The Charter & Health Care in Canada

Jay Makarenko — Fri, 01 Jul 2005 00:00:00 -0600

The issue of waiting lists in Canada's public health care system has given rise to a new national debate: the nature of health care rights under the Canadian Charter of Rights and Freedoms. In June 2005, the Supreme Court of Canada rendered a politically controversial decision in the case of Chaoulli v. Quebec (Attorney General), finding that citizens had a right to access private health care when the public system failed to provide adequate health services. This article discusses the Supreme Court of Canada's decision in that case, as well as its potential impact on Canada's health care system.

Background on the Chaoulli Case

How did the case come about and what does it involve?

The Charter & Health Care Policy

Section 7 of the Charter and its relationship to health care

Decision of the Supreme Court of Canada

What did the Supreme Court decide in the Chaoulli case?

Analysis of the Supreme Court’s Decision

What are some consequences of the Supreme Court’s decision for health care?

Links to More Information

A list of links for more information on this topic

Background on the Chaoulli Case

How did the case come about and what does it involve?

The following provides an introduction to the Chaoulli case, including the facts of the case, a description of the laws that were being challenged, the major issues, and its judicial history.

Facts of the Case

The case involves two individuals, a patient and a doctor.

Georges Zeliotis is a 70-year old salesman and a resident of the province of Quebec. In recent years, Zeliotis has suffered from several health conditions requiring he undergo medical treatment, including heart surgery and several hip operations. With respect to his hip surgery, Zeliotis was placed on a hospital waiting list in Montreal for nearly a year before he was able to receive his medical treatment. While he was on the waiting list, Zeliotis made enquiries to determine if he could pay to obtain hip surgery through a private health care facility. He also wanted to ascertain whether he could purchase private health care insurance in the event that he should require similar treatment in the future. Obtaining hip surgery by means of a private facility, as well as purchasing private health care insurance, however, were both actions prohibited by Quebec law.

Jacques Chaoulli is a physician in the province of Quebec. In his practice, Dr. Chaoulli provided medical services to many of his patients at their homes. For several years, Chaoulli has been in a dispute with the Quebec provincial government. Chaoulli had appealed to the Government of Quebec to cover the costs of the home medical treatment offered to his patients. He also requested that the province grant him the right to establish a private and autonomous hospital. The province denied both of Chaoulli’s requests.

Which Laws Were Challenged?

It is important to be clear on the nature of the laws that were challenged in this case.

In 1997, when the case began, there were two main pieces of legislation governing health care in Quebec, the Hospital Insurance Act (or HOIA) and the Health Insurance Act (or HEIA). The HOIA regulated access to health services and the organization of hospitals in Quebec, while the HEIA regulated the provision of health care insurance in the province.

Zeliotis and Chaoulli challenged specific sections of these laws. With regard to the Hospital Insurance Act, they challenged Article 15, which prohibited private insurance for services covered by the government’s insurance plan. Article 15 did not, however, prohibit private insurance completely. It only prohibited private insurance for medical treatments that were already insured under the government’s public insurance plan (for example, basic medical services and surgeries). Accordingly, with regard to basic medical treatment, patients could only purchase government insurance. For all other health services they could choose from different private insurance plans, or no insurance at all.

With respect to the Health Insurance Act, Zeliotis and Chaoulli challenged Article 11, which prohibited private contracting for medical services in hospitals by physicians who were non-participants in the government insurance plan. Whereas the first law had to do with patients and how they could pay for medical services, Article 11 had to do with doctors and how they could charge for medical services. It prohibited those doctors who chose not to participate in the government’s public insurance plan from setting up private hospitals and then charging directly for their medical services.

The effect of the two laws was to put severe restrictions on private medical insurance and services in Quebec.

What Are The Issues of This Case?

The view of Zeliotis and Chaoulli was that patients should be free to purchase private health insurance, or choose to receive medical services through private health providers. The matter of private vs. public delivery of health care services, however, constituted only one issue at play. There was another salient concern in this case: the growing impact of waiting lists in public service health care delivery in Quebec. Increasingly, patients have found themselves waiting extended periods of time before being able to access required medical services. In this context, Zeliotis himself had to wait nearly a year before receiving hip surgery through the public health system.

The issue of access to private health care was debated within this larger context of waiting lists. The question for the courts was simply whether Canadians should have the freedom to buy private health insurance and services. Instead, it became about the state of public health care in Canada, and whether it is right for governments to prohibit private medicine when so many patients are facing long delays for medical treatment in the public health system.

Judicial History

Three different courts heard this case, two in Quebec, followed by the Supreme Court of Canada.

In 1997, Zeliotis and Chaoulli went to the Superior Court of Quebec, asking it to strike down Article 15 of the Hospital Insurance Act and Article 11 of the Health Insurance Act. One of their main arguments was that the limited access to private medical services violated the rights to life, liberty, and security of the person under Section 7 of the Canadian Charter of Rights and Freedoms.

See the Background on Section 7 of the Charter section of this article for an introduction to the Section 7 rights to life, liberty, and security of the person.
Also see the Section 7 and Health Care section of this article for more on how Section 7 is relevant to the health care debate.

The Superior Court of Quebec disagreed. The Court concluded that the Quebec government’s decision to limit access to private health care was constitutional under the Charter; it dismissed the case.

Zeliotis and Chaoulli appealed that decision to the Quebec Court of Appeal. Again the two made the argument that a limited access to private medical services violated individual rights enjoyed under Section 7 of the Charter. The Quebec Court of Appeal, however, upheld the Superior Court’s decision, and dismissed the case.

See the Decisions of the Lower Courts section of this article for more on how the Quebec Superior Court and Court of Appeal decided this case.

Zeliotis and Chaoulli again appealed the decision, this time to the Supreme Court of Canada, the nation's highest court. In June 2005, a majority (four of seven judges) on the Supreme Court overturned the decisions of the two Quebec courts. The ruling by the Court found that restricting access to private medical services was illegal vis-à-vis the significance of wait lists for treatment under Quebec’s public health system. The decision immediately set off fierce debate about the future of health care in Canada.

See the Decision of the Supreme Court of Canada section of this article for more on how the Supreme Court decided this case.

The Charter & Health Care Policy

Section 7 of the Charter and its relationship to health care

The Chaoulli case centred on Charter rights in the context of health care policy, in particular, Section 7 of the Charter. Before discussing the Court's decision in that case, it is important to be clear on the nature of the Section 7 right and its relationship to health care policy.

Section 7 of the Charter

Section 7 of the Charter states that Canadians have the right to three key things:

Life: Canadians have a right to be alive and not to be killed.
Liberty: They also have right to be free from the interference of the government in their actions.
Security of the person: Finally, they have the right not to be harmed physically, mentally, or psychologically.

While Canadians are entitled to life, liberty, and security of the person, Section 7 does not grant these rights absolutely. Instead, the Section states that these rights may be taken away if, and only if, done so in a manner that is consistent with the principles of fundamental justice. In other words, these rights may be violated if it is done in a "just" manner.

Example of Section 7 in Action

It might be helpful to use a hypothetical example to work through the ideas of Section 7. Let’s say you are arrested for stealing a car. The police formally charge you for the crime and you are quickly sent to trial. At the trial, you are able to present evidence in your defence and question the prosecution’s witnesses. However, your defence is not strong enough and you are convicted and given two months in prison.

Have your rights under Section 7 been violated? On one level they have. Section 7 states that you are entitled to life, liberty, and security of the person. The fact that you now find yourself in prison is a definite violation of one of those entitlements — the right to liberty. Remember though, Section 7 allows the government to take away your life, liberty or security of the person if it does so in a manner consistent with the principles of fundamental justice. Have you been treated "justly" in your case? Indeed you have. While your liberty was taken away, certain principles of fundamental justice were followed. You were given a timely and fair trial, and your punishment reflected the severity (or lack thereof) of your crime. Hence, there is no violation of Section 7.

Let’s consider a slightly different scenario. You are arrested for stealing the car, but this time you are left in jail for two years before receiving a trial. When you do get to trial, you discover that you are not allowed to defend yourself in any way at all. Further, the judge states at the outset that he hates car thieves and can’t wait to make an example out of you, regardless of whether you are in fact guilty or not. You are convicted of the crime and the judge sentences you to life in prison.

In this scenario we see a clear violation of Section 7. As in the first case your right to liberty has been violated by the fact that you are now in prison. What is different though, is that your liberty has been deprived in a manner contrary to the principles of fundamental justice. You were not given a timely trial, nor was it conducted in a fair or impartial manner. Moreover, the punishment meted out was too extreme for the crime.

Section 7 & Health Care Policy

So what is the relationship between Section 7 and health care policy?

In their case, Zeliotis and Chaoulli argued that limits on access to private medical services, which forced patients onto waiting lists in the public system, violated their Section 7 rights to life and security of the person. With regard to “life,” it was argued that delays in medical treatment resulted in a higher chance that the patient’s illness or injury could become fatal. This higher risk of death, it was suggested, was a violation of the right to life. As for “security of the person,” it was argued that the delays (in being able to receive medical treatment) resulted in a higher chance that a patient’s illness or injury would become permanent, and that patients who had to wait for medical treatment consequently experience great psychological suffering. In the view of Zeliotis/Chaoulli, both of these factors suggested a clear violation of the right not to be harmed physically, mentally, or psychologically.

Remember though, Section 7 permits governments to violate rights to life and security of the persons, if it does so in a "just" manner. Zeliotis and Chaoulli, however, argued that the Quebec government’s prohibition of access to private health care, the cause of the violation of the Section 7 rights, did not meet this condition/standard.

An important principle of fundamental justice is that any violation of a person’s life, liberty, or security of the person should not be committed arbitrarily. That is, such a violation should not occur on a whim, or without due reason or necessity. Whenever the government puts the life, liberty, or security of persons at risk, it must have reason to do so. Zeliotis and Chaoulli argued that the government’s decision to limit access to private health care was in fact arbitrary. According to them, there was no valid reason for the government to stop people from seeking out private medical treatment when the alternative was to rely on a public system characterized by wait lists and, in their view, increased risk of suffering and death.

In contrast, the Government of Quebec asserted that it had good reason to maintain such a prohibition. It argued that the protection of the public health system, and its ideal of health care based on need rather than wealth, was an important government objective. Moreover, to protect the public health system, it was necessary to restrict access to, and the growth of, private health care.

Decision of the Supreme Court of Canada

What did the Supreme Court decide in the Chaoulli case?

The Supreme Court of Canada allowed Zeliotis and Chaoulli’s appeal. However, it was very divided on the issue, with only four of the seven justices allowing the appeal. The following provides an overview of both the majority and minority's decisions in this case.

The View of the Majority: The Position of Justices McLachlin, Major, and Bastarache

While a majority of the seven judges agreed that Zeliotis and Chaoulli’s appeal was to be allowed, they did so for different reasons.

Three judges, McLachlin, Major and Bastarache, concluded that limitations imposed by the Government of Quebec on access to private health care, and in particular the prohibition of access to private health care insurance, violated Section 7 of the Charter. Moreover, the judges deemed that the violation was not justifiable under Section 1 of the Charter.

Highlights of the decision are as follows:

Violation of Section 7 Rights

For McLachlin, Major, and Bastarache, the evidence showed that waiting lists in Quebec’s public health care system — and the associated delays in treatment — to be widespread and severe. In the estimation of the judges, this lack of patient access to timely health care was viewed as a key factor with the potential to cause serious psychological and physical suffering in patients — and in some cases, perhaps even death. In their view, where there is the risk of patient suffering, the Section 7 right to security of the person under the Charter is deemed to have been violated. Where there is the risk of patient death, the Section 7 right to life is deemed to have been violated.

The three judges also found a link between the actions of the Quebec government and the violation of the Section 7 rights. The failure of the government to deliver timely health care in the public health system, in addition to the limitations imposed by the government on access to private insurance, increased the risk of patient suffering and death.

Contrary to the Principles of Fundamental Justice

McLachlin, Major, and Bastarache further concluded that prohibition on private insurance was arbitrary and, hence, contrary to the principles of fundamental justice. For them, there was no clear evidence that the prohibition was connected to maintaining quality public health care. In their view, any prohibition on private insurance was viewed as a violation of Section 7 of the Charter.

Not justified under Section 1 of the Charter

McLachlin, Major, and Bastarache also found the violation of Section 7 could not be justified under Section 1 of the Charter. This Section permits the government to violate a right or freedom guaranteed under the Charter if the government could show good or sufficient reason. The judges accepted the Quebec government’s argument that it should be allowed to protect the public health system. However, they disagreed that the ban on private health insurance was necessary to meet this objective. For them, the integrity of the public health system could be maintained even if Quebecers were allowed to purchase private health insurance.

The View of the Majority: The Position of Justice Deschamps

While Justice Deschamps agreed with Justices McLachlin, Major, and Bastarache that the appeal should be allowed, she did so using a very different approach: she decided the case under the Quebec Charter of Human Rights and Freedoms, rather than the Canadian Charter of Rights and Freedoms.

Before moving on to her reasoning for allowing the appeal, it is important to discuss the Quebec Charter. The two charters referenced are not one and the same. The Canadian Charter is part of the Canadian Constitution; it applies to all people and governments in Canada (including Quebec). In contrast, the Quebec Charter is provincial legislation passed by the Quebec legislature that applies only within the borders of Quebec. In effect, then, Quebecers have two charters protecting their rights and freedoms.

While there are great similarities between the two documents, the Quebec and Canadian charters do differ somewhat in terms of the rights and freedoms they guarantee. Hence, a decision made under the Quebec Charter is not automatically binding under the Canadian Charter — unless explicitly stated.

In the Chaoulli case, the Supreme Court reviewed legislation passed by the Government of Quebec. Accordingly, the Court could review the legislation under both the Quebec and the Canadian charters. In this regard, however, if the Court found that the legislation violated one of the charters, there would be no need to make an assessment under the other. The legislation would be struck down, and the Court would not have to weigh in as to whether or not the legislation would have violated the second charter.

This is exactly what Deschamps did. She struck down the legislation under the Quebec Charter, and did not explicitly state whether she would have rendered the same verdict under the Canadian Charter.

In terms of her specific conclusions, Deschamps found the following:

Violation of Quebec Charter Rights

For Deschamps, the evidence showed that delays in medical treatment caused by waiting lists, coupled with limited access to private medical treatment, increased a patient’s risk of mortality, and the risk that his/her injuries would become irreparable, or the risk of pain and suffering while waiting for treatment would increase. This “increased risk” violated the rights to life, and personal inviolability, under Section 1 of the Quebec Charter.

Not Justified Under the Quebec Charter

Deschamps concluded the violation of the rights to life and personal inviolability under Section 1 of the Quebec Charter was not justified under Section 9.1 of the Quebec Charter. For her, the Quebec government’s decision to prohibit private health insurance had an important purpose: namely, to protect the integrity of the public health system. However, in her view, the evidence did not show why it was necessary to have an absolute prohibition on private insurance. According to Deschamps, there were alternative methods available to the government that would have protected the public health system without violating an individual’s right to life and personal inviolability so severely.

The View of the Minority: The Position of Justices Binnie, LeBel, and Fish

Three judges, Binnie, LeBel, and Fish, disagreed with the majority and concluded that Zeliotis and Chaoulli’s appeal should be disallowed. For them, the Quebec government’s prohibition on private health insurance neither violated Section 7 of the Canadian Charter, nor was it illegal under the Quebec Charter.

It is also important to note that the minority expressed strong concern over the implications of the majority’s decision — and particularly, that the majority was being too active in Canadian health care policy and debate.

The following is an overview of the minority’s conclusions:

Possible Violation of Section 7 Rights

The minority judges concluded that the current state of the Quebec health system, linked to the ban on access by Quebec residents to private insurance, was capable of putting patients at risk of suffering and death. This represented a violation of the rights to life and security of the person under Section 7 of the Charter.

Binnie, LeBel, and Fish, however, found the prohibition of private insurance to be in accordance with the principles of fundamental justice and, hence, in their view, there was no violation of Section 7 overall. They disagreed that the Quebec government’s decision to prohibit private insurance was arbitrary and, accordingly, contrary to the principles of fundamental justice. For them, the prohibition was directly related to Quebec’s desire for a strong single-tiered, needs-based, public health system. Prohibiting private insurance discouraged the expansion of private health services and protected the integrity of the public system.

The judges who ruled in the minority also pointed out there was no clear evidence to suggest wait lists would be improved if the Government of Quebec permitted private health insurance and health care service delivery. In their view, the development of a parallel private system could trigger reduced funding of the public system by government, and actually worsen waiting lists in the public system overall.

As, in their view, there was no Section 7 violation, the minority found the prohibition of private health insurance by the Quebec government to be constitutional under the Canadian Charter. Using similar rationale, the minority also found there to be no violation of Quebecers’ rights under the Quebec Charter.

Criticism of Majority Decision

The minority did more than simply disagree with the majority. Justices Binnie, LeBel, and Fish went on criticize the majority for pushing the courts much too far into Canadian health care policy. In their view, the decision of the majority pushed the judiciary into new territory — in the sense of determining, in constitutional terms, the scope and nature of “reasonable” health services. Not only would it be very difficult, in practical terms, for the courts to address this standard in constitutional terms, but also the minority felt that such an issue was best left to democratically elected politicians.

Analysis of the Supreme Court’s Decision

What are some consequences of the Supreme Court’s decision for health care?

In the end, the Supreme Court of Canada struck down the Quebec laws that prohibited private insurance for services covered under the government’s public insurance plan and also limited patients’ access to private medical treatment. The consequences of the Supreme Court decision, however, are very complex. The following provides a discussion of what the decision means to health care in Canada.

Private Versus Public Health Care in Canada

There may be a tendency to conclude the Supreme Court decision has opened the door wide to the delivery of private health care services across Canada. However, closer analysis shows this is not quite the case.

What the court was concerned with were the delays faced by patients in receiving medical treatment. For the majority of the Supreme Court of Canada, these delays caused a higher risk of suffering and death to patients and violated rights under the Canadian and Quebec charters.

Furthermore, the majority contributed this problem to a combination of two things: waiting lists in the public system and limited access to private medical treatment. It was asserted that these two factors drastically reduced the ability of patients to receive timely health care. On one hand, they had to endure waiting lists in the public system. On the other, they could not bypass the waiting lists by accessing private medical treatment.

The majority decided that something had to give. The delays in medical treatment faced by patients were unacceptable and the causes of these delays had to be eliminated. However, the court did not paint the Quebec government into a corner. It did not conclude that the government must allow greater access to private medicine no matter what. It only stated that greater access must be allowed if patients could not receive timely treatment in the public system.

What this means is that the government can continue to limit access to private medicine if it takes care of the problems in the public system. It must reduce waiting lists and ensure that patients in the public system receive medical treatment in a timely manner. If not, then Canadians should be able to bypass waiting lists through private health care.

In the end, the Supreme Court has left much room in the debate on private versus public health care in Canada. While it has rejected the current state of health care, and is demanding governments to act, it has not forced their hand in one direction or the other.

For more information on the debate over the future of health care in Canada:

Health Care Rights Under the Charter

One of the most important implications of the Chaoulli decision is that the courts have strengthened health care rights in Canada. Traditionally the courts have granted very limited health care rights to Canadians under the Charter. They have preferred to let elected legislatures decide how and when Canadians could access medical treatment.

However, the Chaoulli case suggests that may no longer be the case. The majority of courts have recognized the right of Canadians to enjoy “timely access” to health care. Canadians can make a claim against governments whenever they are faced with delays in receiving the medical treatment they need. Governments must act in a manner that ensures this timely access.

It is important to note, however, that the precise nature and scope of this whole issue remains far from clear. While the Chaoulli case illustrates that waiting lists would be a violation of this right, it remains to be seen whether other problems, such as an inability to pay for medical treatment, would also qualify as a violation of the right to timely health care access.

Moreover, the constitutional status of this right is not yet clear. Only three of the seven judges (Justices McLachlin, Major, and Bastarache) explicitly stated that there was a right to timely access under Section 7 of the Charter. The judges in the minority (Binnie, LeBel, and Fish) were not explicit on this issue. The other majority judge (Justice Deschamps) decided the case under the Quebec Charter, remaining silent on whether there was a right to timely access to health care under Section 7 of the Canadian Charter.

Finally, it is important to mention that none of the judges suggested a Charter right to private health care. The key issue for the Court was waiting lists.

Role of the Courts in Health Care Policy

The Chaoulli decision also has the potential to evoke major change in the role that courts play in determining Canadian health care policy. The courts have traditionally steered clear of interfering in government decisions regarding health care. Past court decisions have shown a strong preference to leave decisions concerning health care within the domain of the democratic process and elected politicians.

However, now that a right to “timely access” to health care has been established, the role of the court may be significantly broadened. The minority judges highlighted this new role for the court in their decision. They asserted that the courts would now be responsible for determining what “timely access” means and whether it exists in the health system or not. In this context, anytime patients feel their right to timely access has been violated, they can turn to the courts for a judgement. If the courts find that standards are not met, they can force the government to change its policies accordingly.

Section 7 of the Charter

The Charter & Health Care in Canada

Background on the Chaoulli Case

How did the case come about and what does it involve?

The Charter & Health Care Policy

Section 7 of the Charter and its relationship to health care

Decision of the Supreme Court of Canada

What did the Supreme Court decide in the Chaoulli case?

Analysis of the Supreme Court’s Decision

What are some consequences of the Supreme Court’s decision for health care?

Links to More Information

A list of links for more information on this topic

Background on the Chaoulli Case

Facts of the Case

Which Laws Were Challenged?

What Are The Issues of This Case?

Judicial History

The Charter & Health Care Policy

Section 7 of the Charter

Example of Section 7 in Action

Section 7 & Health Care Policy

Decision of the Supreme Court of Canada

The View of the Majority: The Position of Justices McLachlin, Major, and Bastarache

Violation of Section 7 Rights

Contrary to the Principles of Fundamental Justice

Not justified under Section 1 of the Charter

The View of the Majority: The Position of Justice Deschamps

Violation of Quebec Charter Rights

Not Justified Under the Quebec Charter

The View of the Minority: The Position of Justices Binnie, LeBel, and Fish

Possible Violation of Section 7 Rights

Criticism of Majority Decision

Analysis of the Supreme Court’s Decision

Private Versus Public Health Care in Canada

Health Care Rights Under the Charter

Role of the Courts in Health Care Policy

Links to More Information

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Government Links

Legislation Links

Research Links