Final Chaoulli Thoughts

Nothing like a watershed Supreme Court of Canada case to distract you from other responsibilities... [and on a Friday night? for shame - ed.]

In the comments to my post below, old History 121 sparring partner Peter Jaworski [who has a great slideshow of newspaper frontpage coverage] criticises the minority for delving into unnecessary philosophical minutiae:

"So what if the Court cannot rule on precisely how many MRIs is in accordance with the Charter? All they needed to show was that the current system falls below 'reasonable.' "

To a point, yes. But the problem with the majority's reasoning remains - the top court here is also attempting to entrench a constitutional standard, not just decide on the reasonableness of the current system as it existed when Chaoulli sought private insurance.

Why is this of concern? Suppose you now attempt to contract for private medical insurance in some Canadian province, based on the majority decision in Chaoulli. Paul Martin and your provincial premier say, "hang on a second, while the delays were unreasonable before, now that we have injected our $41 Billion, they are clearly on the decline. We have saved Medicare, as we known it and Canadians love it, from the evils of a court-imposed two tier." In other words, they "fixed" the system, so the concerns that allowed for the sale of private medical insurance just went up in smoke.

"No way", you respond, "these delays are still unreasonable". Well, who decides if they still are? Since the majority gives little to no guidance as to how we might objectively assess this, we're looking at a stream of litigation [or at least a final, definitive ruling] to determine the "reasonable" boundaries. Certainly not the most efficient or democratic means to develop policy. And then there's the uncertainty: maybe I want private medical insurance, but it turns out the delays in my particular city/province are non-existent - what then? (etc.. with the hypotheticals).

The majority is essentially proposing that the constitutionality of the law banning private medical insurance is now to fluctuate based on a macro-level indicator ["delays"] that is prone to a potentially high degree of subjective interpretation and interpretation.

Perhaps this is only because Justices McLachlin, Major, and Bastarache didn't have the courage to come right out and state that any exclusively public system is bound to have such delays, and so violates s. 7 in that respect. Though radically more controversial, this would have had the advantage of being readily discernable, and I suspect it more closely aligns with the beliefs of those hailing the verdict. As I highlighted in their reasoning in the post below, the majority already seems to have traveled a ways down that path.

Don't think the minority is unaware of the futility of any "Harsanyi-type" analysis either, as Jaworksi accuses them of employing below [ie. how can we ever know exactly what "reasonable" looks like]. They just don't think that constitutional argument at the Supreme Court is the proper place to engage in this determination. As Binnie and Lebel JJ. state in para. 170:

"The issue here, as it is so often in social policy debates, is where to draw the line. One can rarely say in such matters that one side of a line is “right” and the other side of a line is “wrong”. Still less can we say that the boundaries of the Quebec health plan are dictated by the Constitution. Drawing the line around social programs properly falls within the legitimate exercise of the democratic mandates of people elected for such purposes, preferably after a public debate."

And that, neatly, is exactly why the case is ultimately so fascinating. Conservatives who champion the role of the legislator over the judge should be dismayed at this intrusion, but also overjoyed at the victory of a cherished victory for private enterprise over the state. For liberals, exactly the reverse. It's the old "ends versus means" dilemma: yet another debate for classical philosophy, and one all too familiar.