of s. 1 of the Quebec Charter to matters
connected with the administration of justice is not justified in light of the
general scope of this quasi‑constitutional instrument.
B. Economic Right or
Fundamental Right
34
Delisle J.A. accepted the argument of the Attorney General of
Quebec and declined to apply s. 7 of the Canadian Charter on the
basis that the right in issue, which in his opinion is an economic right, is
not protected by the Canadian Charter . This appeal does not require the
Court to establish a general rule including or excluding economic rights in or
from the scope of s. 1 of the Quebec Charter. The Superior Court
judge made the following observation in this regard (at pp. 822‑23):
[translation]
. . . the economic barriers . . . are closely related to
the possibility of gaining access to health care. Having regard to the costs
involved, access to private care without the rights in question is illusory.
Accordingly, those provisions are an impediment to access to health care
services and therefore potentially infringe the right to life, liberty and
security of the person. [Emphasis deleted.]
Piché J.’s
analysis is correct. Limits on access to health care can infringe the right to
personal inviolability. The prohibition cannot be characterized as an
infringement of an economic right.
C. Standing
35
Clearly, a challenge based on a charter, whether it be the Canadian
Charter or the Quebec Charter, must have an actual basis in
fact: Operation Dismantle Inc. v. The Queen, [1985]
1 S.C.R. 441. However, the question is not whether the appellants
are able to show that they are personally affected by an infringement. The
issues in the instant case are of public interest and the test from Minister
of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575, applies.
The issue must be serious, the claimants must be directly affected or have a
genuine interest as citizens and there must be no other effective means
available to them. These conditions have been met. The issue of the validity
of the prohibition is serious. Chaoulli is a physician and Zeliotis is a patient
who has suffered as a result of waiting lists. They have a genuine interest in
the legal proceedings. Finally, there is no effective way to challenge the
validity of the provisions other than by recourse to the courts.
36
The three preliminary objections are therefore dismissed. I will now
turn to the analysis of the infringement of the rights protected by s. 1
of the Quebec Charter.
V. Infringement of
the Rights Protected by Section 1 of the Quebec Charter
37
The appellant Zeliotis argues that the prohibition infringes Quebeckers’
right to life. Some patients die as a result of long waits for treatment in
the public system when they could have gained prompt access to care in the
private sector. Were it not for s. 11 HOIA and s. 15 HEIA,
they could buy private insurance and receive care in the private sector.
38
The Superior Court judge stated [translation]
“that there [are] serious problems in certain sectors of the health care
system” (p. 823). The evidence supports that assertion. After
meticulously analysing the evidence, she found that the right to life and
liberty protected by s. 7 of the Canadian Charter had been
infringed. As I mentioned above, the right to life and liberty protected by the
Quebec Charter is the same as the right protected by the Canadian
Charter . Quebec society is no different from Canadian society when it
comes to respect for these two fundamental rights. Accordingly, the trial
judge’s findings of fact concerning the infringement of the right to life and
liberty protected by s. 7 of the Canadian Charter apply to the
right protected by s. 1 of the Quebec Charter.
39
Not only is it common knowledge that health care in Quebec is subject to
waiting times, but a number of witnesses acknowledged that the demand for
health care is potentially unlimited and that waiting lists are a more or less
implicit form of rationing (report by J.‑L. Denis, Un avenir pour
le système public de santé (1998), at p. 13; report by
Y. Brunelle, Aspects critiques d’un rationnement planifié (1993),
at p. 21). Waiting lists are therefore real and intentional. The
witnesses also commented on the consequences of waiting times.
40
Dr. Daniel Doyle, a cardiovascular surgeon, testified that
when a person is diagnosed with cardiovascular disease, he or she is [translation] “always sitting on a bomb”
and can die at any moment. In such cases, it is inevitable that some patients
will die if they have to wait for an operation. Dr. Doyle testified that
the risk of mortality rises by 0.45 percent per month. The right to life
is therefore affected by the delays that are the necessary result of waiting
lists.
41
The Quebec Charter also protects the right to personal
inviolability. This is a very broad right. The meaning of “inviolability” is
broader than the meaning of the word “security” used in s. 7 of the Canadian
Charter . In civil liability cases, it has long been recognized in Quebec
that personal inviolability includes both physical inviolability and mental or
psychological inviolability. This was stated clearly in Quebec (Public
Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand,
[1996] 3 S.C.R. 211, at para. 95:
Section 1 of the Charter guarantees the
right to personal “inviolability”. The majority of the Court of Appeal was of
the opinion, contrary to the trial judge’s interpretation, that the protection
afforded by s. 1 of the Charter extends beyond physical
inviolability. I agree. The statutory amendment enacted in 1982 (see An
Act to amend the Charter of Human Rights and Freedoms, S.Q. 1982,
c. 61, in force at the time this cause of action arose) which, inter
alia, deleted the adjective “physique”, in the French version, which
had previously qualified the expression “intégrité” (inviolability),
clearly indicates that s. 1 refers inclusively to physical, psychological,
moral and social inviolability.
Furthermore,
arts. 1457 and 1458 of the Civil Code of Québec, S.Q. 1991,
c. 64, refer expressly to “moral” injury.
42
In the instant case, Dr. Eric Lenczner, an orthopaedic
surgeon, testified that the usual waiting time of one year for patients who
require orthopaedic surgery increases the risk that their injuries will become
irreparable. Clearly, not everyone on a waiting list is in danger of dying
before being treated. According to Dr. Edwin Coffey, people may face
a wide variety of problems while waiting. For example, a person with chronic
arthritis who is waiting for a hip replacement may experience considerable
pain. Dr. Lenczner also stated that many patients on non‑urgent
waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any
real quality of life.
43
Canadian jurisprudence shows support for interpreting the right to
security of the person generously in relation to delays. In R. v.
Morgentaler, [1988] 1 S.C.R. 30, at p. 59, Dickson C.J.
found, based on the consequences of delays, that the procedure then provided
for in s. 251 of the Criminal Code, R.S.C. 1970, c. C‑34,
jeopardized the right to security of the person. Beetz J., at
pp. 105-6, with Estey J. concurring, was of the opinion that the
delay created an additional risk to health and constituted a violation of the
right to security of the person. Likewise, in Rodriguez v. British Columbia
(Attorney General), [1993] 3 S.C.R. 519, at p. 589,
Sopinka J. found that the suffering imposed by the state impinged on the
right to security of the person. See also New Brunswick (Minister of
Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46,
and Blencoe v. British Columbia (Human Rights Commission), [2000]
2 S.C.R. 307, 2000 SCC 44, with respect to mental
suffering. If the evidence establishes that the right to security of the
person has been infringed, it supports, a fortiori, the finding that the
right to the inviolability of the person has been infringed.
44
In the opinion of my colleagues Binnie and LeBel JJ., there is an
internal mechanism that safeguards the public health system. According to
them, Quebeckers may go outside the province for treatment where services are
not available in Quebec. This possibility is clearly not a solution for the
system’s deficiencies. The evidence did not bring to light any administrative
mechanism that would permit Quebeckers suffering as a result of waiting times
to obtain care outside the province. The possibility of obtaining care outside
Quebec is case‑specific and is limited to crisis situations.
45
I find that the trial judge did not err in finding that the prohibition
on insurance for health care already insured by the state constitutes an
infringement of the right to life and security. This finding is no less true
in the context of s. 1 of the Quebec Charter. Quebeckers are
denied a solution that would permit them to avoid waiting lists, which are used
as a tool to manage the public plan. I will now consider the justification
advanced under s. 9.1 of the Quebec Charter.
VI. Justification for
the Prohibition
46
Section 9.1 of the Quebec Charter sets out the standard for
justification. It reads as follows:
9.1. In exercising his fundamental freedoms and rights, a person
shall maintain a proper regard for democratic values, public order and the
general well‑being of the citizens of Québec.
In this respect, the scope of the freedoms and
rights, and limits to their exercise, may be fixed by law.
47
The Court had occasion to consider the scope of this provision in Ford
v. Quebec (Attorney General), [1988] 2 S.C.R. 712. In its view,
in the context of the relationship between citizens and the state, the
provision is of the same nature as s. 1 of the Canadian Charter (at
pp. 769‑71):
It was suggested in argument that because of its
quite different wording s. 9.1 was not a justificatory provision similar
to s. 1 but merely a provision indicating that the fundamental freedoms
and rights guaranteed by the Quebec Charter are not absolute but
relative and must be construed and exercised in a manner consistent with the
values, interests and considerations indicated in s. 9.1 — “democratic
values, public order and the general well‑being of the citizens of
Québec.” In the case at bar the Superior Court and the Court of Appeal held
that s. 9.1 was a justificatory provision corresponding to s. 1 of
the Canadian Charter and that it was subject, in its application, to a
similar test of rational connection and proportionality. This Court agrees
with that conclusion. The first paragraph of s. 9.1 speaks of the manner
in which a person must exercise his fundamental freedoms and
rights. That is not a limit on the authority of government but rather does
suggest the manner in which the scope of the fundamental freedoms and rights is
to be interpreted. The second paragraph of s. 9.1, however — “In this
respect, the scope of the freedoms and rights, and limits to their exercise,
may be fixed by law” — does refer to legislative authority to impose limits on
the fundamental freedoms and rights. The words “In this respect” refer to the
words “maintain a proper regard for democratic values, public order and the
general well‑being of the citizens of Québec”. Read as a whole,
s. 9.1 provides that limits to the scope and exercise of the fundamental
freedoms and rights guaranteed may be fixed by law for the purpose of
maintaining a proper regard for democratic values, public order and the general
well‑being of the citizens of Quebec. That was the view taken of
s. 9.1 in both the Superior Court and the Court of Appeal. As for the
applicable test under s. 9.1, Boudreault J. in the Superior Court
quoted with approval from a paper delivered by Raynold Langlois, Q.C.,
entitled “Les clauses limitatives des Chartes canadienne et québécoise des
droits et libertés et le fardeau de la preuve”, and published in Perspectives
canadiennes et européennes des droits de la personne (1986), in which the
author expressed the view that under s. 9.1 the government must show that
the restrictive law is neither irrational nor arbitrary and that the means
chosen are proportionate to the end to be served. In the Court of Appeal,
Bisson J.A. adopted essentially the same test. He said that under
s. 9.1 the government has the onus of demonstrating on a balance of
probabilities that the impugned means are proportional to the object sought.
He also spoke of the necessity that the government show the absence of an
irrational or arbitrary character in the limit imposed by law and that there is
a rational link between the means and the end pursued. We are in general
agreement with this approach. . . . [I]t is an implication of the
requirement that a limit serve one of these ends that the limit should be
rationally connected to the legislative purpose and that the legislative means
be proportionate to the end to be served. That is implicit in a provision that
prescribes that certain values or legislative purposes may prevail in
particular circumstances over a fundamental freedom or right. That necessarily
implies a balancing exercise and the appropriate test for such balancing is one
of rational connection and proportionality. [Emphasis in original.]
48
The interpretation adopted by the Court in that decision still applies
today, and the analytical approach developed in R. v. Oakes, [1986]
1 S.C.R. 103, must be followed. This approach is well known. First,
the court must determine whether the objective of the legislation is pressing
and substantial. Next, it must determine whether the means chosen to attain
this legislative end are reasonable and demonstrably justifiable in a free and
democratic society. For this second part of the analysis, three tests must be
met: (1) the existence of a rational connection between the
measure and the aim of the legislation; (2) minimal impairment of the
protected right by the measure; and (3) proportionality between the effect
of the measure and its objective (Egan v. Canada, [1995]
2 S.C.R. 513, at para. 182). It is the minimal impairment
analysis that has proven to be the most delicate stage in the instant case.
The other stages cannot, however, be bypassed.
A. Purpose of the
Statute
49
The prohibitions are set out in the HOIA and the HEIA.
The general objective of these statutes is to promote health care of the
highest possible quality for all Quebeckers regardless of their ability to
pay. Quality of care and equality of access are two inseparable objectives
under the statutes. At trial, Claude Castonguay, who was Quebec’s
Minister of Health at the time when the HEIA was enacted, testified
regarding the legislation’s objectives:
[translation]
. . . we wanted to ensure that everyone would have access to health
care, regardless of their ability to pay. Also, because the Health Insurance
Act was part of a whole — there was Bill 65 respecting health services —
we wanted a thorough reform. We wanted access to health care to be as equal as
possible everywhere in Quebec, regardless of place of residence, regardless of
financial circumstances . . . .
50
The quality objective is not formally stated, but it seems clear that a
health care service that does not attain an acceptable level of quality of care
cannot be regarded as a genuine health care service. Low‑quality
services can threaten the lives of users. The legislature accordingly required
that there be supervision of health care. That supervision is essential to
guarantee not only the quality of care, but also public safety.
51
To ensure supervision of these services, the AHSSS provides for
program planning (s. 346), organization of services (ss. 347 to 349),
allocation of financial resources (ss. 350 and 351), coordination of
health services and social services (ss. 352 to 370), and management of
human, material and financial resources (ss. 376 to 385). An institution
that provides services may be private and may receive government funding, in
which case it is referred to as a “private institution under agreement”. In
such cases, the state delegates its responsibilities to a private sector
service provider. The services of public institutions and private institutions
under agreement relate, on the whole, to a single offer of services, namely the
one established by the government. If a legal or natural person wishes to
provide health services or social services contemplated by the AHSSS
from an institution, the person must obtain a permit to operate an institution
(ss. 316 and 437). Because private institutions are not prohibited by the
AHSSS, the Minister may not refuse to issue a permit solely because he
or she wishes to slow down the development of private institutions that are not
under agreement (Charles Bentley Nursing Home Inc. v. Ministre des
Affaires sociales, [1978] C.S. 30) (see M. Laverdière, “Le
cadre juridique canadien et québécois relatif au développement parallèle de
services privés de santé et l’article 7 de la Charte canadienne des
droits et libertés ” (1998‑1999), 29 R.D.U.S. 117).
52
The HOIA and the HEIA provide that, within the framework
they establish, the state is responsible for the provision and funding of health
services. The HEIA provides (s. 3) that the state is to pay the
cost of services rendered by a physician that are medically required as well as
certain other services provided by, inter alia, dentists, pharmacists
and optometrists. The insured services are funded by the state out of public
moneys. The only contribution made by recipients of services toward the cost
is through their income tax, if they are liable to pay income tax. The
services covered must be provided by participating professionals or by
professionals “who have withdrawn”, although these professionals may not
receive any fees in addition to those paid by the state (s. 22). The
purpose of the HOIA is to ensure that hospital care is provided free of
charge. The Act provides that hospital services are insured where they are
medically required so that Quebeckers receive hospital services without charge
and upon uniform terms and conditions (s. 2).
53
It can be seen from this brief review of the legislation governing
health services that such services are controlled almost entirely by the state.
54
Although there are, at first glance, no provisions that prohibit the
delivery of services by an individual or a legal person established for a
private interest, a number of constraints are readily apparent. In addition to
the restrictions relating to the remuneration of professionals, the requirement
that a permit be obtained to provide hospital services creates a serious
obstacle in practice. This constraint would not be problematic if the
prevailing approach favoured the provision of private services. However, that
is not the case. Not only are the restrictions real (Laverdière, at
p. 170), but Mr. Chaoulli’s situation shows clearly that they are.
Here again, the executive branch is implementing the intention of the Quebec
legislature to limit the provision of private services outside the public
plan. That intention is evident in the preliminary texts tabled in the
National Assembly, in the debate concerning those texts and, finally, in the
written submissions filed by the Attorney General of Quebec in the instant
case.
55
Section 11 HOIA and s. 15 HEIA convey this
intention clearly. They render any proposal to develop private professional
services almost illusory. The prohibition on private insurance creates an
obstacle that is practically insurmountable for people with average incomes.
Only the very wealthy can reasonably afford to pay for entirely private
services. Assuming that a permit were issued, the operation of an institution
that is not under agreement is the exception in Quebec. In fact, the trial
judge found that the effect of the prohibition was to “significantly” limit the
private provision of services that are already available under the public plan
(p. 812). This observation relates to the effects of the prohibition.
These effects must not be confused with the objective of the legislation.
According to the Attorney General of Quebec, the purpose of the prohibition is
to preserve the integrity of the public health care system. From this
perspective, the objective appears at first glance to be pressing and
substantial. Its pressing and substantial nature can be confirmed by
considering the historical context.
56
Government involvement in health care came about gradually. Initially
limited to extreme cases, such as epidemics or infectious diseases, the
government’s role has expanded to become a safety net that ensures that the
poorest people have access to basic health care services. The enactment of the
first legislation providing for universal health care was a response to a need
for social justice. According to Dr. Fernand Turcotte, [translation] “it was recognized [during
the 1920s] that illness had become the primary cause of impoverishment for
Canadians, owing to the loss of work that almost always results from serious
illness and the loss of family assets, which were inevitably swallowed up to pay
for health care” (report by F. Turcotte, Le temps d’attente comme
instrument de gestion du rationnement dans les services de santé du Canada (1998),
at p. 4). Since the government passed legislation based on its view that
it had to be the principal actor in the health care sphere, it is easy to
understand its distrust of the private sector. At the stage of analysis of the
objective of the legislation, I believe that preserving the public plan is a
pressing and substantial purpose.
B. Proportionality
(1) Rational Connection
57
The next question is whether the prohibition on private insurance has a
rational connection with the objective of preserving the public plan. Does
this measure assist the state in implementing a public plan that provides high‑quality
health care services that are accessible to all residents of Quebec?
58
According to the trial judge, the effect of the measure adopted by the
state is to “significantly” limit private health care. Although the effect of
a measure is not always indicative of a rational connection between the measure
and its objective, in the instant case the consequences show an undeniable
connection between the objective and the measure. The public plan is preserved
because it has a quasi‑monopoly.
(2) Minimal Impairment
59
The trial judge made certain assertions that suggest she found that the
measure met the minimal impairment test. However, her approach was not appropriate
to s. 9.1 of the Quebec Charter. Her comments must therefore be
considered in their context, not only because she failed to address the Quebec
Charter, but also because she appears to have placed the onus on the
appellants to prove that private insurance would provide a solution to the
problem of waiting lists (at p. 796):
[translation]
The Court further finds that although some of these specialists indicated a
desire to be free to obtain private insurance, none of them gave their full and
absolute support to the applicants’ proposals, as they explained that it was
neither clear nor obvious that a reorganization of the health system with a
parallel private system would solve all the existing problems of delays and
access. On the contrary, the specialists who testified remained quite
circumspect about this complex and difficult question.
60
The burden of proof does not rest on the appellants. Under s. 9.1
of the Quebec Charter, the onus was on the Attorney General of Quebec to
prove that the prohibition is justified. He had to show that the measure met
the minimal impairment test. The trial judge did not consider the evidence on
the basis that there was a burden on the Attorney General of Quebec.
61
To determine whether the Attorney General of Quebec has discharged this
burden, I will begin by analysing the expert evidence submitted to the Superior
Court. I will then examine the situations in the other provinces of Canada and
in certain countries of the Organization for Economic Cooperation and
Development (“OECD”). Finally, I will address the deference the Court must
show where the government has chosen among a number of measures that may impair
protected rights.
(a) The Experts Who
Testified at Trial and Whose Evidence Was Accepted by the Superior Court Judge
62
As can be seen from the evidence, the arguments made in support of the
position that the integrity of the public system could be jeopardized by
abolishing the prohibition can be divided into two groups. The first group of
arguments relates to human reactions of the various people affected by the
public plan, while the second group relates to the consequences for the plan
itself.
(i) Human Reactions
63
1. Some witnesses asserted that the emergence of the private sector
would lead to a reduction in popular support in the long term because the
people who had private insurance would no longer see any utility for the public
plan. Dr. Howard Bergman cited an article in his expert
report. Dr. Theodore R. Marmor supported this argument but conceded
that he had no way to verify it.
2. Some witnesses were of the opinion that the
quality of care in the public plan would decline because the most influential
people would no longer have any incentive to bring pressure for improvements to
the plan. Dr. Bergman cited a study by the World Bank in support of his
expert report. Dr. Marmor relied on this argument but confirmed that
there is no direct evidence to support this view.
3. There would be a reduction in human
resources in the public plan because many physicians and other health care
professionals would leave the plan out of a motive for
profit: Dr. Charles J. Wright cited a study done in the
United Kingdom, but admitted that he had read only a summary and not the study
itself. Although Dr. Marmor supported the assertion, he testified that
there is really no way to confirm it empirically. In his opinion, it is simply
a matter of common sense.
4. An increase in the use of private health
care would contribute to an increase in the supply of care for profit and lead
to a decline in the professionalism and ethics of physicians working in
hospitals. No study was cited in support of this opinion that seems
to be based only on the witnesses’ common sense.
64
It is apparent from this summary that for each threat mentioned, no
study was produced or discussed in the Superior Court. While it is true that
scientific or empirical evidence is not always necessary, witnesses in a case
in which the arguments are supposedly based on logic or common sense should be
able to cite specific facts in support of their conclusions. The human
reactions described by the experts, many of whom came from outside Quebec, do
not appear to me to be very convincing, particularly in the context of Quebec
legislation. Participation in the public plan is mandatory and there is no
risk that the Quebec public will abandon the public plan. The state’s role is
not being called into question. As well, the HEIA contains a clear
provision authorizing the Minister of Health to ensure that the public plan is
not jeopardized by having too many physicians opt for the private system
(s. 30 HEIA). The evidence that the existence of the health care
system would be jeopardized by human reactions to the emergence of a private
system carries little weight.
(ii) Impact on the Public Plan
65
1. There would be an increase in overall health
expenditures: the alleged increase would come primarily from the
additional expenditures incurred by individuals who decide to take out private
insurance; the rest of the increase in costs would be attributable to the cost
of management of the private system by the state.
2. Insurers would reject the most acute
patients, leaving the most serious cases to be covered by the public plan.
3. In a private system, physicians would tend
to lengthen waiting times in the public sector in order to direct patients to
the private sector from which they would derive a profit.
66
Once again, I am of the opinion that the reaction some witnesses
described is highly unlikely in the Quebec context. First, if the increase in
overall costs is primarily attributable to the individual cost of insurance, it
would be difficult for the state to prevent individuals who wished to pay such
costs from choosing how to manage their own finances. Furthermore, because the
public plan already handles all the serious cases, I do not see how the
situation could be exacerbated if that plan were relieved of the clientele with
less serious health problems. Finally, because of s. 1(e), non‑participating
physicians may not practise as participants; they will not therefore be faced
with the conflict of interest described by certain witnesses. As for physicians
who have withdrawn (s. 1(d) HEIA), the state controls their
conditions of practice by way of the agreements (s. 1(f) HEIA)
they are required to sign. Thus, the state can establish a framework of
practice for physicians who offer private services.
67
The trial judge’s assessment of the evidence was founded on the idea
that the appellants had to prove that abolishing the prohibition would improve
the public plan. She also analysed the case from the perspective of s. 7
of the Canadian Charter , which placed the burden on the appellants
rather than on the Attorney General of Quebec. Furthermore, a number of
witnesses failed to consider the legislation specific to Quebec. The
combination of these three oversights or errors means that the findings must be
qualified and adapted to s. 9.1 of the Quebec Charter.
68
Upon completing her analysis, the trial judge drew the following
conclusion (at p. 827):
[translation] These
provisions are based on the fear that the establishment of a private
health care system would rob the public sector of a significant portion of the
available health care resources. [Emphasis added.]
Thus, the
judge’s finding that the appellants had failed to show that the scope of the
prohibition was excessive and that the principles of fundamental justice had
not been violated was based solely on the “fear” of an erosion of resources or
a [translation] “threat [to] the
integrity” of the system (p. 827 (emphasis deleted)). But the appellants
did not have the burden of disproving every fear or every threat. The onus was
on the Attorney General of Quebec to justify the prohibition. Binnie and
LeBel JJ. rely on a similar test in asserting that private health care
would likely have an impact on the public plan. This standard does not meet
the requirement of preponderance under s. 9.1 of the Quebec Charter.
It can be seen from the evidence that the Attorney General of Quebec failed to
discharge his burden of proving that a total prohibition on private insurance
met the minimal impairment test.
69
There is other evidence in the record that might be of assistance in the
justification analysis. In this regard, it is useful to observe the approaches
of the other Canadian provinces because they also operate within the financial
framework established by the Canada Health Act .
(b) Overview of Other Provincial
Plans
70
The approach to the role of the private sector taken by the other nine
provinces of Canada is by no means uniform. In addition to Quebec, six other
provinces have adopted measures to discourage people from turning to the
private sector. The other three, in practice, give their residents free
access to the private sector.
71
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.
72
Alberta (Alberta Health Care Insurance Act, R.S.A. 2000,
c. A‑20, s. 9(1)), British Columbia (Medicare Protection Act,
R.S.B.C. 1996, c. 286, s. 18(2)) and Prince Edward Island (Health
Services Payment Act, R.S.P.E.I. 1988, c. H‑2, ss. 10,
10.1 and 14.1) have adopted a very different approach. In those provinces, non‑participating
physicians are free to set the amount of their fees, but the cost of the
services is not refunded and contracts for insurance to cover services offered
by the public plan are prohibited. This is the same policy as has been adopted
by Quebec.
73
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.
74
Even if it were assumed that the prohibition on private insurance could
contribute to preserving the integrity of the system, the variety of measures
implemented by different provinces shows that prohibiting insurance contracts
is by no means the only measure a state can adopt to protect the system’s
integrity. In fact, because there is no indication that the public plans of
the three provinces that are open to the private sector suffer from
deficiencies that are not present in the plans of the other provinces, it must
be deduced that the effectiveness of the measure in protecting the integrity of
the system has not been proved. The example illustrated by a number of other
Canadian provinces casts doubt on the argument that the integrity of the public
plan depends on the prohibition against private insurance. Obviously, since
Quebec’s public plan is in a quasi‑monopoly position, its predominance is
assured. Also, the regimes of the provinces where a private system is
authorized demonstrate that public health services are not threatened by
private insurance. It can therefore be concluded that the prohibition is not
necessary to guarantee the integrity of the public plan.
75
In the context of s. 9.1 of the Quebec Charter, I must
conclude that a comparison with the plans of the other Canadian provinces does
not support the position of the Attorney General of Quebec.
76
There are also many reports in the record on which to base an overview
of current practices in several OECD countries.
(c) Overview of Practices in
Certain OECD Countries
77
Mr. Chaoulli, echoed by at least one of the witnesses
(Dr. Coffey), argued that Canada is the only OECD country to prohibit
insurance for health care provided by non‑participating physicians. This
assertion must be clarified as it relates to Canada: it is true of
only six provinces. It must also be qualified in the international
context: while no such prohibition is found in any other OECD
country, it should nonetheless be mentioned that measures to protect the public
plan have been implemented in a number of countries, even some of the countries
whose health care plans have been provided as models. There is no single
model; the approach in Europe is no more uniform than in Canada.
78
In a number of European countries, there is no insurance paid for
directly out of public funds. In Austria, services are funded through
decentralized agencies that collect the necessary funds from salaries. People
who want to obtain health care in the private sector in addition to the
services covered by the mandatory social insurance are free to do so, but
private insurance may cover no more than 80 percent of the cost billed by
professionals practising in the public sector. The same type of plan exists in
Germany and the Netherlands, but people who opt for private insurance are not
required to pay for the public plan. Only nine percent of Germans opt for
private insurance.
79
Australia’s public system is funded in a manner similar to the Quebec
system. However, Australia’s system is different in that the private and
public sectors coexist, and insurance covering private sector health care is
not prohibited. The government attempts to balance access to the two sectors
by allowing taxpayers to deduct 30 percent of the cost of private
insurance. Insurance rates are regulated to prevent insurers from charging
higher premiums for higher‑risk individuals (C. H. Tuohy,
C. M. Flood and M. Stabile, “How Does Private Finance Affect
Public Health Care Systems? Marshaling the Evidence from OECD Nations” (2004),
29 J. Health Pol. 359).
80
The United Kingdom does not restrict access to private insurance for
health care (The Health of Canadians — The Federal Role, vol. 3, Health
Care Systems in Other Countries, Interim Report (2002), at p. 38).
Nor does the United Kingdom limit a physician’s ability to withdraw from the
public plan. However, physicians working full‑time in public hospitals
are limited in the amounts that they may bill in the private sector to
supplement income earned in the public sector (p. 40). Only
11.5 percent of Britons had taken out private insurance in 1998 (Tuohy,
Flood and Stabile, at p. 374), and only 8 percent of hospital beds in the
United Kingdom are private (Quebec and France, Health
Indicators: International Comparisons: 15 years of
Evolution: Canada, France, Germany, Québec, United Kingdom, United
States (1998), at p. 55). New Zealand has a plan similar to that
of the United Kingdom with the difference that 40 percent of
New Zealanders have private insurance (Tuohy, Flood and Stabile, at
p. 363).
81
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).
82
It can be seen from the systems in these various OECD countries that a
number of governments have taken measures to protect their public plans from
abuse. The measures vary from country to country depending on the nature of
their specific systems. For example, in the United Kingdom, there are limits
on the amounts physicians may earn in the private sector in addition to what
they receive from the public plan. Australia has opted to regulate insurance
premiums, but it is alone in this respect.
83
As can be seen from the evolution of public plans in the few OECD
countries that have been examined in studies produced in the record, there are
a wide range of measures that are less drastic, and also less intrusive in
relation to the protected rights. The Quebec context is a singular one, not
only because of the distinction between participating physicians, non‑participating
physicians and physicians who have withdrawn (s. 1 HEIA), but also
because the Minister may require non‑participating physicians to provide
health services if he or she considers it likely that the services will not be
provided under uniform conditions throughout Quebec or in a particular region
(s. 30 HEIA). A measure as drastic as prohibiting private
insurance contracts appears to be neither essential nor determinative.
84
It cannot therefore be concluded from the evidence relating to the
Quebec plan or the plans of the other provinces of Canada, or from the
evolution of the systems in place in various OECD countries, that the Attorney
General of Quebec has discharged his burden of proof under s. 9.1 of the Quebec
Charter. A number of measures are available to him to protect the
integrity of Quebec’s health care plan. The choice of prohibiting private
insurance contracts is not justified by the evidence. However, is this a case
in which the Court should show deference?
(d) Level of Deference Required
85
In the past, the Court has considered the question of the basis of its
power of judicial review (Hunter v. Southam Inc., [1984]
2 S.C.R. 145, at p. 155; Vriend v. Alberta, [1998]
1 S.C.R. 493, at para. 56; Reference re Secession of Quebec,
[1998] 2 S.C.R. 217, at para. 98), and it is not necessary to
retrace the source of the powers deriving from s. 52 of the Constitution
Act, 1982 and s. 52 of the Quebec Charter. Section 52 of
the Quebec Charter reads as follows:
52. No provision of any Act, even subsequent to the Charter,
may derogate from sections 1 to 38, except so far as provided by those
sections, unless such Act expressly states that it applies despite the Charter.
However, as
can be seen from the large number of interveners in this appeal, differences of
views over the emergence of a private health care plan have a polarizing effect
on the debate, and the question of the deference owed to the government by the
courts must be addressed. Some of the interveners urge the courts to step in,
while others argue that this is the role of the state. It must be possible to
base the criteria for judicial intervention on legal principles and not on a
socio‑political discourse that is disconnected from reality.
86
Under the charters, the government is responsible for justifying
measures it imposes that impair rights. The courts can consider evidence
concerning the historical, social and economic aspects, or any other evidence
that may be material.
87
It cannot be said that the government lacks the necessary resources to
show that its legislative action is motivated by a reasonable objective
connected with the problem it has undertaken to remedy. The courts are an appropriate
forum for a serious and complete debate. As G. Davidov said in “The
Paradox of Judicial Deference” (2000‑2001), 12 N.J.C.L. 133,
at p. 143, “[c]ourts do not have to define goals, choose means or come up
with ideas. They do not have to create social policies; they just have to
understand what the other branches have created. No special expertise is
required for such an understanding.” In fact, if a court is satisfied that all
the evidence has been presented, there is nothing that would justify it in
refusing to perform its role on the ground that it should merely defer to the
government’s position. When the courts are given the tools they need to make a
decision, they should not hesitate to assume their responsibilities. Deference
cannot lead the judicial branch to abdicate its role in favour of the
legislative branch or the executive branch.
88
The question submitted by the appellants has a factual content that was
analysed by the trial judge. One part of her findings must be adapted to the
context of s. 9.1 of the Quebec Charter. The other findings remain
unchanged. The questions of law are not complex.
89
The courts have a duty to rise above political debate. They leave it to
the legislatures to develop social policy. But when such social policies
infringe rights that are protected by the charters, the courts cannot shy away
from considering them. The judicial branch plays a role that is not played by
the legislative branch. Professor Roach described the complementary role
of the courts vis‑à‑vis the legislature as
follows (K. Roach, “Dialogic Judicial Review and its Critics” (2004),
23 Sup. Ct. L. Rev. (2d) 49, at
pp. 69‑71):
[Some] unique attributes of courts include their commitment to allowing
structured and guaranteed participation from aggrieved parties; their
independence from the executive, and their commitment to giving reasons for
their decisions. In addition, courts have a special commitment to make sense
of legal texts that were democratically enacted as foundational documents.
. . . The pleader in court has a
guaranteed right of participation and a right to a reasoned decision that
addresses the arguments made in court, as well as the relevant text of the
democratically enacted law. . . .
Judges can add value to societal debates about
justice by listening to claims of injustice and by promoting values and
perspectives that may not otherwise be taken seriously in the legislative
process.
90
From this perspective, it is through the combined action of legislatures
and courts that democratic objectives can be achieved. In their analysis of
the Quebec secession reference, Choudhry and Howse describe this division of
constitutional responsibilities accurately (S. Choudhry and R. Howse,
“Constitutional Theory and The Quebec Secession Reference” (2000),
13 Can. J. L. & Jur. 143, at pp. 160‑61):
[I]nterpretive responsibility for particular constitutional norms is
both shared and divided. It is shared to the extent that courts are
responsible for articulating constitutional norms in their conceptually
abstract form. But interpretive responsibility is divided because beyond the
limits of doctrine, constitutional interpretation is left to the political
organs. The image which emerges is one of “judicial and legislative
cooperation in the molding of concrete standards through which elusive and complex
constitutional norms . . . come to be applied.”
91
To refuse to exercise the power set out in s. 52 of the Quebec
Charter would be to deny that provision its real meaning and to deprive
Quebeckers of the protection to which they are entitled.
92
In a given case, a court may find that evidence could not be presented
for reasons that it considers valid, be it due to the complexity of the
evidence or to some other factor. However, the government cannot argue that
the evidence is too complex without explaining why it cannot be presented. If
such an explanation is given, the court may show greater deference to the
government. Based on the extent of the impairment and the complexity of the
evidence considered to be necessary, the court can determine whether the
government has discharged its burden of proof.
93
The court’s reasons for showing deference must always reflect the two
guiding principles of justification: the measure must be consistent with
democratic values and it must be necessary in order to maintain public order
and the general well‑being of citizens. The variety of circumstances
that may be presented to a court is not conducive to the rigidity of an
exhaustive list.
94
In past cases, the Court has discussed a number of situations in which
courts must show deference, namely situations in which the government is
required to mediate between competing interests and to choose between a number
of legislative priorities (Irwin Toy Ltd. v. Quebec (Attorney General),
[1989] 1 S.C.R. 927, at pp. 993‑94). It is also possible
to imagine situations in which a government might lack time to implement
programs or amend legislation following the emergence of new social, economic
or political conditions. The same is true of an ongoing situation in which the
government makes strategic choices with future consequences that a court is not
in a position to evaluate.
95
In short, a court must show deference where the evidence establishes
that the government has assigned proper weight to each of the competing
interests. Certain factors favour greater deference, such as the prospective
nature of the decision, the impact on public finances, the multiplicity of
competing interests, the difficulty of presenting scientific evidence and the
limited time available to the state. This list is certainly not exhaustive.
It serves primarily to highlight the facts that it is up to the government to
choose the measure, that the decision is often complex and difficult, and that
the government must have the necessary time and resources to respond. However,
as McLachlin J. (as she then was) said in RJR‑MacDonald Inc. v.
Canada (Attorney General), [1995] 3 S.C.R. 199, at
para. 136, “. . . care must be taken not to extend the notion of
deference too far”.
96
The instant case is a good example of a case in which the courts have
all the necessary tools to evaluate the government’s measure. Ample evidence
was presented. The government had plenty of time to act. Numerous commissions
have been established (Commission d’étude sur les services de santé et les
services sociaux (Quebec) (Clair Commission), 2000; Comité sur la pertinence et
la faisabilité d’un régime universel public d’assurance médicaments (Quebec)
(Montmarquette Committee), 2001; Commission on the Future of Health Care in
Canada (Canada) (Romanow Commission), 2002), and special or independent
committees have published reports (Quebec, Emerging
Solutions: Report and Recommendations (2001)
(Clair Report); Quebec, Pour un régime d’assurance médicaments
équitable et viable (2001) (Montmarquette Report); Canada, The
Health of Canadians — The Federal Role, vol. 6, Recommendations
for Reform, Final Report (2002) (Kirby Report); Canada, Waiting
Lists and Waiting Times for Health Care in Canada: More Management!! More
Money?? (1998)). Governments have promised on numerous occasions to find a
solution to the problem of waiting lists. Given the tendency to focus the
debate on a sociopolitical philosophy, it seems that governments have lost
sight of the urgency of taking concrete action. The courts are therefore the
last line of defence for citizens.
97
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.
98
In the instant case, the effectiveness of the prohibition has by no
means been established. The government has not proved, by the evidence in the
record, that the measure minimally impairs the protected rights. Moreover, the
evidence shows that a wide variety of measures are available to governments, as
can be seen from the plans of other provinces and other countries.
(3) Proportionality
99
Having found that s. 15 HEIA and s. 11 HOIA do
not meet the minimal impairment test, I do not need to consider
proportionality. If the prohibition is not minimally impairing, it obviously
cannot be regarded as a measure that sufficiently addresses the effect of the
measure on the protected rights.
VII. Conclusion
100
The relief sought by the appellants does not necessarily provide a
complete response to the complex problem of waiting lists. However, it was not
up to the appellants to find a way to remedy a problem that has persisted for a
number of years and for which the solution must come from the state itself.
Their only burden was to prove that their right to life and to personal
inviolability had been infringed. They have succeeded in proving this. The
Attorney General of Quebec, on the other hand, has not proved that the impugned
measure, the prohibition on private insurance, was justified under s. 9.1
of the Quebec Charter. Given that this finding is sufficient to
dispose of the appeal, it is not necessary to answer the other constitutional
questions.
101
For these reasons, I would allow the appeal with costs throughout and
would answer the questions relating to the Quebec Charter as follows:
Question 1: Does s. 11 of the Hospital
Insurance Act, R.S.Q., c. A‑28, infringe the rights guaranteed
by s. 1 of the Quebec Charter?
Answer: Yes.
Question 2: If so, is the
infringement a reasonable limit prescribed by law as can be demonstrably
justified in a free and democratic society under s. 9.1 of the Quebec
Charter?
Answer: No.
Question 3: Does s. 15 of the Health
Insurance Act, R.S.Q., c. A‑29, infringe the rights guaranteed
by s. 1 of the Quebec Charter?
Answer: Yes.
Question 4: If so, is the
infringement a reasonable limit prescribed by law as can be demonstrably
justified in a free and democratic society under s. 9.1 of the Quebec
Charter?
Answer: No.
The reasons of McLachlin C.J. and Major and Bastarache JJ. were
delivered by
102
The Chief Justice and Major J.
— We concur in the conclusion of our colleague Deschamps J. that the
prohibition against contracting for private health insurance violates s. 1 of
the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12, and is
not justifiable under s. 9.1. On the argument that the anti-insurance
provision also violates s. 7 of the Canadian Charter of Rights and Freedoms
(“Charter ”), we conclude that the provision impermissibly limits the
right to life, liberty and security of the person protected by s. 7 of the
Charter and has not been shown to be justified as a reasonable limit
under s. 1 of the Charter .
103
The appellants do not seek an order that the government spend more money
on health care, nor do they seek an order that waiting times for treatment
under the public health care scheme be reduced. They only seek a ruling that
because delays in the public system place their health and security at risk,
they should be allowed to take out insurance to permit them to access private
services.
104
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 . We are
of the view that the prohibition on medical insurance in s. 15 of the Health
Insurance Act, R.S.Q., c. A-29, and s. 11 of the Hospital Insurance Act,
R.S.Q., c. A-28 (see Appendix), violates s. 7 of the Charter because it
impinges on the right to life, liberty and security of the person in an
arbitrary fashion that fails to conform to the principles of fundamental
justice.
105
The primary objective of the Canada Health Act, R.S.C. 1985, c.
C-6 , is “to protect, promote and restore the physical and mental well‑being
of residents of Canada and to facilitate reasonable access to health
services without financial or other barriers” (s. 3). By imposing
exclusivity and then failing to provide public health care of a reasonable
standard within a reasonable time, the government creates circumstances that
trigger the application of s. 7 of the Charter .
106
The Canada Health Act , the Health Insurance Act, and the Hospital
Insurance Act do not expressly prohibit private health services. However,
they limit access to private health services by removing the ability to
contract for private health care insurance to cover the same services covered
by public insurance. The result is a virtual monopoly for the public health
scheme. The state has effectively limited access to private health care
except for the very rich, who can afford private care without need of
insurance. This virtual monopoly, on the evidence, results in delays in
treatment that adversely affect the citizen’s security of the person. Where a
law adversely affects life, liberty or security of the person, it must conform
to the principles of fundamental justice. This law, in our view, fails to do
so.
107
While the decision about the type of health care system Quebec should
adopt falls to the Legislature of that province, the resulting legislation,
like all laws, is subject to constitutional limits, including those imposed by
s. 7 of the Charter . The fact that the matter is complex, contentious
or laden with social values does not mean that the courts can abdicate the
responsibility vested in them by our Constitution to review legislation for Charter
compliance when citizens challenge it. As this Court has said on a number of
occasions, “it is the high duty of this Court to insure that the Legislatures
do not transgress the limits of their constitutional mandate and engage in the
illegal exercise of power”: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R.
486, at p. 497, per Lamer J. (as he then was), quoting Amax
Potash Ltd. v. Government of Saskatchewan, [1977] 2 S.C.R. 576, at p. 590, per
Dickson J. (as he then was).
108
The government defends the prohibition on medical insurance on the
ground that the existing system is the only approach to adequate universal
health care for all Canadians. The question in this case, however, is not
whether single-tier health care is preferable to two-tier health care. Even if
one accepts the government’s goal, the legal question raised by the appellants
must be addressed: is it a violation of s. 7 of the Charter to prohibit
private insurance for health care, when the result is to subject Canadians to
long delays with resultant risk of physical and psychological harm? The mere
fact that this question may have policy ramifications does not permit us to
avoid answering it.
I. Section 7 of the Charter
109
Section 7 of the Charter guarantees that “[e]veryone has the
right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental
justice.” The disposition of this appeal therefore requires us to consider (1)
whether the impugned provisions deprive individuals of their life, liberty or
security of the person; and (2) if so, whether this deprivation is in
accordance with the principles of fundamental justice: see, e.g., R.
v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, at para. 83.
A. Deprivation of Life, Liberty or Security
of the Person
110
The issue at this stage is whether the prohibition on insurance for
private medical care deprives individuals of their life, liberty or security of
the person protected by s. 7 of the Charter .
111
The appellants have established that many Quebec residents face delays
in treatment that adversely affect their security of the person and that they
would not sustain but for the prohibition on medical insurance. It is common
ground that the effect of the prohibition on insurance is to allow only the very
rich, who do not need insurance, to secure private health care in order to
avoid the delays in the public system. Given the ban on insurance, most
Quebeckers have no choice but to accept delays in the medical system and their
adverse physical and psychological consequences.
112
Delays in the public system are widespread and have serious, sometimes
grave, consequences. There was no dispute that there is a waiting list for
cardiovascular surgery for life-threatening problems. Dr. Daniel Doyle, a
cardiovascular surgeon who teaches and practises in Quebec City, testified that
a person with coronary disease is [translation]
“sitting on a bomb” and can die at any moment. He confirmed, without
challenge, that patients die while on waiting lists: A.R., at p. 461.
Inevitably, where patients have life-threatening conditions, some will die
because of undue delay in awaiting surgery.
113
The same applies to other health problems. In a study of 200 subjects
aged 65 and older with hip fractures, the relationship between pre-operative
delay and post-operative complications and risk of death was examined. While
the study found no relationship between pre-operative delay and post-operative
complications, it concluded that the risk of death within six months after
surgery increased significantly, by 5 percent, with the length of pre-operative
delay: A. Laberge, P. M. Bernard and P. A. Lamarche, “Relationships between the
delay before surgery for a hip fracture, postoperative complications and risk
of death” (1997), 45 Rev. Epidém. et Santé Publ. 5, at p. 9.
114
Dr. Eric Lenczner, an orthopaedic surgeon, testified that the one-year
delay commonly incurred by patients requiring ligament reconstruction surgery
increases the risk that their injuries will become irreparable (A.R., at p.
334). Dr. Lenczner also testified that 95 percent of patients in Canada wait
well over a year, and many two years, for knee replacements. While a knee
replacement may seem trivial compared to the risk of death for wait-listed
coronary surgery patients, which increases by 0.5 percent per month (A.R., at
p. 450), the harm suffered by patients awaiting replacement knees and hips is
significant. Even though death may not be an issue for them, these patients
“are in pain”, “would not go a day without discomfort” and are “limited in
their ability to get around”, some being confined to wheelchairs or house bound
(A.R., at pp. 327-28).
115
Both the individual members of the Standing Senate Committee on Social
Affairs, Science and Technology who intervened in this appeal and the Canadian
Medical Association cited a Statistics Canada study demonstrating that over one
in five Canadians who needed health care for themselves or a family member in
2001 encountered some form of difficulty, from getting an appointment to
experiencing lengthy waiting times: C. Sanmartin et al., Access to
Health Care Services in Canada, 2001 (June 2002), at p. 17.
Thirty-seven percent of those patients reported pain.
116
In addition to threatening the life and the physical security of the
person, waiting for critical care may have significant adverse psychological
effects. Serious psychological effects may engage s. 7 protection for security
of the person. These “need not rise to the level of nervous shock or
psychiatric illness, but must be greater than ordinary stress or anxiety”: New
Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3
S.C.R. 46, at para. 60.
117
Studies confirm that patients with serious illnesses often experience
significant anxiety and depression while on waiting lists. A 2001 study
concluded that roughly 18 percent of the estimated five million people who
visited specialists for a new illness or condition reported that waiting for
care adversely affected their lives. The majority suffered worry, anxiety or
stress as a result. This adverse psychological impact can have a serious and
profound effect on a person’s psychological integrity, and is a violation of
security of the person (Access to Health Care Services in Canada, 2001,
at p. 20).
118
The jurisprudence of this Court holds that delays in obtaining medical
treatment which affect patients physically and psychologically trigger the
protection of s. 7 of the Charter . In R. v. Morgentaler, [1988]
1 S.C.R. 30, Dickson C.J. concluded that the delay in obtaining therapeutic
abortions, which increased the risk of complications and mortality due to
mandatory procedures imposed by the state, was sufficient to trigger the
physical aspect of the woman’s right to security of the person: Morgentaler,
at p. 59. He found that the psychological impact on women awaiting
abortions constituted an infringement of security of the person. Beetz J.
agreed with Dickson C.J. that “[t]he delays mean therefore that the state has
intervened in such a manner as to create an additional risk to health, and
consequently this intervention constitutes a violation of the woman’s security
of the person”: see Morgentaler, at pp. 105-6.
119
In this appeal, delays in treatment giving rise to psychological and
physical suffering engage the s. 7 protection of security of the person just as
they did in Morgentaler. In Morgentaler, as in this case, the
problem arises from a legislative scheme that offers health services. In Morgentaler,
as in this case, the legislative scheme denies people the right to access
alternative health care. (That the sanction in Morgentaler was criminal
prosecution while the sanction here is administrative prohibition and penalties
is irrelevant. The important point is that in both cases, care outside the
legislatively provided system is effectively prohibited.) In Morgentaler
the result of the monopolistic scheme was delay in treatment with attendant
physical risk and psychological suffering. In Morgentaler, as here,
people in urgent need of care face the same prospect: unless they fall within
the wealthy few who can pay for private care, typically outside the country,
they have no choice but to accept the delays imposed by the legislative scheme
and the adverse physical and psychological consequences this entails. As in Morgentaler,
the result is interference with security of the person under s. 7 of the Charter .
120
In Morgentaler, Dickson C.J. and Wilson J. found a deprivation of
security of the person because the legislative scheme resulted in the loss of
control by a woman over the termination of her pregnancy: see Morgentaler,
at pp. 56 and 173.
121
The issue in Morgentaler was whether a system for obtaining
approval for abortions (as an exception to a prohibition) that in practice
imposed significant delays in obtaining medical treatment unjustifiably
violated s. 7 of the Charter . Parliament had established a mandatory
system for obtaining medical care in the termination of pregnancy. The
sanction by which the mandatory public system was maintained differed:
criminal in Morgentaler, “administrative” in the case at bar. Yet the
consequences for the individuals in both cases are serious. In Morgentaler,
as here, the system left the individual facing a lack of critical care with no
choice but to travel outside the country to obtain the required medical care at
her own expense. It was this constraint on s. 7 security, taken from the
perspective of the woman facing the health care system, and not the criminal
sanction, that drove the majority analysis in Morgentaler. We therefore
conclude that the decision provides guidance in the case at bar.
122
In Rodriguez v. British Columbia (Attorney General), [1993] 3
S.C.R. 519, Sopinka J., writing for the majority, held that security of the
person encompasses “a notion of personal autonomy involving, at the very least,
control over one’s bodily integrity free from state interference and freedom
from state-imposed psychological and emotional stress” (pp. 587-88). The
prohibition against private insurance in this case results in psychological and
emotional stress and a loss of control by an individual over her own health.
123
Not every difficulty rises to the level of adverse impact on security of
the person under s. 7 . The impact, whether psychological or physical, must be
serious. However, because patients may be denied timely health care for a
condition that is clinically significant to their current and future health, s.
7 protection of security of the person is engaged. Access to a waiting list is
not access to health care. As we noted above, there is unchallenged evidence
that in some serious cases, patients die as a result of waiting lists for
public health care. Where lack of timely health care can result in death, s. 7
protection of life itself is engaged. The evidence here demonstrates that the
prohibition on health insurance results in physical and psychological suffering
that meets this threshold requirement of seriousness.
124
We conclude, based on the evidence, that prohibiting health insurance
that would permit ordinary Canadians to access health care, in circumstances
where the government is failing to deliver health care in a reasonable manner,
thereby increasing the risk of complications and death, interferes with life
and security of the person as protected by s. 7 of the Charter .
125
The remaining question is whether this inference is in accordance with
the principles of fundamental justice. “[I]f the state [interferes] with
security of the person, the Charter requires such interference to
conform with the principles of fundamental justice”: Morgentaler, at p.
54, per Dickson C.J.
B. Deprivation in Accordance with the
Principles of Fundamental Justice
126
Having concluded that the ban on private medical insurance constitutes a
deprivation of life and security of the person, we now consider whether that
deprivation is in accordance with the principles of fundamental justice. Our
colleagues Binnie and LeBel JJ. argue that the record here provides no ground
for finding that the deprivation violates the principles of fundamental
justice. With respect, we cannot agree.
127
In Rodriguez, at pp. 590-91 and 607, Sopinka J. for a majority of
this Court defined the principles of fundamental justice as legal principles
that are capable of being identified with some precision and are fundamental in
that they have general acceptance among reasonable people.
128
The principle of fundamental justice implicated in this case is that
laws that affect the life, liberty or security of the person shall not be
arbitrary. We are of the opinion that the evidence before the trial judge
supports a finding that the impugned provisions are arbitrary and that the
deprivation of life and security of the person that flows from them cannot
therefore be said to accord with the principles of fundamental justice.
(1) Laws Shall Not Be Arbitrary: A Principle
of Fundamental Justice
129
It is a well-recognized principle of fundamental justice that laws
should not be arbitrary: see, e.g., Malmo-Levine, at para. 135; Rodriguez,
at p. 594. The state is not entitled to arbitrarily limit its citizens’ rights
to life, liberty and security of the person.
130
A law is arbitrary where “it bears no relation to, or is inconsistent
with, the objective that lies behind [it]”. To determine whether this is the
case, it is necessary to consider the state interest and societal concerns that
the provision is meant to reflect: Rodriguez, at pp. 594-95.
131
In order not to be arbitrary, the limit on life, liberty and security
requires not only a theoretical connection between the limit and the
legislative goal, but a real connection on the facts. The onus of showing lack
of connection in this sense rests with the claimant. The question in every
case is whether the measure is arbitrary in the sense of bearing no real
relation to the goal and hence being manifestly unfair. The more serious the
impingement on the person’s liberty and security, the more clear must be the
connection. Where the individual’s very life may be at stake, the reasonable
person would expect a clear connection, in theory and in fact, between the
measure that puts life at risk and the legislative goals.
132
In Morgentaler, Beetz J., Estey J. concurring, found that the
limits on security of the person caused by rules that endangered health were
“manifestly unfair” and did not conform to the principles of fundamental
justice, in reasons that invoke arbitrariness. Some of the limitations bore no
connection to Parliament’s objectives, in his view, while others were
unnecessary to assure that those objectives were met (p. 110).
133
While cloaked in the language of manifest unfairness, this reasoning
evokes the principle of fundamental justice that laws must not be arbitrary,
and was so read in Rodriguez, at p. 594. Beetz J.’s concurring reasons
in Morgentaler thus serve as an example of how the rule against
arbitrariness may be implicated in the particular context of access to health
care. The fact that Dickson C.J., Lamer J. concurring, found that the scheme
offended a different principle of fundamental justice, namely that defences to
criminal charges must not be illusory, does not detract from the proposition
adopted by Beetz J. that rules that endanger health arbitrarily do not comply
with the principles of fundamental justice.
(2) Whether the Prohibition on Private
Medical Insurance is Arbitrary
134
As discussed above, interference with life, liberty and security of the
person is impermissibly arbitrary if the interference lacks a real connection
on the facts to the purpose the interference is said to serve.
135
The government argues that the interference with security of the person
caused by denying people the right to purchase private health insurance is
necessary to providing effective health care under the public health system.
It argues that if people can purchase private health insurance, they will seek
treatment from private doctors and hospitals, which are not banned under the
Act. According to the government’s argument, this will divert resources from
the public health system into private health facilities, ultimately reducing
the quality of public care.
136
In support of this contention, the government called experts in health
administration and policy. Their conclusions were based on the “common sense”
proposition that the improvement of health services depends on exclusivity
(R.R., at p. 591). They did not profess expertise in waiting times for
treatment. Nor did they present economic studies or rely on the experience of
other countries. They simply assumed, as a matter of apparent logic, that
insurance would make private health services more accessible and that this in
turn would undermine the quality of services provided by the public health care
system.
137
The appellants, relying on other health experts, disagreed and offered
their own conflicting “common sense” argument for the proposition that
prohibiting private health insurance is neither necessary nor related to
maintaining high quality in the public health care system. Quality public
care, they argue, depends not on a monopoly, but on money and management. They
testified that permitting people to buy private insurance would make
alternative medical care more accessible and reduce the burden on the public
system. The result, they assert, would be better care for all. The appellants
reinforce this argument by pointing out that disallowing private insurance
precludes the vast majority of Canadians (middle-income and low-income earners)
from accessing additional care, while permitting it for the wealthy who can
afford to travel abroad or pay for private care in Canada.
138
To this point, we are confronted with competing but unproven “common
sense” arguments, amounting to little more than assertions of belief. We are
in the realm of theory. But as discussed above, a theoretically defensible
limitation may be arbitrary if in fact the limit lacks a connection to the
goal.
139
This brings us to the evidence called by the appellants at trial on the
experience of other developed countries with public health care systems which
permit access to private health care. The experience of these countries
suggests that there is no real connection in fact between prohibition of health
insurance and the goal of a quality public health system.
140
The evidence adduced at trial establishes that many western democracies
that do not impose a monopoly on the delivery of health care have successfully
delivered to their citizens medical services that are superior to and more
affordable than the services that are presently available in Canada. This
demonstrates that a monopoly is not necessary or even related to the provision
of quality public health care.
141
In its report The Health of Canadians — The Federal Role, the
Standing Senate Committee on Social Affairs, Science and Technology discussed
in detail the situations in several countries, including Sweden, Germany and
the United Kingdom. The following discussion of the health care systems in
these three countries is drawn directly from the findings in volume 3 of that
report (The Health of Canadians — The Federal Role, vol. 3,
Health Care Systems in Other Countries, Interim Report (2002) (“Kirby
Report”)).
142
In Sweden, as in Canada, access to public health care is universal. The
public health care system is financed predominantly by the public sector
through a combination of general taxation and social insurance (i.e.,
employer/employee contributions) and employs a user fee mechanism. Unlike in
Canada, private health care insurance that covers the same benefits as public
insurance is “legal” in Sweden. However, only a small minority of the
population purchase private insurance. The result is a system of public health
care coverage that provides quality care on a broader basis than in Canada and
encompasses physicians, hospital services, drugs and dental care: Kirby
Report, vol. 3, at pp. 29-36. In Sweden, the availability of private health
care insurance appears not to have harmed the public health care system.
143
In Germany, public health care insurance is administered by 453 Sickness
Funds — private non‑profit organizations structured on a regional task or
occupational basis. Sickness Fund membership is compulsory for employees with
gross incomes lower than approximately $63,000 Canadian, and voluntary for
those with gross incomes above that level. Although all Sickness Funds are
regulated at the federal level through what is known as the “Social Code Book”,
they are essentially run by representatives of employees and employers. As in
Sweden, public health care coverage is broader in Germany than in Canada, including
physician services, hospitals, prescription drugs, diagnostic services, dental
care, rehabilitative care, medical devices, psychotherapists, nursing care at
home, medical services by non‑physicians (physiotherapists, speech
therapists, occupational therapists, etc.) and income support during sick
leave: Kirby Report, vol. 3, at p. 14.
144
In Germany, as in Sweden, private health insurance is available to
individuals at a certain income level who may voluntarily opt out of the
Sickness Funds. Private coverage is currently offered by 52 private insurance
companies that are obliged to offer an insurance policy with the same benefits
as the Sickness Funds at a premium that is no higher than the average maximum
contribution to the Sickness Funds. Private health care coverage is also
available to self‑employed people who are excluded from the Sickness
Funds and public servants who are de facto excluded from participating
in Sickness Funds as their health care bills are reimbursed at the rate of 50
percent by the federal government. Private insurance covers the remainder:
Kirby Report, vol. 3, at p. 15.
145
Despite the availability of alternatives, 88 percent of the German
population are covered by the public Sickness Funds: this includes 14 percent
to whom private insurance is available. Of the remaining 12 percent, only 9
percent are covered by private insurance and less than 1 percent have no health
insurance at all. The remaining 2 percent are covered by government insurance
for military and other personnel: Kirby Report, vol. 3, at p. 15.
146
The United Kingdom offers a comprehensive public health care system —
the National Health Service (NHS) — while also allowing for private insurance.
Unlike Canada, the United Kingdom allows people to purchase private health care
insurance that covers the same benefits as the NHS if these services are
supplied by providers working outside of the NHS. Despite the existence of
private insurance, only 11.5 percent of the population have purchased it: Kirby
Report, vol. 3, at pp. 37-44. Again, it appears that the public system has not
suffered as a result of the existence of private alternatives.
147
After reviewing a number of public health care systems, the Standing
Senate Committee on Social Affairs, Science and Technology concluded in the
Kirby Report that far from undermining public health care, private
contributions and insurance improve the breadth and quality of health care for
all citizens, and it ultimately concluded, at p. 66:
The evidence suggests that a contribution of direct
payments by patients, allowing private insurance to cover some services, even
in publicly funded hospitals, and an expanded role for the private sector in
the delivery of health services are the factors which have enabled countries to
achieve broader coverage of health services for all their citizens. Some
countries like Australia and Singapore openly encourage private sector
participation as a means to ensure affordable and sustainable health services.
148
Nor does it appear that private participation leads to the eventual
demise of public health care. It is compelling to note that not one of the
countries referred to relies exclusively on either private insurance or the
public system to provide health care coverage to its citizens. Even in the
United States, where the private sector is a dominant participant in the field
of health care insurance, public funding accounts for 45 percent of total
health care spending: Kirby Report, vol. 3, at p. 66.
149
In summary, the evidence on the experience of other western democracies
refutes the government’s theoretical contention that a prohibition on private
insurance is linked to maintaining quality public health care.
150
Binnie and LeBel JJ. suggest that the experience of other countries is
of little assistance. With respect, we cannot agree. This evidence was
properly placed before the trial judge and, unless discredited, stands as the
best guide with respect to the question of whether a ban on private insurance
is necessary and relevant to the goal of providing quality public health care.
The task of the courts, on s. 7 issues as on others, is to evaluate the issue
in the light, not just of common sense or theory, but of the evidence. This is
supported by our jurisprudence, according to which the experience of other
western democracies may be relevant in assessing alleged arbitrariness. In Rodriguez,
the majority of this Court relied on evidence from other western democracies,
concluding that the fact that assisted suicide was heavily regulated in other
countries suggested that Canada’s prohibition was not arbitrary:
pp. 601-5.
151
Binnie and LeBel JJ. also suggest that the government’s continued
commitment to a monopoly on the provision of health insurance cannot be
arbitrary because it is rooted in reliance on “a series of authoritative
reports [that analysed] health care in this country and in other countries”
(para. 258); they are referring here to the reports of Commissioner Romanow (Building
on Values: The Future of Health Care in Canada: Final Report (2002)), and
Senator Kirby. We observe in passing that the import of these reports, which
differ in many of their conclusions, is a matter of some debate, as attested by
our earlier reference to the Kirby Report. But the conclusions of other bodies
on other material cannot be determinative of this litigation. They cannot
relieve the courts of their obligation to review government action for
consistency with the Charter on the evidence before them.
152
When we look to the evidence rather than to assumptions, the connection
between prohibiting private insurance and maintaining quality public health care
vanishes. The evidence before us establishes that where the public system
fails to deliver adequate care, the denial of private insurance subjects people
to long waiting lists and negatively affects their health and security of the
person. The government contends that this is necessary in order to preserve
the public health system. The evidence, however, belies that contention.
153
We conclude that on the evidence adduced in this case, the appellants
have established that in the face of delays in treatment that cause
psychological and physical suffering, the prohibition on private insurance
jeopardizes the right to life, liberty and security of the person of Canadians
in an arbitrary manner, and is therefore not in accordance with the principles
of fundamental justice.
II. Section 1 of the Charter
154
Having concluded that the prohibition on private health insurance
constitutes a breach of s. 7 , we must now consider whether that breach can be
justified under s. 1 of the Charter as a reasonable limit demonstrably
justified in a free and democratic society. The evidence called in this case
falls short of demonstrating such justification.
155
The government undeniably has an interest in protecting the public
health regime. However, given the absence of evidence that the prohibition on
the purchase and sale of private health insurance protects the health care
system, the rational connection between the prohibition and the objective is
not made out. Indeed, we question whether an arbitrary provision, which by
reason of its arbitrariness cannot further its stated objective, will ever meet
the rational connection test under R. v. Oakes, [1986] 1 S.C.R. 103.
156
In addition, the resulting denial of access to timely and effective
medical care to those who need it is not proportionate to the beneficial
effects of the prohibition on private insurance to the health system as a
whole. On the evidence here and for the reasons discussed above, the
prohibition goes further than necessary to protect the public system: it is
not minimally impairing.
157
Finally, the benefits of the prohibition do not outweigh the deleterious
effects. Prohibiting citizens from obtaining private health care insurance
may, as discussed, leave people no choice but to accept excessive delays in the
public health system. The physical and psychological suffering and risk of
death that may result outweigh whatever benefit (and none has been demonstrated
to us here) there may be to the system as a whole.
158
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. Life, liberty and security
of the person must prevail. To paraphrase Dickson C.J. in Morgentaler,
at p. 73, if the government chooses to act, it must do so properly.
159
We agree with Deschamps J.’s conclusion that the prohibition against contracting
for private health insurance violates s. 1 of the Quebec Charter of Human
Rights and Freedoms and is not justifiable under s. 9.1. We also conclude
that this prohibition violates s. 7 of the Canadian Charter of Rights
and Freedoms and cannot be saved under s. 1.
160
We would allow the appeal, with costs to the appellants throughout.
The reasons of Binnie, LeBel and Fish JJ. were delivered by
Binnie and LeBel JJ.
(dissenting) —
I. Introduction
161
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. The appellants
argue that timely access to needed medical service is not being provided in the
publicly funded system and that the province cannot therefore deny to those
Quebeckers (who can qualify) the right to purchase private insurance to pay for
medical services whenever and wherever such services can be obtained for a fee,
i.e., in the private sector. This issue has been the subject of
protracted debate across Canada through several provincial and federal
elections. We are unable to agree with our four colleagues who would allow the
appeal that such a debate can or should be resolved as a matter of law by
judges. We find that, on the legal issues raised, the appeal should be
dismissed.
162
Our colleagues the Chief Justice and Major J. state at para. 105:
By imposing exclusivity and then failing to provide public health
care of a reasonable standard within a reasonable time, the government
creates circumstances that trigger the application of s. 7 of the [Canadian]
Charter . [Emphasis added.]
163
The Court recently held in Auton (Guardian ad litem of) v. British
Columbia (Attorney General), [2004] 3 S.C.R. 657, 2004 SCC 78, that the
government was not required to fund the treatment of autistic children. It did
not on that occasion address in constitutional terms the scope and nature of
“reasonable” health services. Courts will now have to make that
determination. What, then, are constitutionally required “reasonable health
services”? What is treatment “within a reasonable time”? What are the
benchmarks? How short a waiting list is short enough? How many MRIs does the
Constitution require? The majority does not tell us. The majority lays down
no manageable constitutional standard. The public cannot know, nor can judges
or governments know, how much health care is “reasonable” enough to satisfy
s. 7 of the Canadian Charter of Rights and Freedoms (“Canadian
Charter ”) and s. 1 of the Charter of Human Rights and Freedoms,
R.S.Q. c. C-12 (“Quebec Charter”). It is to be hoped that we will know
it when we see it.
164
The policy of the Canada Health Act, R.S.C. 1985, c. C-6 , and its
provincial counterparts is to provide health care based on need rather than on
wealth or status. The evidence certainly established that the public health
care system put in place to implement this policy has serious and persistent
problems. This does not mean that the courts are well placed to perform the
required surgery. The resolution of such a complex fact-laden policy debate
does not fit easily within the institutional competence or procedures of courts
of law. The courts can use s. 7 of the Canadian Charter to
pre-empt the ongoing public debate only if the current health plan violates an
established “principle of fundamental justice”. Our colleagues McLachlin C.J.
and Major J. argue that Quebec’s enforcement of a single-tier health plan meets
this legal test because it is “arbitrary”. In our view, with respect, the
prohibition against private health insurance is a rational consequence of
Quebec’s commitment to the goals and objectives of the Canada Health Act .
165
Our colleague Deschamps J. states at para. 4:
In essence, the question is whether Quebeckers who
are prepared to spend money to get access to health care that is, in
practice, not accessible in the public sector because of waiting lists may be
validly prevented from doing so by the state. [Emphasis added.]
This is so,
but of course it must be recognized that the liberty and security of Quebeckers
who do not have the money to afford private health insurance, who cannot
qualify for it, or who are not employed by establishments that provide it, are
not put at risk by the absence of “upper tier” health care. It is Quebeckers
who have the money to afford private medical insurance and can qualify for it
who will be the beneficiaries of the appellants’ constitutional challenge.
166
The Quebec government views the prohibition against private insurance as
essential to preventing the current single-tier health system from
disintegrating into a de facto two-tier system. The trial judge found,
and the evidence demonstrated, that there is good reason for this fear. The
trial judge concluded that a private health sector fuelled by private insurance
would frustrate achievement of the objectives of the Canada Health Act .
She thus found no legal basis to intervene, and declined to do so. This
raises the issue of who it is that should resolve these important
and contentious issues. Commissioner Roy Romanow makes the following
observation in his Report:
Some have described it as a perversion of Canadian
values that they cannot use their money to purchase faster treatment from a
private provider for their loved ones. I believe it is a far greater
perversion of Canadian values to accept a system where money, rather than need,
determines who gets access to care.
(Building on Values: The Future of Health Care in Canada: Final
Report (2002) (“Romanow Report”), at p. xx)
Whether or not
one endorses this assessment, his premise is that the debate is about social
values. It is not about constitutional law. We agree.
167
We believe our colleagues the Chief Justice and Major J. have extended
too far the strands of interpretation under the Canadian Charter laid
down in some of the earlier cases, in particular the ruling on abortion in R.
v. Morgentaler, [1988] 1 S.C.R. 30 (which involved criminal liability,
not public health policy). We cannot find in the constitutional law of Canada
a “principle of fundamental justice” dispositive of the problems of waiting
lists in the Quebec health system. 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.
168
Our colleagues the Chief Justice and Major J. write:
The task of the courts, on s. 7 issues as on others, is to
evaluate the issue in the light, not just of common sense or theory, but of the
evidence. [para. 150]
This, of
course, is precisely what the learned trial judge did after weeks of listening
to expert testimony and argument. In general, we agree with her conclusions.
There is nothing in the evidence to justify our colleagues’ disagreement with
her conclusion that the general availability of health insurance will lead to a
significant expansion of the private health sector to the detriment of the
public health sector. While no one doubts that the Quebec health plan is under
sustained and heavy criticism, and that at least some of the criticisms were
supported by the trial judge on the basis of the evidence, the trial judge rejected
the appellants’ contention (now accepted by our colleagues the Chief
Justice and Major J.) that the prohibition on private insurance is contrary to
the principles of fundamental justice. The trial judge’s conclusion was
endorsed by Justice Forget of the Quebec Court of Appeal. As a matter of law,
we see no reason to interfere with their collective and unanimous judgment on this
point. Whatever else it might be, the prohibition is not arbitrary.
169
We can all support the vague objective of “public health care of a
reasonable standard within a reasonable time”. Most people have opinions, many
of them conflicting, about how to achieve it. A legislative policy is not
“arbitrary” just because we may disagree with it. As our colleagues the Chief
Justice and Major J. fully recognize, the legal test of “arbitrariness” is
quite well established in the earlier case law. In our view that test is not
met in this case, for reasons we will develop in some detail. Suffice it to
say at this point that in our view, the 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.
A. The Argument About Adding an “Upper Tier”
to the Quebec Health Plan
170
The nature of a two-tier system is explained as follows:
In the broad sense, a two-tier system refers to two co-existing health
care systems: a publicly funded system and a privately funded system. This
definition implies that there is a differential access to health services
based on one’s ability to pay, rather than according to need. In other
words, those who can afford it may either obtain access to better quality care
or to quicker care in the privately funded system, while the rest of the
population continues to access health care only through the publicly funded
system. [Emphasis added.]
(The Health of Canadians — The Federal Role, vol. 4, Issues
and Options, Interim Report (2001) (“Kirby Report”), at p. 67)
It is evident,
of course, that neither Quebec nor any of the other provinces has a “pure”
single-tier system. In the area of uninsured medical services, for
example, the private sector is the dominant supplier. In other cases, the
private sector may perform the service but is paid by the state. The issue
here, as it is so often in social policy debates, is where to draw the line.
One can rarely say in such matters that one side of a line is “right” and the
other side of a line is “wrong”. Still less can we say that the boundaries of
the Quebec health plan are dictated by the Constitution. Drawing the line
around social programs properly falls within the legitimate exercise of the
democratic mandates of people elected for such purposes, preferably after a
public debate.
B. Background
to the Health Policy Debate
171
Prior to 1961, only 53 percent of Canadians were covered by some form of
health insurance, leaving approximately 8 million Canadians without insurance
coverage (Voluntary Medical Insurance and Prepayment (1965) (“Berry
Commission”), at pp. 177-78). At that time, health care costs were the number
one cause of personal bankruptcy in Canada.
172
In these circumstances, the people of Quebec, through their elected
representatives, opted for a need-based, rather than a wealth-based, health
care system. In the Castonguay-Nepveu Report, said to be the foundation of the
public health care system in Quebec, it was stated:
The maintenance of the people’s health more and more is accepted as
a collective responsibility. This is not surprising since it must be
admitted that without vigorous State action, the right to health would remain a
purely theoretical notion, without any real content. [Emphasis added.]
(Report of the Commission of Inquiry on Health and Social Welfare,
vol. IV, Health, t. 1, The Present Situation (1970)
(“Castonguay-Nepveu Report”), at p. 30)
173
The Kirby Report noted in 2001 that “Canadians’ attachment to a sense of
collective responsibility for the provision of health care has remained largely
intact despite a shift towards more individualistic values” (vol. 4, at p.
137); see also Emerging Solutions: Report and Recommendations (2001)
(“Clair Report”), at p. 243; La complémentarité du secteur privé dans la
poursuite des objectifs fondamentaux du système public de santé au Québec:
Rapport du groupe de travail (1999) (“Arpin Report”), at p. 34. Both the
Kirby Report and the Romanow Report contained extensive investigations into the
operations and problems of the current public health systems across Canada.
They acknowledged that the financing of health care is putting a growing stress
on public finances and national resources. For fiscal year 2004-2005,
federal/provincial/territorial spending on health care is estimated to be about
$88 billion (Finance Canada, Federal Support for Health Care: The Facts
(September 2004)). Whether this growing level of expenditure is
sustainable, justified or wise is a matter on which we all have opinions. In
the absence of a violation of a recognized “principle of fundamental justice”,
the opinions that prevail should be those of the legislatures.
174
Not all Canadian provinces prohibit private health insurance, but all of
them (with the arguable exception of Newfoundland) take steps to protect the
public health system by discouraging the private sector, whether by prohibiting
private insurance (Quebec, Ontario, Manitoba, British Columbia, Alberta and
Prince Edward Island) or by prohibiting doctors who opt out of the public
sector, from billing their private patients more than the public sector tariff,
thereby dulling the incentive to opt out (Ontario, Manitoba and Nova Scotia),
or eliminating any form of cross-subsidy from the public to the private sector
(Quebec, British Columbia, Alberta, Prince Edward Island, Saskatchewan and New
Brunswick). 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 public
sector and its ability to achieve the objectives of the Canada Health Act .
175
The argument for a “two-tier system” is that it will enable “ordinary”
Canadians to access private health care. Indeed, this is the view taken by our
colleagues the Chief Justice and Major J. who quote the appellants’ argument
that “disallowing private insurance precludes the vast majority of Canadians
(middle-income and low-income earners) from accessing” private health care
(para. 137). This way of putting the argument suggests that the Court has a
mandate to save middle‑income and low-income Quebeckers from themselves,
because both the Romanow Report and the Kirby Report found that the vast
majority of “ordinary” Canadians want a publicly financed single-tier (more or
less) health plan to which access is governed by need rather than wealth and
where the availability of coverage is not contingent on personal insurability.
Our colleagues rely in part on the experience in the United States (para. 148)
and the fact that public funding in that country accounts for only 45 percent
of total health care spending. But if we look at the practical reality of the
U.S. system, the fact is that 15.6 percent of the American population
(i.e., about 45 million people) had no health insurance coverage at all in
2003, including about 8.4 million children. As to making health care available
to medium and low-income families, the effect of “two-tier” health coverage in
the U.S. is much worse for minority groups than for the majority. Hispanics
had an uninsured rate of 32.7 percent, and African Americans had an uninsured
rate of 19.4 percent. For 45 million Americans, as for those “ordinary”
Quebeckers who cannot afford private medical insurance or cannot obtain it
because they are deemed to be “bad risks”, it is a matter of public health care
or no care at all (C. DeNavas-Walt, B. D. Proctor and R. J. Mills, Income,
Poverty, and Health Insurance Coverage in the United States: 2003 (2004),
at pp. 56‑59).
176
It would be open to Quebec to adopt a U.S.-style health care system. No
one suggests that there is anything in our Constitution to prevent it. But to
do so would be contrary to the policy of the Quebec National Assembly, and its
policy in that respect is shared by the other provinces and the federal
Parliament. As stated, Quebec further takes the view that significant growth
in the private health care system (which the appellants advocate) would
inevitably damage the public system. Our colleagues the Chief Justice and
Major J. disagree with this assessment, but governments are entitled to act on
a reasonable apprehension of risk of such damage. As noted by the majority in R.
v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, at para. 133:
Members of Parliament are elected to make these sorts of decisions, and
have access to a broader range of information, more points of view, and a more
flexible investigative process than courts do.
While the
existence of waiting times is undoubted, and their management a matter of
serious public concern, the proposed constitutional right to a two-tier health
system for those who can afford private medical insurance would precipitate a
seismic shift in health policy for Quebec. We do not believe that such a
seismic shift is compelled by either the Quebec Charter or the Canadian
Charter .
II. Analysis
177
The appellants’ principal argument is that the existence of waiting
lists in Quebec and the concurrent prohibition on private health insurance
violate s. 7 of the Canadian Charter , which guarantees everyone the
right to life, liberty and security of the person, and the right not to be
deprived thereof except in accordance with the principles of fundamental
justice.
178
The legal question raised by our colleagues the Chief Justice and
Major J. under the Canadian Charter is whether or not the Quebec health
plan violates a principle of fundamental justice and, if so, whether the
plan can nevertheless be saved under s. 1.
179
The reasons of our colleague Deschamps J., on the other hand, are
limited to s. 1 of the Quebec Charter which protects the right of
every human being to life and to personal security, inviolability and freedom.
The Quebec Charter does not talk explicitly about “principles of
fundamental justice”. Nevertheless, in our view, the legislative limits fixed
by the Quebec Charter are no more favourable to the appellants’ case
than are those fixed by the Canadian Charter . Rights under the Quebec
Charter are to be exercised with “proper” regard to “democratic” values
(including those of the electorate) “public order and the general well-being of
the citizens of Québec” (including those who cannot afford, or may not qualify
for, private health insurance coverage). We address this issue below starting
at para. 266.
180
Our colleagues the Chief Justice and Major J. agree with the appellants
that there is a violation of s. 7 of the Canadian Charter . As
mentioned earlier, their opinion rests in substantial part on observations made
by various members of this Court in Morgentaler. At issue in that case
was the criminal liability of doctors and their patients under s. 251 of
the Criminal Code, R.S.C. 1970, c. C-34, for performing abortions. The
nub of the legal challenge was that in creating the abortion offence Parliament
had qualified the charge with a “therapeutic abortion” defence, but the defence
was not working. The factual and legal issues raised in that criminal law
problem are, we think, far removed from the debate over a two-tiered health
system. Morgentaler applied a “manifest unfairness” test which has
never been adopted by the Court outside the criminal law, and certainly not in
the context of the design of social programs. The Morgentaler judgment
fastened on internal inconsistencies in s. 251 of the Code,
which find no counterpart here. In our view, with respect, Morgentaler
provides no support for the appellants in this case, as we discuss commencing
at para. 259.
181
As stated, we accept the finding of the courts below that a two-tier
health care system would likely have a negative impact on the integrity,
functioning and viability of the public system: [2000] R.J.Q. 786, at p. 827;
reasons of Forget J.A., [2002] R.J.Q. 1205, at p. 1215. Although this
finding is disputed by our colleagues the Chief Justice and Major J. (a point
to which we will return), it cannot be contested that as a matter of principle,
access to private health care based on wealth rather than need
contradicts one of the key social policy objectives expressed in the Canada
Health Act . The state has established its interest in promoting the equal
treatment of its citizens in terms of health care. The issue of arbitrariness
relates only to the validity of the means adopted to achieve that policy
objective. Counsel for the appellant Zeliotis was not oblivious to the
potential danger posed by the re-allocation of health resources to the private
sector. In opening his oral submissions to the Court, he acknowledged the need
as a matter of social policy to protect the public health system:
[translation] May a
person use his or her own resources to obtain medical care outside the public
system if the public system is unable to provide medical care within an
acceptable time and if doing so would not deprive the public system of the
resources it needs? . . .
. . . we recognize that it is perfectly legitimate
for the state to make sure that the public system has on a priority basis all
the resources it needs to function. Thus, we concede that, if this were in
fact impossible, our appeal should fail. [Emphasis added.]
(Oral Transcript, Mr. Trudel, at p. 25)
While Quebec does not outlaw private health care, which is therefore
accessible to those with cash on hand, it wishes to discourage its growth.
Failure to stop the few people with ready cash does not pose a structural
threat to the Quebec health plan. Failure to stop private health insurance
will, as the trial judge found, do so. Private insurance is a condition
precedent to, and aims at promoting, a flourishing parallel private health care
sector. For Dr. Chaoulli in particular, that is the whole point of this
proceeding.
A. Preliminary Objections
182
The Attorneys General made two preliminary objections: first, that the
claims raised on this appeal are not properly justiciable; and second, that
neither Dr. Chaoulli nor Mr. Zeliotis has standing to bring their claim.
These objections should be rejected.
(1) Justiciability
183
The Attorneys General of Canada and Quebec argue that the claims
advanced by the appellants are inherently political and, therefore, not
properly justiciable by the courts. We do not agree. Section 52 of the Constitution
Act, 1982 affirms the constitutional power and obligation of courts
to declare laws of no force or effect to the extent of their inconsistency with
the Constitution. Where a violation stems from a Canadian Charter breach,
the court may also order whatever remedy is “appropriate and just” in the
circumstances under s. 24 . There is nothing in our constitutional arrangement
to exclude “political questions” from judicial review where the Constitution
itself is alleged to be violated.
184
Nevertheless, a correct balance must be struck between the judiciary
and the other branches of government. Each branch must respect the limits of
its institutional role. As stated in Vriend v. Alberta, [1998] 1 S.C.R.
493, “the courts are to uphold the Constitution and have been expressly invited
to perform that role by the Constitution itself. But respect by the courts for
the legislature and executive role is as important as ensuring that the other
branches respect each others’ role and the role of the courts” (para. 136).
185
In the present case, the appellants are challenging the legality of
Quebec’s prohibition against private health insurance. While the issue raises
“political questions” of a high order, the alleged Canadian Charter
violation framed by the appellants is in its nature justiciable, and the Court
should deal with it.
(2) Standing of Dr. Chaoulli and Mr. Zeliotis
186
Article 55 of the Code of Civil Procedure, R.S.Q., c. C-25,
requires that the party bringing an action have a “sufficient interest” in the
litigation. In our view, for the reasons given by the trial judge, as
previously mentioned, Mr. Zeliotis has not demonstrated that systemic waiting
lists were the cause of his delayed treatment.
187
Dr. Chaoulli’s situation is different. He offers himself as an advocate
for private health insurance. He is a medically trained individual who has a
history of conflict with the Quebec health authorities and of disobedience to
their rules governing medical practice. The trial judge found Dr. Chaoulli’s
motives to be questionable:
[translation]
At first, Dr. Chaoulli was supposed to complete his initial contract in a
remote region. He did not do so but returned to Montréal and, contrary to what
he was entitled to do, began practising on the South Shore. He then
obstinately insisted on practising medicine as he pleased, disregarding the
regional board’s decisions. Dr. Chaoulli never testified that he had received
inadequate care or that the system had not responded to his personal health
needs. He still faces substantial penalties at the Régie de l’assurance‑maladie
du Québec. He was released from his obligations, returned to the public
system, and is still not satisfied. All this leads the Court to question Dr.
Chaoulli’s real motives in this dispute. It is impossible not to be struck by
the contradictions in his testimony and by the impression that Dr. Chaoulli has
embarked on a crusade that now raises questions transcending his own personal
case. [p. 795]
188
Nevertheless, we accept that the appellants have a sufficient interest
in the constitutional questions to be given public interest standing.
In Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R.
575, at p. 598, Martland J. wrote that to qualify in that regard, a person must
satisfy three requirements:
[T]o establish status as a plaintiff in a suit seeking a declaration
that legislation is invalid, if there is a serious issue as to its invalidity,
a person need only to show that he is affected by it directly or that he has a
genuine interest as a citizen in the validity of the legislation and that there
is no other reasonable and effective manner in which the issue may be brought
before the Court.
See also Canadian
Council of Churches v. Canada (Minister of Employment and Immigration),
[1992] 1 S.C.R. 236.
189
All three of these conditions are met in the present case. First, there
is a serious challenge to the invalidity of the impugned provisions. Access to
medical care is a concern of all Quebec residents. Second, Dr. Chaoulli and
Mr. Zeliotis are both Quebec residents and are therefore directly affected by
the provisions barring access to private health insurance. Third, the
appellants advance the broad claim that the Quebec health plan is
unconstitutional for systemic reasons. They do not limit themselves to
the circumstances of any particular patient. Their argument is not limited to
a case-by-case consideration. They make the generic argument that Quebec’s
chronic waiting lists destroy Quebec’s legislative authority to draw the line
against private health insurance. From a practical point of view, while
individual patients could be expected to bring their own cases to court if they
wished to do so, it would be unreasonable to expect a seriously ailing person
to bring a systemic challenge to the whole health plan, as was done here. The
material, physical and emotional resources of individuals who are ill, and
quite possibly dying, are likely to be focussed on their own circumstances. In
this sense, there is no other class of persons that is more directly affected
and that could be expected to undertake the lengthy and no doubt costly
systemic challenge to single-tier medicine. Consequently, we agree that the
appellants in this case were rightly granted public interest standing. However,
the corollary to this ruling is that failure by the appellants in their
systemic challenge would not foreclose constitutional relief to an individual
based on, and limited to, his or her particular circumstances.
B. Canadian Charter of Rights and Freedoms
190
The Chief Justice and Major J. would strike down the Quebec legislation
on the basis of s. 7 of the Canadian Charter , which provides:
7. Everyone has the right to life, liberty
and security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
191
Like our colleagues McLachlin C.J. and Major J., we accept the trial
judge’s conclusion that in some circumstances some Quebeckers may
have their life or “security of the person” put at risk by the prohibition
against private health insurance. However, unlike our colleagues, we agree
with the trial judge and the Quebec Court of Appeal that this situation,
however deplorable, is not capable of resolution as a matter of constitutional
law. At the same time, we reject some of the constraints that the Attorney
General of Quebec would place on the Court’s analysis.
(1) The Application of Section 7 to
Matters Not Falling Within the Administration of Justice
192
The Attorney General of Quebec argues that s. 7 does not protect
economic rights. This is true, but is somewhat beside the point. The
appellants seek access to a two-tier health system. The fact it will cost
money to the people in the “upper tier” is an incidental (although important)
aspect of their challenge, which is principled in nature.
193
Section 7 gives rise to some of the most difficult issues in Canadian
Charter litigation. Because s. 7 protects the most basic interests of
human beings — life, liberty and security — claimants call on the courts to
adjudicate many difficult moral and ethical issues. It is therefore prudent,
in our view, to proceed cautiously and incrementally in applying s. 7 ,
particularly in distilling those principles that are so vital to our society’s
conception of “principles of fundamental justice” as to be constitutionally
entrenched.
194
At first blush, s. 15 of the Health Insurance Act, R.S.Q.,
c. A-29, and s. 11 of the Hospital Insurance Act, R.S.Q.,
c. A-28, seem far removed from the usual concerns of s. 7 of the Canadian
Charter . The provisions sought to be invalidated provide:
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.
195
The present challenge does not arise out of an adjudicative context or
one involving the administration of justice. Sections 11 and 15 are plainly
not adjudicative provisions. Nor are they administrative provisions in the
sense of being part of the administrative scheme for the provision of health
services, though they do form part of the regulatory health regime. Section 11
is a civil prohibition against the making or renewing of a contract for
insurance for “insured services” and against the payment under such a contract
for “insured services”. Any contract entered into in contravention of s. 11
and s. 15 would be absolutely null and unenforceable because it is contrary to
the general interest: art. 1417 of the Civil Code of Québec, S.Q. 1991,
c. 64. Although small fines may be imposed for the breach of these provisions,
we think that regulations providing for such fines, which are wholly incidental
to the regulatory purpose, would not create a sufficient nexus with the adjudicative
context to ground the application of s. 7 on that basis.
196
It will likely be a rare case where s. 7 will apply in circumstances
entirely unrelated to adjudicative or administrative proceedings. That said,
the Court has consistently left open the possibility that s. 7 may apply
outside the context of the administration of justice: Gosselin v. Quebec
(Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84, at paras. 78-80 and
414.
197
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. 8 to 14 : see, e.g., Reference re ss. 193 and
195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (“Prostitution
Reference”), at pp. 1171-74. In Blencoe v. British Columbia (Human
Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44, the majority held
that s. 7 can apply outside of the criminal context. Further, in Winnipeg
Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48, the
Court noted that it had held in B. (R.) v. Children’s Aid Society of
Metropolitan Toronto, [1995] 1 S.C.R. 315, that the wardship provisions of
the Child Welfare Act, R.S.O. 1980, c. 66, denying parents the
ability to choose medical treatment for their infants, implicated the s. 7
liberty interests of parents.
198
Placing s. 7 under the heading “Legal Rights” in the Canadian Charter
does not narrow or control its scope. Such a result would be unduly
formalistic and inconsistent with the large, liberal and purposive
interpretation of s. 7 that has been the hallmark of this Court’s approach
since Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486. This is evidenced
by the refusal of the majority in that case to restrict “principles of
fundamental justice” solely to procedural guarantees. Lamer J. observed that
“the principles of fundamental justice are to be found in the basic tenets and
principles, not only of our judicial process, but also of the other
components of our legal system” (p. 512 (emphasis added)).
199
Claimants whose life, liberty or security of the person is put at risk
are entitled to relief only to the extent that their complaint arises from a
breach of an identifiable principle of fundamental justice. The real
control over the scope and operation of s. 7 is to be found in the
requirement that the applicant identify a violation of a principle of
fundamental justice. The further a challenged state action lies from the
traditional adjudicative context, the more difficult it will be for a claimant
to make that essential link. As will become clear, that is precisely the
difficulty encountered by the claimants here: they are unable to demonstrate
that any principle of fundamental justice has been contravened.
(2) Which Section 7 Interests Are
Engaged?
200
Section 7 interests are enumerated as life, liberty and security of the
person. As stated, we accept the trial judge’s finding that the current state
of the Quebec health system, linked to the prohibition against health insurance
for insured services, is capable, at least in the cases of some
individuals on some occasions, of putting at risk their life or security
of the person.
201
We do not agree with the appellants, however, that the Quebec Health
Plan puts the “liberty” of Quebeckers at risk. The argument that “liberty”
includes freedom of contract (in this case to contract for private medical
insurance) is novel in Canada, where economic rights are not included in the Canadian
Charter and discredited in the United States. In that country, the liberty
of individuals (mainly employers) to contract out of social and economic
programs was endorsed by the Supreme Court in the early decades of the 20th
century on the theory that laws that prohibited employers from entering into
oppressive contracts with employees violated their “liberty” of contract; see,
e.g., Lochner v. New York, 198 U.S. 45 (1905), at p. 62:
. . . a prohibition to enter into any contract of labor in a bakery
for more than a certain number of hours a week, is, in our judgment, so wholly
beside the matter of a proper, reasonable and fair provision, as to run counter
to that liberty of person and of free contract provided for in the Federal
Constitution.
Of this line
of cases, which was not brought to an end until West Coast Hotel Co. v.
Parrish, 300 U.S. 379 (1937), Professor L. H. Tribe has written that the
Supreme Court of the United States:
. . . relied on the Fourteenth Amendment’s Due Process Clause
to strike down economic legislation that the Court saw as improperly infringing
on contractual liberty, but in which the Court was widely (even if not
always correctly) perceived to be substituting its own judgment, in the absence
of any actual constitutional mandate, for that of the legislature. [Emphasis
added.]
(American Constitutional Law (3rd ed. 2000), vol. 1, at p. 1318)
202
Nor do we accept that s. 7 of the Canadian Charter
guarantees Dr. Chaoulli the “liberty” to deliver health care in a private
context. The trial judge correctly concluded that [translation] “s. 7 of the Canadian charter does
not protect a physician’s right to practise his or her profession without
restrictions in the private sector. That is a purely economic right.” (p. 823
(emphasis in original)) The fact that state action constrains an individual’s
freedom by eliminating career choices that would otherwise be available does
not in itself attract the protection of the liberty interest under s. 7 . The
liberty interest does not, for example, include the right to transact business
whenever one wishes: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R.
713, at p. 786. Nor does it protect the right to exercise one’s chosen
profession: Prostitution Reference, at p. 1179, per Lamer
J. We would therefore reject Dr. Chaoulli’s claim on behalf of care providers
that their liberty interest under either the Canadian Charter or the Quebec
Charter has been infringed by Quebec’s single-tier public health system.
(3) Is There a Constitutional Right to Spend
Money?
203
Reference has already been made to the question raised by our colleague
Deschamps J. at para. 4 of her reasons:
In essence, the question is whether Quebeckers who
are prepared to spend money to get access to health care that is, in practice,
not accessible in the public sector because of waiting lists may be validly
prevented from doing so by the state.
While we do
not accept that there is a constitutional right “to spend money”, which would
be a property right, we agree that if the public system fails to deliver
life-saving care and an individual is simultaneously prevented from seeking
insurance to cover the cost of that care in a private facility, then the
individual is potentially caught in a situation that may signal a deprivation
of his or her security of the person.
204
This is not to say that every encounter with a waiting list will trigger
the application of s. 7 . The interference with one’s mental well-being must
not be trivial. It must rise above the ordinary anxiety caused by the
vicissitudes of life, but it need not be so grave as to lead to serious mental
anguish or nervous breakdown. Some individuals that meet this test are
to be found entangled in the Quebec health system. The fact that such
individuals do not include the appellants personally is not fatal to their
challenge because they come here as plaintiffs purporting to represent the
public interest.
205
The Court has found a deprivation of one’s psychological integrity sufficient
to ground a s. 7 claim in a range of cases. In Morgentaler, the
majority held that the impugned abortion provisions seriously compromised a
woman’s physical and psychological integrity in a manner that constituted an
infringement of her security of the person: at pp. 56-57, per Dickson
C.J. (Lamer J. concurring), at pp. 104-5, per Beetz J. (Estey J.
concurring); at pp. 173-74, per Wilson J. The Court subsequently held
that the criminal prohibition against assisting someone to commit suicide constituted
an impingement of the claimant’s physical and psychological integrity that
amounted to a deprivation of the right to security of the person under s. 7 ;
the claimant in that case was suffering from Lou Gehrig’s disease, a rapidly
deteriorating condition, which results in paralysis and eventually requires
invasive life-prolonging measures to be taken: Rodriguez v. British Columbia
(Attorney General), [1993] 3 S.C.R. 519. More recently, in New
Brunswick (Minister of Health and Community Services) v. G. (J.),
[1999] 3 S.C.R. 46, the Court was unanimous in saying that removal of a child
from parental custody by the state pursuant to its wardship jurisdiction
constituted a serious interference with the psychological integrity of the
parent that deprived the parent of the security of the person.
206
It may also be that a lack of timely medical intervention will put the physical
security of the patient at risk. The condition of a cardiac or cancer
patient, for example, may seriously deteriorate if treatment is not available
quickly.
207
As stated, the principal legal hurdle to the appellants’ Canadian
Charter challenge is not the preliminary step of identifying a s. 7
interest potentially affected in the case of some Quebeckers in some
circumstances. The hurdle lies in their failure to find a fundamental
principle of justice that is violated by the Quebec health plan so as to
justify the Court in striking down the prohibition against private insurance
for what the government has identified as “insured services”.
C. Principles of Fundamental Justice
208
For a principle to be one of fundamental justice, it must count among
the basic tenets of our legal system: Re B.C. Motor Vehicle Act,
at p. 503. It must generally be accepted as such among reasonable people. As
explained by the majority in Malmo-Levine, at para. 113:
The requirement of “general acceptance among
reasonable people” enhances the legitimacy of judicial review of state action,
and ensures that the values against which state action is measured are not just
fundamental “in the eye of the beholder only”: Rodriguez, at pp.
607 and 590 . . . . In short, for a rule or principle to
constitute a principle of fundamental justice for the purposes of s. 7 , it must
be a legal principle about which there is significant societal
consensus that it is fundamental to the way in which the legal system
ought fairly to operate, and it must be identified with sufficient precision to
yield a manageable standard against which to measure deprivations of
life, liberty or security of the person. [First emphasis in Rodriguez;
subsequent emphasis added.]
See also Canadian
Foundation for Children, Youth and the Law v. Canada (Attorney General),
[2004] 1 S.C.R. 76, 2004 SCC 4, at para. 8.
209
Thus, the formal requirements for a principle of fundamental justice are
threefold. First, it must be a legal principle. Second, the reasonable
person must regard it as vital to our societal notion of justice, which implies
a significant societal consensus. Third, it must be capable of being identified
with precision and applied in a manner that yields predictable results.
These requirements present insurmountable hurdles to the appellants. The aim
of “health care of a reasonable standard within a reasonable time” is not a legal
principle. There is no “societal consensus” about what it means or how to
achieve it. It cannot be “identified with precision”. As the testimony in
this case showed, a level of care that is considered perfectly reasonable by
some doctors is denounced by others. Finally, we think it will be very
difficult for those designing and implementing a health plan to predict when
its provisions cross the line from what is “reasonable” into the forbidden
territory of what is “unreasonable”, and how the one is to be distinguished
from the other.
(1) The Experts Recognized That the Potential
Market for Health Services Is Almost Limitless, and the Supply Must Therefore
Be Rationed Whether by Governments in the Public Sector or Insurers or Other
Health Care Providers in the Private Sector
210
Much of the argument pursued by the Chief Justice and Major J., as well
as by Deschamps J. in her reasons relating to the Quebec Charter,
revolves around the vexing issue of waiting lists, which have notoriously
fuelled major public debates and controversies.
211
The case history of the appellant Zeliotis illustrates why rationing of
health services is necessary and how it works. The trial judge, having heard
all the evidence, concluded that the delays Mr. Zeliotis experienced in
obtaining hip surgery were caused not by excessive waiting lists but by a
number of other factors, including his pre-existing depression and his
indecision and unfounded medical complaints (p. 793):
[translation] The truth
is that, in light of his personal medical impediments, the fact that he was
already suffering from depression, his indecision and his complaints, which in
many respects were unwarranted, it is hard to conclude that the delays that
occurred resulted from lack of access to public health services, and in fact
even Mr. Zeliotis’s complaints about delays are questionable. It was he who
initially wanted a second opinion, it was his surgeon who hesitated because of
his problems, and so on. Thus, his complaint to the director of professional
services at the Royal Victoria Hospital . . . was not corroborated. An out‑of‑court
examination in connection with another case is puzzling, as Mr. Zeliotis said
he was in very good health . . . .
Mr. Zeliotis sought a second opinion, which he was entitled to do,
and this further delayed his surgery. More importantly, his physician believed
that Mr. Zeliotis was not an “ideal candidate” for the surgery because he had
suffered a heart attack and undergone bypass surgery earlier that year.
Accordingly, neither the mere existence of waiting lists, nor the fact that
certain individuals like Mr. Zeliotis feel unfairly dealt with, necessarily
points to a constitutional problem with the public health system as a whole.
(a) There Is No Consensus
About What Constitutes “Reasonable” Waiting Times
212
A review of the expert evidence and the medical literature suggests that
there is no consensus regarding guidelines for timely medical treatment. Dr.
Wright remarked:
So the issue of defining what is a reasonable
waiting list is a very difficult one because if you have a hundred (100)
surgeons, you have a hundred (100) opinions, it’s very difficult to come to a
consensus on these questions. [A.R., at p. 1186]
There are
currently no national standards for timely treatment: see C. Sanmartin et al.,
“Waiting for medical services in Canada: lots of heat, but little light”
(2000), 162 C.M.A.J. 1305; S. Lewis et al., “Ending waiting-list
mismanagement: principles and practice” (2000), 162 C.M.A.J. 1297; N. E.
Mayo et al., “Waiting time for breast cancer surgery in Quebec” (2001), 164 C.M.A.J.
1133.
213
It is therefore convenient to look further into the expert evidence, not
to dispute the existence of waiting list problems or to understate the level of
public anxiety they create, but simply to illustrate the complexity of the
situation and the dangers of oversimplification.
(b) The Experts Accepted by the Trial Judge
Relied on More Than Just “Common Sense”
214
Our colleagues the Chief Justice and Major J. dismiss the experts
accepted by the trial judge as relying on little more than “common sense”
(para. 137). Although we agree that the experts offered “common sense”, they
offered a good deal more. The experts heard by the trial court included Mr.
Claude Castonguay, who was Quebec’s Minister of Health in 1970 (the [translation] “father of Quebec health
insurance”) and who chaired the Commission of Inquiry on
Health and Social Welfare, as well as a number of other public health experts,
including Dr. Fernand Turcotte, a professor of medicine at Laval University,
who holds degrees from the University of Montreal and Harvard and has been
certified by the Royal College of Physicians and Surgeons of Canada as a
specialist in community medicine; Dr. Howard Bergman, Chief of the Division of
Geriatric Medicine at Montreal’s Jewish General Hospital, Director of the
Division of Geriatric Medicine and a professor in the departments of Internal
Medicine and Family Medicine at McGill University, a fellow of the American
Geriatrics Society and an associate professor at the University of Montreal in
the department of health administration; Dr. Charles J. Wright, a physician
specialized in surgery, Director of the Centre for Clinical Epidemiology &
Evaluation at the Vancouver Hospital & Health Sciences Centre, and a
faculty member of the University of British Columbia and of the British
Columbia Office of Health Technology Assessment; Professor Jean-Louis Denis, a
community health doctor of the University of Montreal’s [translation] “health services organization”;
Professor Theodore R. Marmor, a professor of public policy and management and
of political science at Yale University, who holds a PhD from Harvard
University in politics and history and is a graduate research fellow at Oxford;
and Dr. J. Edwin Coffey, a graduate of McGill University in medicine who
specializes in obstetrics and gynecology, a fellow of the Royal College of
Physicians and Surgeons of Canada and of the American College of Obstetricians
and Gynecologists, and a former associate professor in the McGill University
Faculty of Medicine. The respondent’s experts testified and were
cross-examined. The trial judge found them to be credible and reliable. We
owe deference to her findings in this respect.
215
The trial judge, having heard the evidence, concluded as follows:
[translation] . . .
although some of these specialists indicated a desire to be free to obtain
private insurance, none of them gave their full and absolute support to the
applicants' proposals, as they explained that it was neither clear nor
obvious that a reorganization of the health system with a parallel private
system would solve all the existing problems of delays and access. On the
contrary, the specialists who testified remained quite circumspect about this
complex and difficult question. [Emphasis added; p. 796.]
The exception to the consensus was the appellants’ expert, Dr.
Coffey, who stated that in his opinion the development of a private insurance
scheme would not affect the public health scheme. This is the argument
accepted by our colleagues the Chief Justice and Major J. However on this
point the trial judge observed, as on others, [translation] “that Dr. Coffey stood alone in both his
expert evaluation and the conclusions he reached” (p. 808 (emphasis in
original)).
216
In addition, the Court was presented with a number of government reports
and independent studies. They bear out the wisdom of the comment in Un
avenir pour le système public de santé (1998) (“Denis Report”), at p. 20:
[translation] “It is important
that we quickly distance ourselves from a position advocating simple solutions
to complex problems.”
(c) The Lack of Accurate
Data
217
How serious is the waiting-list problem? No doubt it is serious; but how
serious? The first major evidentiary difficulty for the appellants is the lack
of accurate data. The major studies concluded that the real picture concerning
waiting lists in Canada is subject to contradictory evidence and conflicting
claims (Romanow Report, at p. 139, and the Kirby Report, vol. 4, at p. 41, and
vol. 6, at pp. 109-10). This can also be seen from the evidence of the
experts who testified at trial in the present case (see Waiting Lists in
Canada and the Potential Effects of Private Access to Health Care Services (1998)
(“Wright Report”), at p. 7; Le temps d’attente comme instrument de gestion
du rationnement dans les services de santé du Canada (1998) (“Turcotte
Report”)), and from the available literature (see Waiting Lists and Waiting
Times for Health Care in Canada: More Management!! More Money?? (1998)
(“McDonald Report”)). At trial, Dr. Wright also discounted the value of
random opinion surveys:
The information is based on no formal structured data collection of any
kind and has no credibility whatever with any health service researcher or
epidemiologist.
(Wright Report, at p. 8)
218
In a commentary for the Canadian Medical Association Journal, S.
Lewis et al. observed:
The waiting-list “nonsystem” in Canada is a classic
case of forced decision-making in the absence of good management information.
There is a surfeit of nonstandardized data and a dearth of usable,
policy-oriented information about waiting lists. The most serious consequence
is that information and management defects are almost always prematurely
diagnosed as financial shortages. [p. 1299]
219
Professor Marmor also subscribed to the view that waiting lists cannot
serve as a “simple indicator” of a failing health care system (Expert
Witness Report (1998) (“Marmor Report”), at p. 11) in part because studies
of waiting lists have demonstrated that up to one third of patients on lists no
longer need to be on them because the procedure has already been performed
elsewhere; the patient has already been admitted on an emergency basis; the
patient no longer wishes the procedure to be performed; the procedure is no
longer medically necessary; the patient has already been called in to have the
procedure but refused for personal reasons or due to inconvenient timing; or
the patient is on multiple waiting lists at different hospitals thereby
inflating numbers (Wright Report, at pp. 7-8).
(d) The Impact of Waiting Times on Individual Patients
220
It is even more difficult to generalize about the potential impact of a
waiting list on a particular patient. The most comprehensive overview of the
literature on waiting lists available to the trial judge was the McDonald
Report, at p. 14. It presents a review of studies of patients’
experiences while awaiting surgery. That review prompted the authors to
conclude, among other things, that patients awaiting care for a range of
procedures — including knee and hip replacement, cardiac care and cataract care
— may experience “emotional strains such as increased levels of anxiety due
to a range of factors including lack of information and uncertainty
regarding the timeline for care” (p. 267 (emphasis added)) or the “normal”
anxiety or apprehension felt by anyone faced with a serious surgical
procedure. In other words, waiting lists may be serious in some cases, but in
how many cases and how serious?
(e) The Need to Ration Services
221
Waiting times are not only found in public systems. They are found in
all health care systems, be they single-tier private, single-tier public, or
the various forms of two-tier public/private (see, e.g., Kirby Report, vol. 1,
at p. 111). Waiting times in Canada are not exceptional (see Kirby Report,
vol. 4, at p. 41). The consequence of a quasi-unlimited demand for health
care coupled with limited resources, be they public or private, is to ration
services. As noted by the Arpin Report, Constats et recommandations sur les
pistes à explorer: Synthèse, at p. 37:
[translation] In any
health care system, be it public or private, there is an ongoing effort to
strike the proper balance. . . . For a public system like our own, waiting
lists, insofar as priority is given to urgent cases, do not in themselves
represent a flaw in the system. They are the inevitable result of a public
system that can consequently offer universal access to health services within
the limits of sustainable public spending. Thus, to a certain extent, they
play a necessary role. [Emphasis in original.]
222
The expert witnesses at trial agreed that waiting lists are inevitable (Expertise
déposée par Howard Bergman (1998) (“Bergman Report”), at p. 5; Marmor
Report, at p. 11). The only alternative is to have a substantially overbuilt
health care system with idle capacity (Wright Report, at p. 6). This is not a
financially feasible option, in the public or private sector.
(f) Who Should Be Allowed to Jump the Queue?
223
In a public system founded on the values of equity, solidarity and
collective responsibility, rationing occurs on the basis of clinical need
rather than wealth and social status (see, e.g., Turcotte Report, at pp. 4 and
10; Denis Report, at p. 11; Clair Report, at p. 129; Rapport de la Commission
d’enquête sur les services de santé et les services sociaux (1988) (“Rochon
Report”), at p. 651). As a result, there exists in Canada a phenomenon of
“static queues” whereby a group of persons may remain on a waiting list for a
considerable time if their situation is not pressing. Patients who are in
greater need of health care are prioritized and treated before those with a
lesser need (Kirby Report, vol. 5, at pp. 56-57; see also Turcotte Report, at
p. 12). In general, the evidence suggests that patients who need immediate
medical care receive it. There are of course exceptions, and these exceptions
are properly the focus of controversy, but in our view they can and should be
addressed on a case-by-case basis.
(g) Availability of Public Funding for Out-of-Province
Medical Care
224
Section 10 of the Health Insurance Act provides that in certain
circumstances Quebeckers will be reimbursed for the cost of “insured services”
rendered outside Quebec but in Canada (Regulation respecting the application
of the Health Insurance Act, R.R.Q. 1981, c. A‑29, s. 23.1), or
outside Canada altogether (s. 23.2). There is no doubt that the power of
reimbursement is exercised sparingly, and on occasion unlawfully; see for
example Stein v. Tribunal administratif du Québec, [1999] R.J.Q. 2416
(S.C.). One of the difficulties in assessing the effectiveness of this
individual remedy is that neither Dr. Chaoulli nor Mr. Zeliotis is before the
Court with an actual medical problem. (The trial judge, as stated, dismissed
Mr. Zeliotis’ personal health complaints as unsubstantiated.) The
reimbursement scheme for out-of-province services exists as a form of safety
valve for situations in which Quebec facilities are unable to respond. As Stein
shows, there are lapses of judgment, as there will be in the administration of
any government plan. The existence of the individual remedy, however,
introduces an important element of flexibility, if administered properly.
(h) The Evidence Relied on by the Chief
Justice and Major J. Did Not Satisfy the Trial Judge and Is Not, in Our View,
Persuasive
225
The Chief Justice and Major J. cite Dr. Lenczner as an authority at
para. 114 but the trial judge pointed out that Dr. Lenczner had not been
qualified as an expert witness and counsel for Mr. Zeliotis agreed (A.R., at
pp. 330-31). Dr. Lenczner’s comments were largely anecdotal and of little
general application. He described a patient who was a golfer, and thus lost
his access to his golf membership for that season. He also stated that a tear
can increase over time and get to the point of being irreparable, but no
studies or general evidence was adduced to show the incidence of such cases in
Quebec. Our colleagues comment at para. 112 that “a person with coronary
disease is [translation] ‘sitting
on a bomb’ and can die at any moment”. This is true, of course. He or she can
die at home, or in an ambulance on the way to a hospital. Again, our
colleagues write, “patients die while on waiting lists” (para. 112). This,
too, is true. But our colleagues are not advocating an overbuilt system with
enough idle capacity to eliminate waiting lists, and such generalized comments
provide no guidance for what in practical terms would constitute an appropriate
level of resources to meet their suggested standard of “public health care of a
reasonable standard within a reasonable time” (para. 105).
226
We have similar concerns about the use made by the appellants of various
reports in connection with other OECD countries. These “country” reports were
included in an Interim Kirby Report but not in its final version. The
Final Kirby Report’s recommendation was to stick with a single-tier system. We
think the Court is sufficiently burdened with conflicting evidence about our
own health system without attempting a detailed investigation of the merits of
trade-offs made in other countries, for their own purposes. A glance at the
evidence shows why.
227
Our colleagues the Chief Justice and Major J. state, at para. 142, that
in Sweden only a very small minority of the population actually utilize private
insurance. Yet, the Interim Kirby Report goes on to take note of more recent
trends:
The growing rate of the number of insured, or people on private
health care insurance, is some 80% or something like that now. It is growing
very fast due to the normal waiting lists and the problems within the system
today. [Emphasis in original.]
(Interim Kirby Report, vol. 3, at pp. 31-32)
228
With respect to the United Kingdom, the Interim Kirby Report states:
One of the major reasons given by people who take private insurance
is they want the peace of mind of being able to have elective operations for
themselves or their families more quickly or at more convenient times than if
they must depend on the National Health Service. That is seen, of course, as a
cause of unfairness, which is one of the reasons that the government is
committed to bringing down waiting times for National Health Service patients
as rapidly as it can. [Emphasis in original.]
(Interim Kirby Report, vol. 3, at p. 38)
In fact, in
the actual conclusion of vol. 3 of the Interim Kirby Report on Health Care
Systems in Other Countries, the report’s authors state (at p. 73):
Canadians may find some consolation in the fact
that Canada is not alone in confronting complex health care issues. Everywhere
in the industrialized world health care policy is thoroughly intertwined with
the political, social, and even cultural life of each country. As such, every
health care system is unique. Therefore, no single international model
constitutes a blueprint for solving the challenges confronted by the Canadian
health care system. However, experts told the Committee that careful
consideration must be given to the repercussions in Canada of introducing, on a
piecemeal basis, changes undertaken in other countries.
229
We are not to be taken as disputing the undoubted fact that there are
serious problems with the single-tier health plan in Canada. Our point is
simply that bits of evidence must be put in context. With respect, it is
particularly dangerous to venture selectively into aspects of foreign health
care systems with which we, as Canadians, have little familiarity. At the very
least such information should be filtered and analysed at trial through an
expert witness.
230
Taking the good with the bad, the Final Kirby Report recommended
continuation of a single-tier health system (as did the Romanow Report). The
authors of the Kirby Report were fully aware of the extracts from their interim
report relied upon by our colleagues the Chief Justice and Major J., yet they
specifically rejected two-tier health care:
Repeated public opinion polling data have shown that having to wait
months for diagnostic or hospital treatment is the greatest concern and
complaint that Canadians have about the health care system. The solution to
this problem is not, as some have suggested, to allow wealthy Canadians to pay
for services in a private health care institution. Such a solution would
violate the principle of equity of access. The solution is the care
guarantee as recommended in this report. [Emphasis added.]
(Final Kirby Report, vol. 6, at p. 321)
We thus conclude that our colleagues’ extracts of some of the tour
d’horizon data published in the Interim Kirby Report do not displace the
conclusion of the trial judge, let alone the conclusion of the Kirby Report
itself. Apart from everything else, it leaves out of consideration the
commitment in principle in this country to health care based on need,
not wealth or status, as set out in the Canada Health Act .
(2) Arbitrariness
231
Our colleagues the Chief Justice and Major J. take the view that a law
which arbitrarily violates life or security of the person is unconstitutional.
We agree that this is a principle of fundamental justice. We do not agree that
it applies to the facts of this case.
232
A deprivation of a right will be arbitrary and will thus infringe s. 7
if it bears no relation to, or is inconsistent with, the state interest that
lies behind the legislation: Rodriguez, at pp. 619-20; Malmo-Levine,
at para. 135. As Sopinka J. explained in Rodriguez, at pp. 594-95:
Where the deprivation of the right in question does
little or nothing to enhance the state’s interest (whatever it may be), it
seems to me that a breach of fundamental justice will be made out, as the
individual’s rights will have been deprived for no valid purpose.
. . . It follows that before one can determine that a statutory
provision is contrary to fundamental justice, the relationship between the
provision and the state interest must be considered. One cannot conclude
that a particular limit is arbitrary because (in the words of my colleague,
McLachlin J. at pp. 619‑20) “it bears no relation to, or is inconsistent
with, the objective that lies behind the legislation” without considering the
state interest and the societal concerns which it reflects. [Emphasis added.]
233
We agree with our colleagues the Chief Justice and Major J. that a law
is arbitrary if “it bears no relation to, or is inconsistent with, the
objective that lies behind [the legislation]” (para. 130). We do not agree
with the Chief Justice and Major J. that the prohibition against private
health insurance “bears no relation to, or is inconsistent with” the
preservation of access to a health system based on need rather than wealth in
accordance with the Canada Health Act . We also do not agree with our
colleagues’ expansion of the Morgentaler principle to invalidate a
prohibition simply because a court believes it to be “unnecessary” for the
government’s purpose. There must be more than that to sustain a valid
objection.
234
The accepted definition in Rodriguez states that a law is
arbitrary only where “it bears no relation to, or is inconsistent with, the
objective that lies behind the legislation”. To substitute the term
“unnecessary” for “inconsistent” is to substantively alter the meaning of the
term “arbitrary”. “Inconsistent” means that the law logically contradicts its
objectives, whereas “unnecessary” simply means that the objective could be met
by other means. It is quite apparent that the latter is a much broader term
that involves a policy choice. If a court were to declare unconstitutional
every law impacting “security of the person” that the court considers
unnecessary, there would be much greater scope for intervention under s. 7
than has previously been considered by this Court to be acceptable. (In Rodriguez
itself, for example, could the criminalization of assisted suicide simply have
been dismissed as “unnecessary”? As with health care, many jurisdictions have
treated euthanasia differently than does our Criminal Code .) The courts
might find themselves constantly second-guessing the validity of governments’
public policy objectives based on subjective views of the necessity of
particular means used to advance legitimate government action as opposed to
other means which critics might prefer.
235
Rejecting the findings in the courts below based on their own reading of
the evidence, our colleagues the Chief Justice and Major J. state (at para.
128):
We are of the opinion that the evidence before the trial judge supports
a finding that the impugned provisions are arbitrary and that the deprivation
of life and security of the person that flows from them cannot therefore be
said to accord with the principles of fundamental justice.
We note that
our colleagues refer to the evidence before the trial judge rather than
the view taken of that evidence by the trial judge. The trial judge
reached a contrary conclusion on the facts, and deference is due to her view of
that evidence; see Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC
33. In any event, with respect, we accept the contrary conclusions of the
trial judge and the Quebec Court of Appeal. We approach the issue of
arbitrariness in three steps:
(i) What is the “state interest” sought to
be protected?
(ii) What is the relationship between the
“state interest” thus identified and the prohibition against private health
insurance?
(iii) Have the appellants established that the
prohibition bears no relation to, or is inconsistent with, the state interest?
We will
address each question in turn.
(a) What Is the “State Interest” Sought To Be
Protected?
236
Quebec’s legislative objective is to provide high quality health care,
at a reasonable cost, for as many people as possible in a manner that is
consistent with principles of efficiency, equity and fiscal responsibility.
Quebec (along with the other provinces and territories) subscribes to the
policy objectives of the Canada Health Act , which include (i) the
equal provision of medical services to all residents, regardless of status,
wealth or personal insurability, and (ii) fiscal responsibility. An
overbuilt health system is seen as no more in the larger public interest than a
system that on occasion falls short. The legislative task is to strike a
balance among competing interests.
237
The appellants do not challenge the constitutional validity of the
objectives set out in the Canada Health Act . Thus our job as judges is
not to agree or disagree with these objectives but simply to determine whether
the means adopted by Quebec to implement these objectives are
arbitrary.
(b) What Is the Relationship Between the
“State Interest” Thus Identified and the Prohibition Against Private Health
Insurance?
238
The relationship lies both in principle and in practicality.
239
In principle, Quebec wants a health system where access is
governed by need rather than wealth or status. Quebec does not want people who
are uninsurable to be left behind. To accomplish this objective endorsed by
the Canada Health Act , Quebec seeks to discourage the growth of
private-sector delivery of “insured” services based on wealth and
insurability. We believe the prohibition is rationally connected to Quebec’s
objective and is not inconsistent with it.
240
In practical terms, Quebec bases the prohibition on the view that
private insurance, and a consequent major expansion of private health services,
would have a harmful effect on the public system.
241
The trial judge put her conclusion this way (at p. 827):
[translation]
The Health Insurance Act [“HEIA”] and the Hospital Insurance Act
[“HOIA”] are pieces of legislation whose purpose is to create and maintain a
public health care plan open to all residents of Quebec. These enactments are
intended to promote the overall health of all Quebeckers without discrimination
based on economic circumstances. In short, they constitute a government
action whose purpose is to promote the well-being of all the people of the
province.
Plainly, s. 15 HEIA and s. 11 HOIA erect economic
barriers to access to private health care. However, these measures are not
really intended to limit access to health care; rather, their purpose is to
prevent the establishment of a parallel private system. These provisions
are based on the fear that the establishment of a private health care system
would rob the public sector of a significant portion of the available health
care resources. The Quebec government enacted s. 15 HEIA and s. 11 HOIA to
guarantee that virtually all the existing health care resources in Quebec would
be available to all the people of Quebec. That is clear.
The purpose of the impugned provisions is
to guarantee equal and adequate access to health care for all Quebeckers.
The enactment of s. 15 HEIA and s. 11 HOIA was motivated by considerations
of equality and human dignity, and it is therefore clear that there is no
conflict with the general values expressed in the Canadian Charter or in the
Quebec Charter of human rights and freedoms. [Emphasis in original.]
We agree.
(c) Have the Appellants
Established That the Prohibition Bears No Relation to, or Is Inconsistent With,
the State Interest?
242
The trial judge considered all the evidence and concluded that the
expansion of private health care would undoubtedly have a negative impact on
the public health system (at p. 827):
[translation]
The evidence has shown that the right of access to a parallel private
health care system claimed by the applicants would have repercussions on the
rights of the population as a whole. We cannot bury our heads in the sand.
The effect of establishing a parallel private health care system would be to
threaten the integrity, proper functioning and viability of the public system.
Section 15 HEIA and s. 11 HOIA prevent this from happening and secure the
existence in Quebec of a public health care system of high quality.
As well, the Court finds that s. 15 HEIA and s. 11
HOIA are not overbroad. The only way to guarantee that all the health
care resources will benefit all Quebeckers without discrimination is to prevent
the establishment of a parallel private health care system. That is in fact
the effect of the impugned provisions in the case at bar. [Emphasis in
original.]
These findings
were explicitly adopted by Forget J.A. of the Court of Appeal and implicitly
endorsed by the other judges of that court. The trial judge relied on the
reports available to her in rejecting the appellants’ constitutional challenge,
and none of the material that has since been added (such as the Romanow Report)
changes or modifies the correctness of her conclusion, in our view. We
therefore agree with the trial judge and the Quebec Court of Appeal that the appellants
failed to make out a case of “arbitrariness” on the evidence. Indeed the
evidence proves the contrary. We now propose to review briefly some of the
evidence supporting the findings of the trial judge.
(i) A Parallel Private Regime Will Have a
Negative Impact on Waiting Times in the Public System
243
The appellants’ argument in favour of a parallel private regime is one
of a “win/win” prediction; i.e., that waiting times in the public regime will
be reduced if those who can afford private insurance leave the public waiting
lists in order to receive private health care. However, the Kirby Report
states flatly that “allowing a private parallel system will . . .
make the public waiting lines worse” (vol. 4, at p. 42 (emphasis added)). This
conclusion is supported by the Romanow Report (p. 139: “[P]rivate
facilities may improve waiting times for the select few . . . but .
. . worse[n them for the many]”), the Turcotte Report (pp. 13-14), and the
expert witnesses at trial (Marmor Report; Wright Report; and Bergman Report).
244
A study of a Manitoba pilot project found that in the case of cataract
operations, public health patients who went to surgeons working in both private
and public clinics waited far longer than patients who went to surgeons working
only in the public system. The same private sector patient preference is
evident from other studies and experience: See Wright Report, at p. 17; Bergman
Report, at p. 8; J. Hurley et al., Parallel Private Health Insurance in
Australia: A Cautionary Tale and Lessons for Canada (2002); C. DeCoster, L.
MacWilliam and R. Walld, Waiting Times for Surgery: 1997/98 and 1998/99
Update (2000); W. Armstrong, The Consumer Experience with Cataract
Surgery and Private Clinics in Alberta: Canada’s Canary in the Mine Shaft (2000);
Canadian Health Services Research Foundation, Mythbusters — Myth: A parallel
private system would reduce waiting times in the public system (2001);
Québec, Rapport du Conseil de la santé et du bien-être social, Le
financement privé des services médicaux et hospitaliers (2003), at
p. 30.
245
The Australian experience, as reported by Dr. Wright, is that at present
delays in the Australian public system are caused largely by surgeons’
reluctance to work in public hospitals and by their encouragement of patients
to use the private system on a preferential basis (Wright Report, at p. 15;
Hurley, at p. 17).
246
The same is true for the United Kingdom, which has a two-tier health
system where physicians who want to practise privately are required to practise
a minimum number of hours in the public system. There, an Audit Commission of
the National Health Service reported that surgeons do on average a third to
half again as many operations for private fees as they do in the public system,
and that they spend less time than they are contracted for working in the
public system in order to conduct private practice (Wright Report, at p. 16;
see also Le financement privé des services médicaux et hospitaliers, at
p. 30).
247
Both the Romanow Report and the Kirby Report examine the current
shortage of health care professionals in Canada (Kirby Report, vol. 2, at p.
76, and vol. 4, at pp. 7 and 107; Romanow Report, at p. 92), and in rural
parts of Canada in particular (Kirby Report, vol. 2, at p. 137; Romanow Report,
at p. 166). Dr. Wright testified that the experience in all jurisdictions
with two-tier health care systems (e.g., the United Kingdom, Australia, New
Zealand and Israel) demonstrates a diversion of energy and commitment by
physicians and surgeons from the public system to the more lucrative private
option (Wright Report, at pp. 15 and 22). This evidence is supported by the
Romanow Report (at p. 92), the Kirby Report (vol. 1, at p. 105) and a 2003
Quebec report (Le financement privé des services médicaux et hospitaliers,
at p. 6). See also Marmor Report (at p. 5) and Denis Report (at p. 14).
Furthermore, the experts testified that there are no firm data whatsoever
showing that a parallel private system would enhance potential for recruiting
highly trained specialists (see Wright Report, at p. 19).
(ii) The Impact of a Parallel Private Regime
on Government Support for a Public System
248
The experience in other OECD countries shows that an increase in private
funding typically leads to a decrease in government funding (Le financement
privé des services médicaux et hospitaliers, at p. 7; Marmor Report, at p.
6). At trial, Dr. Bergman explained that a service designed purely for
members of society with less socio-economic power would probably lead to a
decline in quality of services, a loss of political support and a decline in
the quality of management (Bergman Report, at pp. 6-7; see also Marmor
Report, at pp. 6 and 8; Denis Report, at p. 5).
(iii) Private Insurers May “Skim the Cream”
and Leave the Difficult and Costly Care to the Public Sector
249
The evidence suggests that parallel private insurers prefer to siphon
off high income patients while shying away from patient populations that
constitute a higher financial risk, a phenomenon known as “cream skimming”
(Wright Report, at p. 17; Kirby Report, vol. 6, at p. 301). The public system
would therefore carry a disproportionate burden of patients who are considered
“bad risks” by the private market by reason of age, socio-economic conditions,
or geographic location.
250
Similarly, private insurers may choose to avoid “high-risk” surgery.
The public system is likely to wind up carrying the more complex high acuity
end of the health care spectrum and, as a consequence, increase rather than
reduce demand (proportionately) in the public system for certain services
(Wright Report, at p. 18).
(iv) The U.S. Two-Tier System of Health
Coverage
251
Reference has already been made to the U.S. health care system, which is
the most expensive in the world, even though by some measures Americans are
less healthy than Canadians (Kirby Report, vol. 1, at p. 101, and vol. 4, at p.
28; Romanow Report, at p. 14). The existence of a private system has not
eliminated waiting times. The availability, extent and timeliness of health
care is rationed by private insurers, who may determine according to cost, not
need, what is “medically” necessary health care and where and when it is to
occur (Kirby Report, vol. 3, at p. 48; Denis Report, at pp. 12 and 16).
Whether or not the private system in the U.S. is better managed is a matter of
debate amongst policy analysts. The point here is simply that the appellants’
faith in the curative power of private insurance is not borne out by the
evidence put before the Court.
(v) Moreover the Government’s Interest in
Fiscal Responsibility and Efficiency May Best Be Served by a Single-Tier System
252
The expert witnesses at trial (other than the appellants’ witness Dr.
Coffey), the Romanow Report and the Kirby Report all agree that the most
cost-effective method of providing health care is through public single-tier
financing. Dr. Wright testified at trial that the “public administration
criterion [of the Canada Health Act ] renders the Canadian Health Care
System one of the most efficient in terms of the ratio of productivity to
administrative costs in the world” (Wright Report, at p. 2; see also Marmor
Report, at p. 9; Denis Report, at p. 8; Kirby Report, vol. 3, at p. 67,
and vol. 4, at p. 23; Romanow Report, at p. 43; The World Health Report
1999: Making a Difference (1999); Report of the National Advisory Council
on Aging, The NACA Position on the Privatization of Health Care (1997),
at p. 14).
253
In particular, much is saved in a single-tier public system as a result
of lower administrative costs and advertising expenses, the absence of overhead
and the fact that the risk is spread over the entire population (see Romanow
Report, at pp. 60ff; Kirby Report, vol. 4, at p. 31).
254
Not only is there “no evidence [that the] adoption [of a private health
care system] would produce a more efficient, affordable or effective system”
(Romanow Report, at p. xxiv), there is also no clear evidence that private
surgical services are more efficient or less costly (Wright Report, at p. 14;
Romanow Report, at p. 8; Le financement privé des services médicaux et
hospitaliers, at pp. 23 and 33).
255
With respect to the impact on the financial resources of the public
system, the experts testified that the introduction of a parallel private
health regime would likely increase the overall cost of health care to
Canadians (Marmor Report, at pp. 8 and 10; Bergman Report, at p. 7;
Turcotte Report, at p. 11; see also Le financement privé des services médicaux
et hospitaliers, at p. 24).
(vi) Conclusion on “Arbitrariness”
256
For all these reasons, we agree with the conclusion of the trial judge
and the Quebec Court of Appeal that in light of the legislative objectives of
the Canada Health Act it is not “arbitrary” for Quebec to discourage the
growth of private sector health care. Prohibition of private health insurance
is directly related to Quebec’s interest in promoting a need-based system and
in ensuring its viability and efficiency. Prohibition of private insurance is
not “inconsistent” with the state interest; still less is it “unrelated” to
it.
257
In short, it cannot be said that the prohibition against private health
insurance “bears no relation to, or is inconsistent with” preservation of a
health system predominantly based on need rather than wealth or status, as
required by the Rodriguez test, at pp. 594-95.
258
As to our colleagues’ dismissal of the factual basis for Quebec’s
legislative choice, the public has invested very large sums of money in a
series of authoritative reports to analyse health care in this country and in
other countries. The reports uniformly recommend the retention of single-tier
medicine. People are free to challenge (as do the appellants) the government’s
reliance on those reports but such reliance cannot be dismissed as
“arbitrary”. People are also free to dispute Quebec’s strategy, but in our
view it cannot be said that a single-tier health system, and the prohibition on
private health insurance designed to protect it, is a legislative choice that
has been adopted “arbitrarily” by the Quebec National Assembly as that term has
been understood to date in the Canadian Charter jurisprudence.
(3) The Morgentaler Case Is Not
Applicable
259
Our colleagues the Chief Justice and Major J. rely substantially on
comments made by Beetz J. (concurred in by Estey J.) in Morgentaler when
he invoked a principle of “manifest unfairness”. Nowhere in his analysis
pertaining to the principles of fundamental justice did Beetz J. use the words
“arbitrary” or “arbitrariness”. Moreover the context for his remarks was the
prospect of a criminal prosecution of a pregnant woman. Section 251(2) of the Criminal
Code stated that a pregnant woman who used “any means or permit[ted] any
means to be used” for the purpose of procuring her own miscarriage was guilty
of an indictable offence punishable with imprisonment for two years.
Parliament provided a defence if the continued pregnancy would or would be
likely to, in the opinion of a therapeutic abortion committee, “endanger her
life or health” (s. 251(4) (c)). The Court struck down the criminal
prohibition because the prohibition was designed to operate only with the statutory
defence, and the Court found that in practice these committees operated
unevenly and that the statutory scheme “contain[ed] so many potential barriers
to its own operation that the defence it create[d would] in many circumstances
be practically unavailable to women who would prima facie qualify
. . . .” (pp. 72-73, per Dickson C.J.). For Beetz J.,
too, a key issue was that a significant proportion of Canada’s population is
not served by hospitals in which therapeutic abortions could lawfully be performed
(pp. 94-95).
260
At page 81, Beetz J. went on to say that “s. 7 of the Charter
must include a right of access to medical treatment for a condition
representing a danger to life or health without fear of criminal sanction”
(emphasis added). The context of this appeal is entirely different. This
case, on the contrary, invites the application of the dictum of Dickson
C.J. in Morgentaler “that the courts should avoid ‘adjudication of the
merits of public policy’” (p. 53).
261
There were two aspects of s. 251 which caused Beetz J. particular
concern. Firstly, s. 251 required that abortions be performed in an
“eligible hospital”, and not in clinics like those operated by Dr. Morgentaler
(p. 114). This limitation, he found, had no logical connection with the
state’s avowed interest “in the protection of the foetus” (p. 115),
i.e., the termination of the foetus would be the same wherever the
abortion was performed. Secondly, Beetz J. objected to “the requirement that
the committee come from the accredited or approved hospital in which the
abortion is to be performed” (p. 119). He said:
It is difficult to see a connection between this requirement and any of
the practical purposes for which s. 251(4) was enacted. It cannot be said
to have been adopted in order to promote the safety of therapeutic abortions or
the safety of the pregnant woman. Nor is the rule designed to preserve the
state interest in the foetus. [p. 119]
262
There is, we think, a world of difference between the sort of statutory
analysis conducted by Beetz J. in Morgentaler and the re-weighing of
expert evidence engaged in by our colleagues the Chief Justice and Major J. in
this case. Having established that the s. 251 requirements had nothing to
do with the avowed state interest in the protection of the foetus, all that
remained in Morgentaler was to show that these requirements were
inconsistent with the competing state interest in preserving the life and health
of the mother. We see no parallel between the analysis of Beetz J. in Morgentaler
and what is asked of the Court by the appellants in this case.
263
On the contrary, given its goal of providing necessary medical services
to all Quebec residents based on need, Quebec’s determination to protect the
equity, viability and efficiency of the public health care system is rational.
The chosen means are designed to further the state interest and not (as in Morgentaler)
to contradict it.
264
The safety valve (however imperfectly administered) of allowing Quebec
residents to obtain essential health care outside the province when they are
unable to receive the care in question at home in a timely way is of
importance. If, as the appellants claim, this safety valve is opened too
sparingly, the courts are available to supervise enforcement of the rights of
those patients who are directly affected by the decision on a case-by-case
basis. Judicial intervention at this level on a case-by-case basis is preferable
to acceptance of the appellants’ global challenge to the entire single-tier
health plan. It is important to emphasize that rejection of the appellants’
global challenge to Quebec’s health plan would not foreclose individual
patients from seeking individual relief tailored to their individual
circumstances.
(4) Conclusion Under Section 7 of the Canadian
Charter
265
For the foregoing reasons, even accepting (as we do) the trial judge’s
conclusion that the claimants have established a deprivation of the life and
security of some Quebec residents occasioned in some
circumstances by waiting list delays, the deprivation would not violate any legal
principle of fundamental justice within the meaning of s. 7 of the Canadian
Charter . On that point, too, we share the opinion of the trial judge and
the Quebec Court of Appeal, as previously mentioned.
D. The Appellants’ Challenge Under the
Quebec Charter
266
The Quebec Charter is a major quasi-constitutional instrument.
Our colleague Deschamps J. finds a violation of s. 1, which provides:
1. Every human being has a right to life, and to personal
security, inviolability and freedom.
He also possesses juridical personality.
267
Section 1 of the Quebec Charter must be read with s. 9.1:
9.1 In exercising his fundamental freedoms and rights, a
person shall maintain a proper regard for democratic values, public order and
the general well-being of the citizens of Québec.
In this respect, the scope of the freedoms and
rights, and limits to their exercise, may be fixed by law.
268
The factual basis of the opinion of our colleague Deschamps J. seems to
rest largely on her view of the problem of waiting lists in Quebec, a matter we
have already discussed, commencing at para. 210.
269
As to the legal principles applicable under the Quebec
Charter, our Court in Irwin Toy Ltd. v. Quebec (Attorney General),
[1989] 1 S.C.R. 927, noted a functional analogy between s. 1 of the Canadian
Charter and s. 9.1 of the Quebec Charter. However, s. 9.1 has
the added feature of placing on the claimant the obligation to exercise Quebec
Charter rights with “proper” regard to “democratic values, public order and
the general well-being of the citizens of Québec”. These limitations have
particular relevance to the public health system context of the present claim.
270
Within the legislative jurisdiction of the National Assembly of Quebec,
absent an express provision to the contrary, other statutes may not derogate
from its ss. 1-38 (s. 52). It was adopted and came into force several
years before the Canadian Charter . It applies not only to state action
but also to many forms of private relationships. It often covers the same
grounds as the Canadian Charter . Nevertheless, it remains distinct in
its drafting and methodology (A. Morel, “La coexistence des Chartes canadienne
et québécoise: problèmes d’interaction” (1986), 17 R.D.U.S. 49,
at pp. 80-81; Godbout v. Longueuil (Ville de), [1995] R.J.Q. 2561
(C.A.), at p. 2568, per Baudouin J.A.).
271
Section 1 of the Quebec Charter, in essence, covers about the
same ground as s. 7 of the Canadian Charter , but it does not
mention the principles of fundamental justice. As stated earlier, it reads:
1. Every human being has a right to life, and to personal
security, inviolability and freedom.
He also possesses juridical personality.
272
Under s. 1 of the Quebec Charter, as at the first stage of a s. 7
analysis, the claimant bears the burden of establishing, on a balance of
probabilities, that the impugned law infringes his or her protected rights and
interests. If such a claim is made out, the focus of the analysis may shift to
s. 9.1 of the Quebec Charter in order to determine whether the claimed
exercise of the right is made with due regard for “democratic values, public
order and the general well-being of the citizens of Québec”.
273
In our view, on the evidence, the exercise by the appellants of their
claimed Quebec Charter rights to defeat the prohibition against private
insurance would not have “proper regard for democratic values” or “public
order”, as the future of a publicly supported and financed single‑tier
health plan should be in the hands of elected representatives. Nor would it
have proper regard for the “general well‑being of the citizens of
Québec”, who are the designated beneficiaries of the health plan, and in
particular for the well‑being of the less advantaged Quebeckers.
274
Those who seek private health insurance are those who can afford it and
can qualify for it. They will be the more advantaged members of society. They
are differentiated from the general population, not by their health problems,
which are found in every group in society, but by their income status. We
share the view of Dickson C.J. that the Canadian Charter should not
become an instrument to be used by the wealthy to “roll back” the benefits of a
legislative scheme that helps the poorer members of society. He observed in
Edwards Books, at p. 779:
In interpreting and applying the Charter I believe that the
courts must be cautious to ensure that it does not simply become an instrument
of better situated individuals to roll back legislation which has as its object
the improvement of the condition of less advantaged persons.
The concern,
of course, is that once the health needs of the wealthier members of society
are looked after in the “upper tier”, they will have less incentive to continue
to pressure the government for improvements to the public system as a whole.
275
The comments of Dickson C.J. are even more relevant to the Quebec
Charter given its broad scope and its potential application to a wide range
of private relationships.
276
This is not a case, in our view, where the onus of proof determines the
outcome. The evidence amply supports the validity of the prohibition of
private insurance under the Quebec Charter. The objectives are
compelling. A rational connection is demonstrated. The decision boils down to
an application of the minimal impairment test. In respect of questions of
social and economic policy, this test leaves a substantial margin of
appreciation to the Quebec legislature. Designing, financing and operating the
public health system of a modern democratic society like Quebec remains a
challenging task. It calls for difficult choices. In the end, we find that
the choice made a generation ago by the National Assembly of Quebec remains
within the range of options that are justifiable under s. 9.1. Shifting the
design of the health system to the courts is not a wise choice.
277
In this respect, we should bear in mind that the legislative provisions
challenged under s. 1 concern all citizens of Quebec. They address concerns
shared by all and rights belonging to everyone. The legislative solution
affects not only individuals but also the society to which all those
individuals belong. It is a problem for which the legislature attempted to
find a solution that would be acceptable to everyone in the spirit of the
preamble of the Quebec Charter:
WHEREAS every human being possesses intrinsic rights and freedoms
designed to ensure his protection and development;
Whereas all human beings are equal in worth and
dignity, and are entitled to equal protection of the law;
Whereas respect for the dignity of the human being
and recognition of his rights and freedoms constitute the foundation of justice
and peace;
Whereas the rights and freedoms of the human person
are inseparable from the rights and freedoms of others and from the common
well-being;
. . .
278
The evidence reviewed above establishes that the impugned provisions
were part of a system which is mindful and protective of the interests of all,
not only of some.
279
We would dismiss the appeal.
APPENDIX
Health
Insurance Act, R.S.Q., c. A-29
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.
.
. .
Hospital
Insurance Act, R.S.Q., c. A-28
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.
(2) This section does not apply for such time
after a person arrives in Québec as a resident as he is not an insured person.
Appeal allowed with costs, Binnie, LeBel
and Fish JJ. dissenting.
Solicitors for the appellant George Zeliotis:
Trudel & Johnston, Montreal.
Solicitors for the respondent the Attorney General
of Quebec: Bernard, Roy & Associés, Montreal.
Solicitors for the respondent the Attorney General
of Canada: D’Auray, Aubry, LeBlanc & Associés, Ottawa.
Solicitor for the intervener the Attorney General
of Ontario: Attorney General of Ontario, Toronto.
Solicitor for the intervener the Attorney General
of New Brunswick: Attorney General of New Brunswick, Fredericton.
Solicitor for the intervener the Attorney General
for Saskatchewan: Attorney General for Saskatchewan, Regina.
Solicitors for the interveners Senator Michael
Kirby, Senator Marjory Lebreton, Senator Catherine Callbeck, Senator Joan Cook,
Senator Jane Cordy, Senator Joyce Fairbairn, Senator Wilbert Keon, Senator
Lucie Pépin, Senator Brenda Robertson and Senator Douglas Roche: Lerners,
Toronto.
Solicitors for the interveners the Canadian Medical
Association and the Canadian Orthopaedic Association: Borden Ladner Gervais,
Ottawa.
Solicitors for the intervener the Canadian Labour
Congress: Sack Goldblatt Mitchell, Toronto.
Solicitor for the interveners the Charter Committee
on Poverty Issues and the Canadian Health Coalition: University of Ottawa,
Ottawa.
Solicitors for the interveners Cambie Surgeries
Corp., False Creek Surgical Centre Inc., Delbrook Surgical Centre Inc.,
Okanagan Plastic Surgery Centre Inc., Specialty MRI Clinics Inc., Fraser Valley
MRI Ltd., Image One MRI Clinic Inc., McCallum Surgical Centre Ltd., 4111044
Canada Inc., South Fraser Surgical Centre Inc., Victoria Surgery Ltd., Kamloops
Surgery Centre Ltd., Valley Cosmetic Surgery Associates Inc., Surgical Centres
Inc., the British Columbia Orthopaedic Association and the British Columbia
Anesthesiologists Society: Blake, Cassels & Graydon, Vancouver.
On August 4, 2005, the Court stayed the judgment for a period of 12
months from the date of the judgment.