Canadian Constitution
Part II
Week F-Social and Economic Rights
February 25
Less possible to make a claim in solving an expertise
When courts make a decision they work well in their expertise/procedure/comfort zone
Judicial capacity is about the structure of the judicial system
Is this structure adequate to decide issues that move away from what judges think about ?
Today we’ll talk about: Health care policy
Chaoulli Case (2005)
About a retired dentist named Zeliotis and a physician named Chaoulli
Zeliotis: his position is important. He needed a hip replacement.
It takes 18 months to replace hip in Quebec (QC) public health system
Getting one privately is illegal
Physicians can opt-out of the QC healthcare system (HC)
But very few do it
They only do it in cosmetic/plastic surgery branch because wealthy people use those services
QC HC Act made it illegal for private insurance companies to cover for services offered in the QC HC services
So Zeliotis couldn’t even get an insurance from private companies either
He had no choice but to wait 18 months to get his hip
Compared to Chaoulli, Zeliotis’ motivations were pragmatic
Chaoulli’s motivation was more ideological
He came from France to QC and found himself constrained by the system and complained about it
He was libertarian: government has nothing to do with the way I want to practice and the freedom of contract between the physician and the patient; no interference by the system
Both Chaoulli (C) and Zeliotis (Z) said their rights under s. 7 were infringed
Chaoulli made a LIBERTY claim while Zeliotis made a SECURITY of the person argument due to physical an inevitably psychological pain (reminder of the Morgentaler case)
Is QC’s public monopoly over provision of HC services constitutional under s.7?
Both C and Z lost at the public level and at the court of appeal. Reason (and the QC government’s argument which won at trials): if you allow a private system to develop in parallel, resources from the public will be drained by the private which will decrease the quality of the public HC system. A “social benefits” decision was taken.
It took 12 months to decide the case. Meantime: 2 reports on the state of the Canadian healthcare system were presented
1. Romanow Report:
Existing regime of HC is sound
Defense of the status quo
2. Kirby Report (offered simultaneously):
Evidence in other jurisdiction that public and private service can function together (example: Sweden, Germany, other European countries)
Court produces a decision. 7 justices produce 3 different decisions:
1 (Deschamps): QC’s prohibition of private HC insurance is a violation of the QC Charter of rights and freedoms
3 Justices led by Chief Justice McLachlin : It’s also a violation of s.7 of the Canadian Constitution
Those 4 judges were for the Kirby report
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