Jacques Chaoulli is a doctor who provided home appointments to patients. He attempted to get a licence so he could offer his services as an independent private hospital, but was rejected due to provincial legislation prohibiting private health insurance.
Together, the two men sought a motion for a declaratory judgment to contest the prohibition.
The appeal court's characterization of the issue as an infringement of an economic right is rejected by Deschamps. She goes on to note that the long waits at hospitals can result in deaths and that private health care prohibited by the Quebec Acts would likely have saved those lives. The wait lists, she claims, are an implicit form of rationing, and it is the government's rationing policy that is being challenged here as a violation of the right to "security of person" (per Canadian Charter) and "personal inviolability" (per Quebec Charter).
Deschamps sides with the trial judge in finding a violation of section 7 of the Canadian Charter, although she interprets it as being more of a violation of the similar section 1 of the Quebec Charter. She adopts a broad interpretation, citing R. v. Morgentaler among others as examples of delay in medical treatment as a violation of security of person. She further rejects the dissent's suggestion that a patient could seek medical treatment outside of the province as too extreme and case-specific.
Turning to the requisite analysis to justify the violation, Deschamps points to the "minimal impairment" expectation to be the one of most interest. Expert and witness testimony was examined of which she found it to be not particularly credible nor useful. She then examines other provinces' health legislation, finding the lack of prohibitory legislation allows her to conclude that the Quebec Acts are not necessary to preserve the public health plan. Studies on public health programs in other countries examined by Deschamps support this claim.
The issue of deference to government is considered. "When the courts are given the tools they need to make a decision, they should not hesitate to assume their responsibilities, she states, claiming that social policies developed by the government should not be shied away from by the courts. Only if given a justification consistent with democratic values and sufficiently necessary to maintain public order should deference be given.
In concluding, Deschamp points her finger squarely at the government and suggests the need for change:
To determine a violation of the Charter they look at how the Quebec Acts differ from the Canada Health Act'. They note that in contrast with other legislation, the impugned Acts remove the ability to contract for private health care insurance and in effect create a virtual monopoly for the public health system. On the evidence of significant delays in service, this monopoly harms the right to security of person. Delays in medical treatment could have physical and stressful consequences.
McLachlin and Major focus on the Act as a violation of the principle of fundamental justice that laws cannot be arbitrary. They both found that the legislation lacked a real connection on the facts to the purpose the legislation is said to serve. In reviewing the public health care systems of several countries they find that the connection was missing. In defence of this, they both criticize the dissents rejection of international data as well as a reliance on what they characterized as inconsistent reports from Romanow and Senator Kirby.
They describe the problem as an issue of public policy and social values which is not for the courts to decide.
Binnie and LeBel primarily take issue with the majority's claim that the law is arbitrary contrary to the principles of fundamental justice.
They admit they agree with the majority and the trial judge that the law will put some Quebeckers life and "security of person" at risk, but they do not see the matter being resolved by or applicable to the constitution. They state that "it will likely be a rare case where s. 7 will apply in circumstances entirely unrelated to adjudicative or administrative proceedings." However, they claim, this is not one of those times. Instead they lament the over-extension of the constitution.
The dissent then took issue with the evidence used by the majority. They criticized the majority’s cherry-picking of expert testimony that stated that a private system would not affect the public one (of which there was only one expert), while dismissing those that claimed privatizing will not necessarily solve the problem.
The dissent characterize the majority's use of the word "arbitrary" as meaning "unnecessary", to which they claim that if that were true it would require the courts to interfere too much in law makers jobs.
The dissent’s final objection is the majority’s expansion of the reasoning in R. v. Morgentaler. Binnie and LeBel distinguish R. v. Morgentaler from the current case as the former was about "manifest unfairness" and criminal liability, not arbitrariness and public health policy which they claim requires a much different analytical approach.
This ruling would have a direct effect on most provinces that currently have laws that are designed to discourage the private sector, in particular Ontario, Manitoba, British Columbia, Alberta, and Prince Edward Island, which all have legislation very similar to the impugned laws in Quebec.
After the Supreme Court rendered its judgment, the Attorney General of Quebec asked the Court to stay (i.e. suspend) its judgment for 18 months. The Court granted the stay, but only for 12 months; it therefore expired on June 8, 2006.
In August 2005, delegates to the Canadian Medical Association adopted a motion supporting access to private-sector health services and private medical insurance in circumstances where patients cannot obtain timely access to care through the single-payer system.
In November 2005 a Quebec provincial white paper on limited private reforms was leaked to the media. The paper proposed allowing the purchase of private medical insurance. To prevent doctors from abandoning the public system the paper envisions having doctors perform a mandatory minimum quota of work in the public sector before they would be allowed to perform in the private sector.
Due Process - Right to Medical Access - Supreme Court of Canada Holds That Ban on Private Health Insurance Violates Quebec Charter of Human Rights and Freedoms
Dec 01, 2005; DUE PROCESS--RIGHT TO MEDICAL ACCESS--SUPREME COURT OF CANADA HOLDS THAT BAN ON PRIVATE HEALTH INSURANCE VIOLATES QUEBEC CHARTER...