Chaoulli v Quebec and the Future of Canadian Healthcare
Editor’s Note: This post is excerpted from the C.D. Howe Institute’s 2006 Benefactor’s Lecture.
The Supreme Court of Canada’s 4-3 decision in Chaoulli v Quebec,  1 SCR 791 [Chaoulli], striking down the impugned provisions in Quebec law (see Health Insurance Act, RSQ, c A-29, s. 15 and Hospital Insurance Act, RSQ, c A-28, s. 11) was truly a legal and political bombshell that caught governments and the health policy community completely flat-footed.
The widespread condemnation by legal and health policy commentators of the Court’s decision was both striking and remarkable. Critics saw it as sounding a potential death knell for medicare, Canada’s most cherished social program, and as mandating that the Quebec healthcare system “must be ‘two-tier’ to be constitutional.” There were calls for the use of the “notwithstanding” clause to override the Court, and even speculation as to whether a full nine-member panel of the Court could be prevailed upon to reverse the decision.
Largely overlooked in this academic debate was whether anyone had an answer to the fundamental question of principle that had moved the Court to intervene in the first place. This question was simply whether it was legally and morally justifiable for the state, on the one hand, to require individuals to access healthcare services only through a universal, single-payer system and then, on the other, to deny them access to needed service when they were sick or dying. In such circumstances, which the Court found to prevail in Canada today, was it legitimate for the state to prohibit individuals from using their own resources to access the care they needed?
Critics of the decision largely ignored this fundamental question, preferring to focus attention on subsidiary questions, such as whether the Supreme Court had a proper appreciation of the complex operation of health insurance in other OECD countries, or whether the courts had any business interfering in a complex policy area such as medicare.
In my view, a careful reading of the two majority judgments of the Supreme Court indicates that the Court is not mandating a “two-tier” system of healthcare. Nor, indeed, does the Court specify the precise manner in which the delivery of healthcare services ought to be organized or paid for.
What Chaoulli does require is that if Canadians are to be required to access healthcare through a single-payer, universal system, then services must be provided in a reasonably timely manner. The failure to provide such service will mean that legal limitations on the right of individuals to access care outside of the single-payer, universal system will be unenforceable. But whether Canada is to maintain a single-payer, universal healthcare system, or permit the development of a parallel private-payer system alongside the publicly funded system, remains a choice for governments and legislatures even post-Chaoulli.
The dissenting reasons charge that the majority judgments had proceeded on the basis of wholly political rather than legal argument. But, significantly, Justices Binnie and LeBel did not provide a response to the principled argument that if governments wish to establish a monopoly over the provision of certain medically necessary services, it thereby comes under an obligation to provide care in a timely manner. It is certainly true, as the dissenting justices suggest, that the determination of reasonable waiting times requires a difficult exercise of judgment. But the fact that such a determination is difficult does not mean that governments and healthcare administrators should thereby be relieved of any obligation to provide care in a timely manner.
The Court has indicated that the “ultimate standard” for justifying limits on rights must be the values of a free and democratic society, which values include respect for the “inherent dignity of the human person” (R v Oakes,  1 SCR 103, para 64). It is for this reason that any healthcare system which deliberately and systematically imposes pain or even death on innocent individuals in the name of improving healthcare provided to others cannot be justified either morally or legally, since it fails to treat all individuals as equally deserving of concern and respect.
Nor could such a system be regarded as being in accordance with the “principles of fundamental justice” enshrined in section 7 of the Charter, since any legal regime which treated one person as a mere instrument for the satisfaction of the needs of another must be regarded as odious and fundamentally unjust. It is for this reason that the Supreme Court’s conclusion in Chaoulli was correct, both legally and morally.
Chaoulli does not mandate a particular form of healthcare delivery; post-Chaoulli it remains perfectly open to governments and legislatures to discourage the emergence of a parallel private healthcare delivery system. But governments cannot do so in a way that ignores the interests of patients and users of the system. If governments wish to prohibit individuals from using their own resources to access healthcare services, they must meet legally enforceable minimum standards with respect to the timely delivery of care in the public system.
For too long, meaningful debate over reform to the Canada Health Act, RSC 1985, c C-6, and its associated regimes in the provinces has been regarded as off limits and even politically incorrect. Yet, as the Romanow Commission observes, no statute or policy should be immune from review and rethinking. The fact that we will now be required to seriously debate the foundations of the public healthcare system on the basis of evidence and outcomes, rather than ideology and rhetoric, cannot help but improve the quality as well as the equity of the healthcare provided to all Canadians.