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Friday, June 10, 2005

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.

4 Comments:

Blogger Matt said...

For starters, awesome blog, James. This is the most intelligent analysis supporting the dissent I've seen, and by a mile.

I do quarrel with your opinion. There's two reasons why the Quebec law was found unconstitutional: (1) it's a violation of s.7, and (2) the violation does not stand up to Oakes.

Recall that it's not just the majority, but all the Justices, that believe the private prohibition is an s.7 violation (P.191, and forgive my lumping Deschamps in with the concurring Justices, at least for this comment's purposes).

The majority found that the nature of the violation did not satisfy Oakes' requirement for a rational connection to the objective of the violation, let alone "minimal impairment".

This is interesting because that of the two reasons, it's the first (where the Justices were unanimous) that would most easily change in response to (say) a complete elimination of waiting for all medical care. That is, all 7 would have to change their minds and agree that the public monopoly does not constitute an s.7 violation as no one is being harmed by waits.

On the (2nd) issue that actually split the court, i.e. whether the s.7 violation is justifiable, the majority justices can theoretically never change their minds as long as Oakes is applicable.

They found that there was no rational connection between prohibiting private insurance and protecting the public system. As long as there is a monopoly public system, there will never be evidence to prove otherwise, at least in the context of rebutting the majority & concurring opinions in Chaoulli.

I guess I would suggest you look at this whole thing from a different angle. You say, "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."

I would try, "The entire court has said that. Some people die while waiting for government funded health care - the majority is proposing that since the government can't demonstrate that the law makes sense relative to what they claim is its purpose, the law is unconstitutional so long as people continue to die."

And yeah James, of course this won't change - people will die waiting for care no matter how great the gov't system is (as will people in other jurisdictions, regardless of provider). But that is a logical, not a legal, opinion, and the majority's disinterest in spelling it out is not due to a lack of courage.

4:34 AM  
Blogger James MacDuff said...

Thanks for the props, Matt. Two thoughts:

1. Check paragraph 191 a little more closely... "unlike our colleagues, we agree with the trial judge and the Quebec Court of Appeal that this situation, however deplorable, is not capable of resolution as a matter of constitutional law."

And further, the minority's conclusion at para 265: "even accepting (as we do) the trial judge’s conclusion that the claimants have established a deprivation of the life and security of some Quebec residents occasioned in some circumstances by waiting list delays, the deprivation would not violate any legal principle of fundamental justice within the meaning of s. 7 of the Canadian Charter."

So Binnie and LeBel JJ. never really find a s. 7 violation. Even if life or security of the person might be infringed in "some" cases [their emphasis], such infringement can be justified if it conforms with the principles of fundamental justice. They never even broach the s.1 arguments, reasoning that debate on an social policy issue of this complexity simply doesn't belong in the hands of 9 judges.

2. It doesn't matter whether the majority's conclusion, that people will die waiting for care regardless of how good the system might be, is logical or legal. It simply follows from that point: if the majority wants to invoke the constitution as the means to assess a s.7 violation caused by a public monopoly, then any law banning private medical insurance will almost always be unconstitutional.

Again, check out their standard for violation of s. 7 rights set out in in paras 112-125. Not only do waiting lists that cause death breach s. 7, but even those that merely cause psychological harm. How much public money would it take to eliminate waits completely? And if it will theoretically never happen...

When I say that the majority lacked courage, it is due to the fact that they left this window seemingly open - that if only we fix the system's poor waiting times, everything will be fine.

But BY THEIR OWN VERY ANALYSIS, it is a standard set so obviously high off the ground it will never be reached. Simply put, in their estimation any such law is an arbitrary one and is not justifiable. Fortunately, that will not be the court's final word on the subject.

10:18 AM  
Blogger Matt said...

Conceded about s.7 - although I find it terribly weird (or maybe just terrible) that for me to prove that the gov't is violating my s.7 rights, I have to go through the hoops described in P.209.

I'm not a lawyer, but the whole paragraph I find to be very wrong, in a meta- sort of way. It places a burden on the appellant that seems like it should be borne by the government.

More to instant case, it seems bizarre for Binnie & Lebel to find that, nothwithstanding the dying people, the fact that no one can identify precisely (or agree on) what acceptable waiting times are a point in the government's favour.

Anyway, thanks for the lessons. I agree entirely with your 2nd point about the practical implications of this ruling. No government will be able to put any restrictions on private care unless they can prove, empirically, that they are needed to protect the public system.

I'll make you a bet, though, and say that the court will NOT be asked to revisit this. Governments, in deed if not in word, will count Ibbotson's blessings.

12:48 PM  
Blogger P. M. Jaworski said...

Well, well, well, nicely done, MacDuff. I think I'm (mostly) convinced that you're right and I was wrong.

A clear statement of what will amount to a violation of security of the person in the medical context would have been a good thing. Especially since future govs will have to make that decision.

Then again, I believe that Deschamps statement in the ruling, that the two Charters--Quebec and Canadian--are roughly equivalent on this point and therefore she will consider them both at once, is akin to her saying that a section 7 Canadian Charter violation *did* occur. The media are just getting this wrong.

No, just like same-sex marriage, this ruling will, too, spread across the country like glorious sunshine, reducing wait lists, putting smiles on children's faces, and saving the puppies from the puppy mills. ;)

3:06 PM  

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