Why are the courts still pondering the constitutionality of Canada’s health system 12 years after Chaoulli? It’s complicated.

By Stanley Hartt, March 28, 2017

Dr. Brian Day is to Canada’s universal coverage, single payer, tax-funded, government–administered system of medical care and hospital insurance what Henry Morgentaler was to our now defunct abortion laws. Just as Morgentaler repeatedly challenged (often provoked by state action taken against him) the rules that made a woman’s right to an abortion a criminal offence in some circumstances, Dr. Day has spent much of his career battling against Canada’s medicare laws.

Born in Liverpool, England, trained at the University of Manchester (with specialist training at UBC), Dr. Day is an orthopedic surgeon who operates a private clinic known as the Cambie Surgery Centre in Vancouver. Dr. Day has long believed that the federal and provincial legislation governing how Canadians access the country’s medical system is unconstitutional because it prohibits choice and access to private services outside the provincial plans for medically necessary services.

In 2005, the Supreme Court of Canada rendered a decision known as Chaoulli v. Quebec (Attorney General), in which the majority found that Quebec’s Health Insurance and Hospital Insurance Acts were inconsistent with the provisions of the Quebec Charter of Human Rights and Freedoms.  Section 1 of that Charter provides that, “Every human being has a right to life, and to personal security, inviolability and freedom.”

Section 7 of the Canadian Charter of Rights and Freedoms enshrines a similar principle, declaring that,   “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.”

The Plaintiffs were two individuals, Dr. Jacques Chaoulli,  a physician who had tried unsuccessfully to obtain regulatory recognition for medical services delivered at patients’ homes and to obtain a licence to operate an independent private hospital, and George Zeliotis, a patient who had waited extraordinary lengths of time for each of two hip replacements, but, because such surgery was deemed “elective,”  had suffered in pain.

The essence of the claim by the Plaintiffs was that, when waiting times for medically necessary and insured services exceed what are tolerable norms according to the consensus of expert medical opinion, the resulting pain, tissue damage, deterioration, or death of a patient represents an infringement of that person’s right to life and/or personal security.

Dr. Day’s Cambie Surgeries Corp., along with a number of other BC-based private clinics, were interveners in that case.

So, if wait times that are longer than medically advisable can lead to a decision by the country’s highest court that our vaunted and cherished system of medicare can be unconstitutional, why is the issue still being debated before the BC Supreme Court by, among others, the very same Dr. Brian Day and Cambie Surgeries?

The answer is complicated: first of all, in what may be seen as a stroke of genius for their immediate purposes, the Honourable Justices of the Supreme Court (there were only seven on the bench at that particular time, Justices Frank Iacobucci and Louise Arbour having resigned and their replacements not yet named) determined that Madame Justice Marie Deschamps should write the notes for the majority. She concluded that, finding a violation of Quebec’s own Charter in the factual circumstances before the Court made it unnecessary (if not inexpedient) to base the decision on the Canadian Charter as well. The three Justices who concurred with her (McLachlin, Major and Bastarache) did expressly find a violation of Section 7 of the Canadian Charter, but the three dissenting Justices (Binnie, LeBel and Fish) held otherwise.  As a result, the Supreme Court has not, in fact, rendered a decision that would apply in British Columbia.

There is a legal maxim that a court judgment may either have effect by reason of authority...or by the authority of reason

There is a legal maxim that a court judgment may either have effect by reason of authority (our system of stare decisis where lower courts are bound to follow the law as established by higher tribunals) or by the authority of reason (because of the persuasiveness of the arguments employed by any court, even one in a foreign jurisdiction, to reach a given conclusion). Even if Chaoulli does not strictly bind the Supreme Court of BC, isn’t it obvious that arbitrary and random delays in treating a patient’s disease, illness, or other condition in a time frame beyond what is medically acceptable violates that person’s  “personal security” or “security of the person”?

Well, not exactly. In the first place, there is the little matter of the concluding words of Section 7 of the Canadian Charter itself: “and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” These words, which do not appear in the Quebec Charter, were the subject of some debate in the Court of first instance, the Court of Appeal and  the Supreme Court in the Chaoulli case.

Then there is the issue of what to do about the language in Section 1 of the Canadian Charter on the constraints on rights that arise out of concern for the general welfare. As it notes, the rights set out in the Charter are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”  (Quebec’s version of the same concept, as expressed in Section 9.1 of the Quebec Charter, is more confusing and reads, “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.”)

The conclusions sought by Dr. Day and his Centre in their BC action go well beyond the conclusions of the Supreme Court in Chaoulli and seek the right to establish a parallel private, for profit medical care system in BC alongside the publicly-funded one.

So Dr. Day’s quest is not necessarily quixotic, though it might turn out to be futile or backfire. Remember when the Supreme Court found, in the case of Sue Rodriguez, that physician-assisted suicide could not be justified under our Constitution only to reverse itself on what read like exceptionally flimsy grounds in the recent Carter case? The Chaoulli decision unleashed a barrage of fear and loathing based on the premise that the state system could never be funded so generously as to always guarantee that every individual was treated within the time norms set by the medical profession. The decision therefore was seen as representing a slippery slope leading to the disappearance of medicare as we know it. It would not be unreasonable to be concerned that the Court may want to take advantage of a second chance to “clarify” the logical implications of its earlier analysis.

A mitigating factor might be the way Quebec responded to the threat to its entire system of service delivery and payment which had been in place since 1970. So certain was Quebec’s government that they would win the Chaoulli case in the Supreme Court of Canada, that they omitted to ask the Tribunal for time to implement an adverse decision. Hurriedly reacting to the prospect of dismantling their entire scheme, they petitioned the Court for time and won the right to a year to comply.

The manner of complying mollified the “end of the world” scenarios painted by medicare’s staunchest defenders and a minimalist modus vivendi has emerged. Acknowledging that orthopedic procedures to replace damaged hips and knees were likely never to  be able to be delivered in a medically timely manner (and adding cataract surgery for good measure for the same reason), Quebec agreed to have these procedures eligible for the purchase of private insurance. They also had the implementing statute make provision for other procedures to be added to the list by regulation if it became evident that these other treatments were also not being delivered within an acceptable timeframe.

In 2009, the number of surgical procedures that can be performed in Quebec private clinics jumped significantly.

In 2009, the number of surgical procedures that can be performed in Quebec private clinics jumped significantly. In addition to hip and knee replacements and cataracts, private clinics are now able to do a wide range of procedures, including a number of major surgeries. Other provinces have, to varying degrees, followed the model of encouraging greater use of private clinics which, far from demolishing medicare as we know it, has kept the wolf from the door by decreasing wait times for these interventions and augmenting in-hospital resources, including  the availability of operating rooms.

The Chaoulli judgment did establish certain findings by three of the judges forming part of the majority (Justices McLachlin, Major, and Bastarache), which Dr. Day should not want to put back on the table. First, they found that the prohibition on medical insurance, as provided in section 15 of the Health Insurance Act and section 11 of the Hospital Insurance Act, violates section 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.” Second, they found that “[a]ccess to a waiting list is not access to health care,” given that “in some serious cases, patients die as a result of waiting lists for public health care.” Third, despite the government arguing that private health facilities will “reduce the quality of public care,” they found instead in a review of other developed countries that “there is no real connection in fact between prohibition of health insurance and the goal of a quality public health system.”

So why is Dr. Day insisting on revisiting these dicta in his favour? His hand was forced by a proceeding initiated against several BC private clinics for charging user fees and engaging in extra billing for medically-necessary services covered by the publicly-funded plan. As a result, the Defendants launched a Charter challenge in 2009 claiming that the law protecting single-tier public medicare is unconstitutional, citing the Chaoulli case. The presentation of evidence in this case before the BC Supreme Court only began in 2016.

The purpose of this counter-offensive may seem to be to prevent an audit to back up the extra-billing accusation, but the Statement of Claim seeks, inter alia, “A declaration that the provisions in the Act that directly or indirectly prohibit or impede access to private health care and patient choice in primary health care are in violation of sections 7 and 15 of the Charter and such violation is not demonstrably justified under section 1 of the Charter.” This goes well past the holding in Chaoulli. Since it is not solely based on wait times or how provinces may administer their affairs to assure the constitutional validity of their medicare systems, it puts the future of Canada’s entire health care regime into question again.

Stanley Herbert Hartt, OC, QC is a lawyer, lecturer, businessman, and civil servant. He currently serves as counsel at Norton Rose Fulbright Canada. Previously, Mr. Hartt was chairman of Macquarie Capital Markets Canada Ltd. Before this he practiced law as a partner for 20 years at a leading Canadian business law firm and was chairman of Citigroup Global Markets Canada and its predecessor, Salomon Smith Barney Canada. Mr. Hartt also served as chairman, president, and CEO of Campeau Corporation, deputy minister at the Department of Finance and, in the late 1980s, as chief of staff in the Office of the Prime Minister. He also served as counsel for a group of intervenors in the Chaoulli case.