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  • Past President Canadian Medical Association
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Is There A Constitutional Right To Heath Care?

Oct 23, 2005

Peter W. Hogg

Scope of paper


The title of this paper is “Is there a constitutional right to health care?”. The short answer to the question is no, there is no constitutional right to health care. But the long answer, which this paper addresses, is that the Constitution of Canada penetrates deeply into the structure of health care in Canada. It explains an awkward division of responsibility between the federal and provincial government.  It imposes the standards of the Charter of Rights on the delivery of public health care services. And, according to the latest news from the Supreme Court of Canada, delivered in Chaoulli v. Quebec (2005),1 the Constitution may require governments to actually carry out the promise of accessibility to public health care that is explicitly made in the Canada Health Act2 (and routinely reaffirmed by all political parties during every federal and provincial election campaign). Naturally, this requirement is generally regarded as incredibly radical.3


Jurisdiction over health care


Health is an amorphous topic, which in its entirety encompasses matters within the jurisdiction of the federal Parliament as well as the provinces. The control of emergencies, the regulation of food and drugs, the environment, and occupational health and safety, are among the health-related issues over which Parliament and the provincial Legislatures share powers. But the delivery of health care services to individuals in each province is exclusively a provincial responsibility. It comes within provincial jurisdiction under two heads of power in the Constitution Act, 1867, namely, s. 92(7), which confers jurisdiction over hospitals, and s. 92(13) (property and civil rights), which confers jurisdiction over the health care professions and health insurance.4


In exercise of its powers over the delivery of health care, each provincial Legislature has enacted a health care insurance plan, which governs the delivery of hospital and physician services and some other medical services. Each provincial plan establishes a public insurance system for the health care services that it specifies (they are described as “insured services”), and all residents of the province are entitled to receive those services free of charge. Hospitals, physicians, and other providers of the publicly insured services are paid directly by the provincial government. They are not permitted to bill patients directly, and extra-billing and user fees are prohibited, meaning that health care providers cannot charge patients fees over and above the fees provided by the government.


There is more uniformity to these provincial health care plans than might be expected. Indeed, despite the terms of the Constitution, Canadians usually speak of Medicare as a national program.  This is because the government of Canada contributes to the cost of each province’s health care insurance plan, and imposes national standards on the provinces as a condition of accepting the federal contribution. The federal conditions are enacted in the Canada Health Act,5 which stipulates that, in order for a province’s health care insurance plan to qualify for “a full cash contribution” by Canada to the province, the province’s plan must satisfy five criteria. The criteria are: (1) public administration; (2) comprehensiveness; (3) universality; (4) portability; and (5) accessibility. The Canada Health Act does not directly impose these rules on the delivery of health care in the provinces; that would be an unconstitutional intrusion into provincial legislative power over the delivery of health care. The Act simply stipulates the terms on which federal funding can be granted to each province. Because the Act only applies to federal spending, and does not regulate the delivery of health care in each province, it is a valid exercise of the Parliament of Canada’s spending power.6


Medicare as a national program began in 1968. It was originally a “shared-cost program”, with the federal and provincial governments each bearing 50 per cent of the cost of each provincial health care insurance plan. However, in order to limit the growth of federal expenditures and provide more incentive to provinces to control costs generally, Parliament in 1977 modified the formula for the federal contributions so that they are now based on the growth in the gross national product (GNP) rather than on the actual growth in provincial expenditures for health care.7 This has caused a steep decline in the percentage of the federal contribution, because the cost of each provincial health care plan has increased more rapidly than the growth in GNP. Nevertheless, the federal contribution is still sufficiently important to the provinces that they all choose to accept the federal funding--and the Canada Health Act conditions that come with the funding. If a province chose to forego the federal funding, it would no longer be bound by the Canada Health Act, and would be legally free of the five conditions. As a political matter, however, the Canada Health Act enjoys strong popular support, so that, even for a province that could afford to finance public health care on its own (and probably only Alberta is in that happy situation), radical departures from the Act are not politically attractive.


Comprehensiveness of Medicare: Auton


In order to be “comprehensive”, the Canada Health Act stipulates that a provincial health care insurance plan must cover all “insured health services”, which means all “medically necessary” hospital services, all “medically required” physician services and all “medically or dentally required” surgical-dental procedures performed in a hospital. Curiously, the Act does not define the crucial phrases “medically necessary” or “medically required”, and nor do the various provincial statutes. In practice, each province determines which services are medically required, and only those services become the “insured services” that are covered by the province’s plan. The Canada Health Act does not require that prescription drugs be covered, or non-surgical dental services, and the provincial plans do not cover these costs (although in some provinces there is a drug plan for persons on social assistance and persons over 65). These are serious gaps in public coverage, and most Canadians take out private health insurance (often through their workplace) to cover prescription drugs and dental services. Nor does the Canada Health Act require that the services of non-physicians, such as optometrists, audiologists, pharmacists, physiotherapists, chiropractors, psychologists, therapists, home-care nurses and (as explained) dentists, be covered. The provincial health care plans differ in the degree that they do cover them, but they are mostly not covered.

Private insurance can, and often does, cover these “unlisted” services too.


While every provincial health care insurance plan is “comprehensive” according to the vague and limited terms of the Canada Health Act, the omission of prescription drugs, dental services and many other non-physician services makes the plans far from comprehensive in any ordinary meaning of the term. Indeed, in 2003, fully 29 per cent of health care spending in Canada was private, and this number did not include the spending of Canadians who travel outside the country for diagnosis, treatment or surgery.8


A constitutional challenge has been brought to the lack of comprehensiveness of the provincial health care insurance plan of British Columbia. In Auton v. British Columbia (2004),9 autistic children and their parents brought proceedings to challenge the province’s failure to fund “applied behavioural therapy”, which was a therapy that, according to the evidence at trial, was the most effective treatment for autism. The claimants argued that the failure to fund the autism therapy discriminated against sufferers of autism, and was unconstitutional by virtue of the equality guarantee of s. 15 of the Charter. The province’s statutory health care insurance plan provided full funding for all medically required services provided by physicians. (This is required by the Canada Health Act, of course.) Some (but by no means all) medically required services that were provided by persons other than physicians were also funded, but not the autism therapy.  Both the trial judge and the Court of Appeal held that the province was in breach of s. 15, because it funded some medically required therapies, but did not fund the autism therapy. The Supreme Court of Canada reversed. McLachlin C.J., writing for the Court, held that the error in the lower courts was in the selection of the comparator group. It was wrong to compare the autism claimants with the recipients of fully funded therapies, because this ignored the fact that the autism therapy had only recently become recognized as medically required. Funding of new therapies “may be legitimately denied or delayed because of uncertainty about a program and administrative difficulties related to its recognition and implementation”.10  Because the claimants had adduced no evidence that the province was funding “other comparable, novel therapies”, they could not show disadvantage or unequal treatment.11


No doubt, cash-strapped provinces breathed a sigh of relief when British Columbia won the Auton case. But the opinion is not entirely reassuring to those provinces who wish to preserve discretion as to whether or how much they fund non- physician services (which, it will be recalled, are not required to be covered by the Canada Health Act, even if they are medically required). The straightforward reading of the opinion12 is that, if the autism therapy had been an established treatment, instead of being “novel”, then s. 15 of the Charter would have been applicable, and the claimants would have been constitutionally entitled to full public funding from the province.13 Since no province provides full public funding for dentistry and many other non- physician services, we may expect further litigation to clarify the extent of the constitutional obligation to provide funding.14 From the point of view of the claimants, of course, it must be very hard to understand why Medicare does not extend to a medically required therapy such as that indicated for autism, which, because of its high cost, is precisely the kind of treatment that should be publicly funded.15


Universality of Medicare

The Canada Health Act requires that insured services be “universal”. Section10 stipulates that, in order to be “universal”, a provincial health care insurance plan must cover all residents of the province. The universality of the coverage is a matter of pride to Canadians, who tend to make comparisons with their next-door neighbour, the United States, which lacks a universal system of public health insurance. What is not widely understood in Canada is that the United States is the only developed country in the world that lacks a universal public system.16 Canada is not unusual in that respect at all.


What is unusual about Canada is that it lacks a parallel private health care system existing alongside the public system for the same medical services as are covered by the public system. Canadian politicians of all parties at least profess to look askance at “two tier” medicine, and may well be unaware that other developed countries with universal public systems all permit private health care to exist alongside the public system.17 The Canada Health Act, while requiring that each province’s public health care insurance plan be universal, does not prohibit a parallel system of privately funded health care.  Nor does any provincial health care insurance plan directly prohibit a physician (or a private hospital) from opting out of the public plan and charging patients directly. However, the provincial health care insurance plans include a variety of deterrents that have the practical effect of imposing just such a prohibition.18 For example, nine of the ten provinces require that, in respect of “insured services”, opting-out must be complete: physicians cannot mix their practices between private (direct-billed) patients and public (government-billed) patients. Three provinces prohibit opted-out physicians from charging more than they would get under the public plan. Perhaps most important of all (and the subject of the Chaoulli case, to be discussed) is that six provinces prohibit their residents from purchasing private insurance for medical services that are covered by the public plan (“insured services”)—even though most Canadians carry private health insurance (for prescription drugs, dentistry and some other medical services that are not covered by the public plan).


The cumulative effect of all the provincial regulations is that no parallel private health care system has been able to develop anywhere in Canada. With respect to those services covered by the public plan (“insured services”), there is a government monopoly.19


Accessibility of Medicare: Chaoulli


The Canada Health Act requires that insured services be “accessible”. Section 12 stipulates that, to satisfy this requirement, each province’s health care insurance plan must provide for insured services to be supplied free of charge, and there must be no extra-billing or user fees imposed directly on the patients. This is specific and clear, but

s. 12 also includes the more general requirement that the plan must provide for “reasonable access” to the services. “Reasonable access” is not defined; and it is not defined in any of the provincial plans. Inevitably, there is huge demand by Canadians for health care services that are absolutely free.20 Inevitably, government financing always falls short of what is needed to meet the demand. And, equally inevitably, in such a huge and complex system, central management leads to shortages of the personnel and equipment that a free market would allocate to meet changes in medical knowledge and practice, changes in technology and drugs, and changes in the demand for particular treatments.


Canada, which is alone among developed countries in not permitting a private sector alongside the public sector, fares very poorly in comparison with other developed countries in its performance across important health care indicators. Esmail and Walker’s comparison of health care systems in the industrialized nations of the OECD21 concludes as follows:

The study finds that Canada, while spending more on health care than any other industrialized country in the OECD save Iceland and Switzerland, ranks twenty-second in the percentage of total life expectancy that will be lived in full health, ranks twentieth in infant mortality and twelfth in perinatal mortality, ranks fourth in mortality amenable to health care, ranks eighth in potential years of life lost to disease, ranks tenth in the incidence of breast cancer mortality, and ranks second in the incidence of mortality from colorectal cancer.


In 1970, the year when public insurance first fully applied to services from physicians, Canada ranked second among developed countries in the number of physicians per capita. Now, Canada ranks 26th.22 No doubt, the low level of publicly provided physician fees, the prohibition on extra-billing, the cap on total public billings that some provinces impose, and the shortage of places in Canadian medical schools have all played a role in that decline.23 Canada also has less high-tech equipment per capita than other developed countries with universal public health care.24 Even when hospitals have the appropriate diagnostic or surgical facilities, they often limit the hours of use in order to avoid the costs of paying overtime to nurses and other personnel.  All this leads to waiting times for diagnosis and treatment that are historically and internationally high.25  Canadians endure long delays to see specialists in some specialties, long delays  to gain access to some kinds of diagnostic equipment, and long delays for some kinds of surgery. Those who have friendships or influence within the system can shorten these delays.  Those who can afford to travel to the United States or Europe for their health care can avoid the delays altogether. Unfortunately, many of the public figures who might be able to influence the reform of the system fall into one or both of the privileged categories. Neither the Canada Health Act nor any of the provincial health care insurance plans makes any attempt to regulate waiting times for public health care.  And, in the long history of Medicare, no procedures have been put in place by either level of government to develop evidence-based standards for medically-acceptable waiting times.26 Nor have any other obligations or incentives been created to ensure that public health care is reasonably accessible—as required by the Canada Health Act.


The refusal by governments to do anything concrete about waiting times for health care has finally led to judicial review under the Charter of Rights. It has taken a while for a rights-based claim to be advanced in the courts.  One reason is that the Charter only guarantees a traditional set of legal rights, which do not include social and economic rights such as rights to food, housing and health care. Another reason is that the Charter only permits challenges to laws and other government acts that deny rights, and the complexity of the federal and provincial legal structure of Medicare makes it hard to identify a particular law that can be characterized as responsible for waiting times.

Another reason is that it is normally impracticable for a sick person to resort to the courts in order to speed up delayed medical treatment. However, in Chaoulli v. Quebec (2005),27 a physician who wanted to practise outside the public system and a patient who had suffered delays in receiving treatment in the public system brought a proceeding in Quebec. The law that they singled out for challenge was Quebec’s prohibition on the purchase of private insurance for health care that was covered by the public system. They rightly identified that law as a critical component in the cluster of deterrents to the development of a private health care sector in the province. The sophisticated legal community yawned. Didn’t the plaintiffs realize that the Supreme Court of Canada would never touch the sacred cow of Medicare? Well, the sophisticates were wrong.

The Court struck down Quebec’s prohibition on private insurance for breach of s. 7 of the Charter.


Section 7 of the Charter provides as follows:

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.


Section 7 has never been given the broad interpretation of entitling everyone to “life, liberty and security of the person”. That interpretation could well lead to the recognition of an obligation on government to provide the means of life, liberty and security of the person, and those means might well include public health care. The Court in Chaoulli reaffirmed the narrower interpretation of s. 7, which is that it provides a right not to be deprived of life liberty and security of the person except in accordance with the principles of fundamental justice. This meant that the plaintiffs in Chaoulli had to persuade the Court of three points: (1) the plaintiffs’ interest in life, liberty or security of the person was affected; (2) a law (or other government act) deprived the plaintiffs of that interest; and (3) the law was a breach of the principles of fundamental justice.


On the first point, the Court had no difficulty in deciding unanimously that life, liberty or security of the person was affected. The evidence in the case showed shocking delays in Quebec’s public health system. These delays impaired the right to life, because they sometimes increased the risk of death. They also impaired the right to security of the person, because they always prolonged pain and stress and sometimes prevented fully successful treatment.


Second, did Quebec’s prohibition on private health care insurance cause the deprivations of life and security of the person? Yes, answered the Court, again unanimously. The purpose and effect of the prohibition was to make the universal public health care plan exclusive. Faced with excessive delays in the public system, persons needing treatment were effectively precluded from obtaining timely care privately. So long as the public system failed to provide medically required services in a timely fashion, it was a deprivation of life and security of the person for Quebec to prohibit people from obtaining health care insurance privately. Since the evidence showed that Quebec’s public system woefully failed to deliver medically required services in a timely fashion, the prohibition of private health care insurance was a deprivation of the interest in life and security of the person.


It is worth pausing here to repeat that the Court was unanimous on both the foregoing two points.


Third, was Quebec’s prohibition on private health insurance a breach of the principles of fundamental justice? On this issue, the seven-judge bench split evenly (three-three, one judge declining to answer). For McLachlin C.J. and Major J. (writing with the agreement of Bastarache J.), the Quebec law prohibiting private health insurance offended the principles of fundamental justice, because it was “arbitrary”. A law was arbitrary, they said, if it “lacks a real connection on the facts to the purpose the [law] is said to serve”.28 That was the case here, because the evidence showed that other developed countries with universal public health care plans permitted parallel access to private care without injury to the public health system. For Binnie and LeBel JJ. (writing with the agreement of Fish J.), the law was not arbitrary. They agreed that arbitrary laws were offensive to fundamental justice, and they also agreed with the McLachlin-Major definition of arbitrary laws.29 But the Binnie-LeBel opinion relied on expert evidence (accepted by the trial judge) that the development of a private system would divert resources away from the public system, ultimately reducing the quality of the public health system. For them, the discouragement of private health care was a rational means of supporting the public health care system, and was therefore not arbitrary.


Deschamps J., the seventh judge, who could have broken the tie, confined herself to the Quebec Charter of Rights and Freedoms, which guaranteed personal inviolability (equivalent to security of the person) without the need to show a breach of the principles of fundamental justice. She held that the delays in the public system were a breach of the guarantee of personal inviolability caused by the delays in the public system. She did not need to decide whether the law was a breach of the principles of fundamental justice, and she did not do so. However, she did consider whether the ban on private insurance could be justified under the Quebec equivalent of s. 1 of the Charter (which authorizes reasonable limits on Charter rights).30 She held that the law was not a justified limit on the right of inviolability. She pointed to the experience of other developed countries as contradicting the theory that private health care is a threat to a healthy public system, and the tenor of her opinion was similar to that of the McLachlin-Major opinion. She agreed with the McLachlin-Major opinion that the law was unconstitutional—but only in Quebec. Her opinion created a majority in favour of striking down the Quebec law, but, by confining her opinion to the Quebec Charter, she denied national effect to the ruling. It will take another case to determine the validity of the legal restrictions on access to private health care that exist in the other provinces and territories.


In principle, the Supreme Court of Canada should be cautious about finding that a law that deprives individuals of life, liberty or security of the person is unconstitutional on the ground that it is “arbitrary”. If the bar of arbitrariness is set too low, the Court will simply be deciding cases on the basis of the judges’ disagreement with the policy rationale of the law. That is the concern that underlies the posture of restraint taken by Binnie and LeBel JJ. in their dissenting opinion. They were presumably as moved by the distressing evidence of what they described as the “serious and persistent problems”31 with the Quebec health care system as was the majority. But Binnie and LeBel JJ. accepted the government’s policy reason for prohibiting private health insurance: if the prohibition was necessary to protect the public system, as the government believed on the basis of expert advice, then it was not arbitrary. If their view had prevailed, however, not only would sick individuals have no ability to turn to private alternatives in the face of excessive delay in the public system, but the province would have no legal obligation or practical incentive to correct the deplorable state of the public system.32 (We know that the normal political motivations do not lead to corrective action, since the problems are of long standing.) The McLachlin-Major majority opinion seems far preferable from a practical standpoint, since it forces the hand of a government that refuses to correct a public monopoly that leads to deprivations of life and security of the person. The opinion creates a legal obligation to either correct the inefficiencies in the public system or permit the sick to turn to private alternatives. Moreover, the fact that other developed countries, with universal public health care (and better health care outcomes than Canada), permit a parallel private system does indeed seem to be a conclusive answer to the Canadian experts who testified that permitting private health care insurance would worsen the problems in the public system. My view is that the McLachlin-Major “arbitrary” ruling was the right one in this case.33

Will the majority view prevail when impediments to private health care outside Quebec are challenged for breach of s. 7 of the Charter? One may note that Deschamps

J. was in agreement with the substance of the McLachlin-Major opinion, and would probably have agreed with that opinion if she had been forced to decide the Charter issue. But (assuming no one changes their mind) that only accounts for seven members of the Court. Charron and Abella JJ. were appointed to the Court after Chaoulli was argued. Moreover, Major J. is due to retire from the Court in the fall and will be replaced by a presently unknown person. How will the three new judges vote in a new case? That is pure speculation, but two points are important. One is that, in my view, the McLachlin- Major opinion has the best of the argument. The second is that Chaoulli itself, although literally confined to Quebec, is a precedent that will have persuasive value. It is not likely, in my view, that the Court would decide that the constitutional law (or quasi- constitutional law) of Quebec is different from that of the rest of Canada on such an important issue. That would indeed be two-tier medicine!34


Compliance with Chaoulli


I think we can all agree with the Binnie-LeBel dissenting opinion that: “Shifting the design of the health care system to the courts is not a wise choice.”35   But the majority does not make any attempt to “design” a reformed health care system. All that the majority says is that, if the state assumes a monopoly of the delivery of health care, the state must carry out its implicit promise to deliver the health care in a timely fashion. Since Quebec did not carry out that promise, there was a breach of the Charter (or the Quebec Charter). But the majority never stipulates how the breach of the Charter is to be remedied. This is left entirely up to the Legislature of Quebec, and indeed the Court later suspended its order for 12 months to give the Legislature time to develop remedial laws.36


Every commentator on health care, whether a supporter or a critic of the decision in Chaoulli, is upset with the inadequacies of the existing public health care system, and has remedies to suggest.37  Government inaction simply allows the problems to get  worse, and yet, despite increasing public concern, the political process has not led to reform. Colleen Flood and Steven Lewis,38 who are critical of the decision, point out that “the Chaoulli decision now provides the leverage that governments need to implement such measures rapidly, regardless of the opposition they may face”. Since the measures they propose are province-wide, transparent wait lists, management systems to reduce waiting times, and speedy mechanisms for review and treatment of patients languishing on wait lists, one can safely assume that the political opposition will not be great. The mystery, of course, is why these kinds of measures were not implemented long ago. The decision of the Court was needed to force these issues onto the public agenda. If the minority view had prevailed, as Flood and Lewis would have preferred,39 there would be no impetus to carry out the needed reforms.


As Flood and Lewis point out, the public health care system must be improved to deal with excessive waiting times. The Court’s striking down of impediments to alternative private care, is premised entirely on the failure of the public system to deliver timely public services. By developing processes to identify waiting times that are too long, and then adjusting the system to eliminate them, the constitutional problem would be solved. The universal public system could remain exclusive. A parallel private system would be unnecessary. In any case, no one would want it. To be sure, the repair of the public system would require an effort of will, an expenditure of resources and flexible public management, none of which seems to have been in sufficient supply in Canadian governments in recent years. But those who believe in a universal, exclusive public system must believe that this is possible, since surely no one would deliberately condone the pain and suffering of excessive waiting times. If it is possible, then let it be done. Every province that does it will then be in compliance with Chaoulli.


The experience of other developed countries suggests that the development of parallel private health care is likely to be the ultimate solution to Canada’s under- performing health care system. The competitive pressures and additional resources that private care would introduce into the system are probably needed to improve the public system.           It goes without saying that any reform of the health care system must have as its goal the improvement of the public part of the system. I think we can trust our politicians not to lose sight of that important goal, which is presumably shared by all Canadians. As Dickson C.J. famously commented, the Charter must not 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”.40 The development of a parallel private system would require regulation in order to be sure that it helped and did not hurt the public system. Flood and Lewis are helpful in suggesting how the coexistence of private and public care (which they do not favour) could be regulated so as to avoid injury to the public system.41 This has been done successfully in other countries. Obviously, we can take what is good from their experience. And it only stands to reason that the injection of additional (private) resources into the health care system, if properly regulated, must help to relieve the pressures on the public system that now lead to unacceptable waiting times.


I do not lightly dismiss the argument that the introduction of private health care would benefit the rich more than the poor.  But a number of points need to be made about the effect of a private alternative. First, the situation of the rich would not be radically changed, because they now have access to private health care outside the country. It would surely be better for their money to be spent in the Canadian economy, supporting health care jobs here rather than in the United States or Europe. Second, many diagnostic and surgical procedures for which there are now intolerable waiting times are not particularly expensive. For example, a person of modest means might well prefer to pay privately for the speedy removal of cataracts from his eyes, rather than to wait for two years for the free surgery in Canada.42 Third, unionized employees are far from the top tier of income-earners, but they would undoubtedly be the first to carry the private insurance that would provide easy access to the private system. Fourth, and most important of all, is the point made in the previous paragraph. The experience of other developed democracies shows that, properly regulated, the availability of private care will reduce the strains on the public system, shortening waiting times in the public system for everyone.


Whatever solutions are developed to the problems of public health care, they should be guided by John Rawls’ second principle of justice, which is that social and economic inequalities are justifiable only if they improve the situation of the least advantaged members of society.43 To me, it is profoundly significant that other developed democracies with universal public health care systems all retain the safety valve of private care alongside the public system. These include countries like Australia, New Zealand and Sweden, where public devotion to equality is at least as strong as in Canada. Now that international comparisons place Canada well down in the ranking of health care outcomes,44 it is time to look at what the better-performing countries are doing. The answer may be to introduce more private care into Canada’s system. The imperative will be to do that in such a way as to improve the public system upon which most Canadians will continue to rely.

*  Peter W. Hogg, Q.C., Scholar in residence, Blake, Cassels & Graydon LLP, Toronto; Professor  Emeritus, Osgoode Hall Law School, York University, Toronto. I am grateful to Frances Hogg and Marvin Storrow, who read an earlier version of this paper and made suggestions for its improvement.

1 [2005] x S.C.R. xxx.

2 R.S.C. 1985, c. C-6, ss. 3, 7, 12.

3 For an excellent, comprehensive review of the constitutional position, see M.R.V. Storrow and A. D’Elia, “The Constitutionality of a Restricted Role for Private Health Care within Canada’s Health Care System: Part I: The Legislative Context” (2005) 63 The Advocate 691; “Part II: Charter Arguments in favour of a Parallel Private Health Care System” (2005) 63 The Advocate xxx.

4 P.W. Hogg, Constitutional Law of Canada (Carswell, 4th ed, 1997, annually supplemented), sec. 18.4.

5 R.S.C.1985, c. C-6, ss. 7-12.

6 Eldridge v. B.C. [1997] 3 S.C.R. 624, para. 25 (obiter dictum); on the spending power, see Hogg, note 4, above, sec. 6.8.

7 The story is related in Hogg, note 4, above, sec. 6.7.

8 Chaoulli, note 1, above, para. 17 per Deschamps J.; Storrow and D’Elia, note 3, above, Part I, 696; the authors go on to note that 40 per cent of the private spending came from private health insurance.

9 [2004] 3 S.C.R. 657. McLachlin C.J. wrote the opinion of the Court.

10 Id., para. 55.

11 Id., para. 62. This ground of decision is hard to understand. The implication is that the province would be obliged to fund non-physician services that were well established. But no province funds dental services, and many, if not all, provinces do not cover a variety of other well-established non-physician services, such as chiropractic, optometry or physiotherapy (to name three services recently “delisted” by Ontario to save money). See R.E. Charney, “Auton and Chaoulli: Who Decides the Future of Health Care in Canada?”, paper given at Ontario Bar Assn., 4th Annual Charter Conference, September 30, 2005, p. 14.

12 The Court also held (Id., para. 47) that the benefit claimed “is not a benefit provided by law”, which

McLachlin C.J. also regarded as fatal to the claim. This ground of decision is also hard to understand, since the claimants were arguing that the therapies that were provided by law were underinclusive in that they should have included the autism therapy. Perhaps the point was that the province’s health care insurance plan did not purport to be comprehensive with respect to even medically required services that were not provided by physicians.

13 Compare Eldridge v. B.C. [1997] 3 S.C.R. 519 (province obliged by s. 15 of Charter to provide sign- language interpretation for deaf people seeking medical services); Nova Scotia v. Martin [2003] 2 S.C.R. 504 (province obliged by s. 15 of Charter to provide full workers’ compensation benefits to sufferers from work-related “chronic pain”).

14  One such case is Wynberg v. Ont. (2005) 252 D.L.R. (4th) 10 (Ont. S.C.J.) (Ontario funds autism therapy for pre-school children, but cuts off the funding at age 6; held, the age cutoff is a breach of s. 15 of Charter, and funding must be continued at age 6 and beyond).

15  Of course, it is the most costly treatments (which most individuals cannot afford to pay for privately) that the provinces are most reluctant to add to the list of services covered by their health care insurance plans. The Supreme Court of Canada has recently for the first time accepted a government argument that high cost is a valid ground for a “reasonable limit” on a Charter right: Nfld. v. N.A.P.E. [2004] 3 S.C.R. 381 (upholding a delay in the implementation of pay equity for female public employees on the ground of a financial crisis in Newfoundland). This will enable provinces to plead cost as a reason for limiting the funding of health care services as well.

16 N. Esmail and M. Walker, How Good is Canada’s Health Care?  An International Comparison of Health Care Systems (The Fraser Institute, Vancouver, 2005), 3. Of the 30 members of the Organization for Economic Cooperation and Development (OECD), only the United States and Mexico lack a universal- access, publicly funded health care system. For that reason, neither country is a useful comparator in assessing Canada’s health care system. Esmail and Walker generally ignore both countries in their report.

17 Esmail and Walker, previous note, 3.

18 For details, see Chaoulli, note 1, above, paras. 70-73; Storrow and D’Elia, note 2, above, Part I, 698- 701.

19 A private system has developed to service the needs of those not covered by the provincial health care plans, for example, workers’ compensation patients, R.C.M.P. officers, penitentiary inmates and visitors from other countries. In British Columbia, at least, these people are all served more quickly than the ordinary Canadians who have to use the public system.

20 Most countries with universal public systems impose a charge on patients for some or all of the publicly-provided services. Canada is one of only six OECD countries that forbids extra-billing and user fees in its public system. These six countries tend to have longer waiting times than the other OECD countries: Esmail and Walker, note 16, above, 22.

21 Esmail and Walker, note 16, above, 6; for details, see 43-51. The president of the Canadian Orthopaedic Association claims that in Ontario waits for hip and knee replacements “are probably the longest in the world”: L. Priest, “Ruling opens door for U.S. hip operations”, The Globe and Mail newspaper, October 3, 2005, p. A7.

22 Esmail and Walker, note 16, above, 4.

23 The provincial governments in concert actually reduced the number of places in Canadian medical schools in 1992 with a view to reducing the amounts billed to their public health insurance: Editorial, “The CMA’s message”, The Globe and Mail newspaper, August 15, 2005, p. A6.

24 Esmail and Walker, note 16, above, 6.

25 Esmail and Walker, note 16, above, 11, 44.

26 The closest may be Health Council of Canada: Reports, “A Ten-Year Plan to Strengthen Medicare”, September 2004, under which (in consideration for $41 billion in additional federal funding) the first ministers committed to the development of evidence-based benchmarks for medically acceptable wait times for cancer treatment, heart treatment, diagnostic imaging, joint replacement and sight restoration by December 31, 2005. Whether anything will emerge from commitments that are not accompanied by any real incentives to compliance remains to be seen. Twelve months later, the Canadian Medical Association publicly claimed that “medical professionals are not being consulted as the benchmarks are being set”: G. Galloway, “Poll reveals pessimism over fixes to medicare”, The Globe and Mail newspaper, October 7, 2005, p. A7.

27 [2005] x S.C.R. xxx. Three opinions were written. McLachlin and Major J., with the agreement of

Bastarache J., wrote what became the majority opinion. Deschamps J. wrote a separate concurring opinion. Binnie and LeBel JJ., with the agreement of Fish J., wrote a dissenting opinion.  I disclose that I appeared as counsel in the case for an intervener who argued that a prohibition of private health care was a breach of

s. 7 if the public system could not provide necessary treatment in a timely fashion.

28   Id., para. 134.

29   Id., para. 233.

30 The Quebec Charter’s standard of justification is s. 9.1, and, while it uses different language than s. 1 of the Canadian Charter, it has been interpreted as having the same meaning as s. 1. The provision is set out in para. 46 of Deschamps J.’s opinion, and the interpretation is set out in paras. 47-48.

31 Chaoulli, para. 164.

32 There is a puzzling passage in the Binnie-LeBel dissenting opinion that may indicate some common ground between the dissent and the majority. Paragraph 264 reads (in full):


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, the 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.


In this passage, the reference to “the rights” of patients and the general tenor of the last two sentences seems to imply a constitutional right to receive timely health care. It is certainly a clear invitation to litigation by patients on waiting lists (however impractical that may often be). When the invitation is taken up, perhaps the courts will tease out the meaning of this apparent contradiction in the dissenting opinion.


33 It may not be necessary to accept the Court’s view that everything turns on the soundness of the policy rationale for the prohibition of private health insurance. G.J. Pratte, “The Chaoulli Decision: What does it mean for Canadians?”, paper delivered at Canadian Bar Association annual meeting, August 15, 2005, argues that the special case of health care should not have called for a ruling that the prohibition on private health insurance was arbitrary, at least in the sense required by the Court. By establishing a government monopoly of the supply of required medical services, government made a promise (explicit in the Canada Health Act, perhaps only implicit in provincial law) to make those services accessible. When the failure to keep that promise threatens life and causes unnecessary pain and suffering, then the public monopoly is itself a breach of the principles of fundamental justice. The principle is one of accountability or responsibility for government undertakings enshrined in legislation and upon which there is a strong societal consensus.

34 M.R.V. Storrow, P.W. Hogg and A. D’Elia, “Is Private Insured Medical Coverage now Lawful only in Quebec?” The Lawyers Weekly, August 12, 2005, comment that if Chaoulli is not followed, “then we truly have a two tier system of medicine in Canada: one system for Quebec and the other system for the rest of Canada”.

35 Chaoulli, para. 276.

36 Chaoulli v. Quebec, Supreme Court of Canada, August 4, 2005, order staying judgment for 12 months from date of issue, namely, June 9, 2005.

37 E.g., R.G. Evans, “Baneful Legacy: Medicare and Mr Trudeau” (2005) HealthCare Policy, vol. 1, no. 1,

p. 20 (increase funding, add prescription drugs); C. Flood and S. Lewis, “Courting Trouble: The Supreme Court’s Embrace of Private Health Insurance” (2005) HealthCare Policy, vol. 1, no. 1, p. 26 (reduce waiting times).

38 Flood and Lewis, previous note, 31.

39 They explicitly acknowledge the irony: Flood and Lewis, note 29, above, 31.

40 R. v. Edwards Books and Art [1986] 2 S.C.R. 713, 779.

41 Flood and Lewis, note 29, above.

42 Being blessed with excellent health, this is the only example I can offer from my personal experience in Ontario, where I waited for more than two years to have two cataracts removed.

43 J. Rawls, A Theory of Justice (Oxford U.P., Oxford, 1971), 60-83.

44 Note 18, above.