Canada Free Press -- ARCHIVES

Because without America, there is no free world.

Return to Canada Free Press

Cover Story

Supreme Court said what politicians won't say

by arthur Weinreb, associate Editor,
Saturday, June 11, 2005

Toronto, ON-- a fairly common criticism of Canadian courts, especially the Supreme Court of Canada, is that they are playing too much of an activist role in our society. We have reached a stage where many decisions that years ago would have been made by the elected representatives of the people are now being decided by the courts.

Recent examples of this are the decisions that legalized same sex marriage. The fact that this was decided by the courts was not the courts' fault. although judges can be criticized for the decisions that they make, they are not responsible for what cases come before them. Parliament seems all too happy to do nothing in some instances and let the courts decide some of the more important and controversial issues of the day.

Even if people believe that the courts should play less of an activist role than they currently do, this does not mean that the courts are necessarily wrong in the decisions that they make. The recent case concerning private health insurance in the province of Quebec is a good illustration of the Supreme Court of Canada stating the obvious while politicians continually deny the reality of Canada's health care system.

In the decision of Chaoulli v. Quebec (attorney General) that was handed down on Thursday by the Supreme Court of Canada, the court found that Quebec laws that prohibit the purchase of insurance to cover private medical treatment violated the Quebec Charter and the Canadian Charter of Rights and Freedoms.

The majority of the court found that waiting times in the public system violated the Quebec Charter of Rights. While it was not necessary to decide, three of the justices found that the Quebec law violates section 7 of the Canadian Charter of Rights that guarantees the right to life, liberty and security of the person. The court held that delays in the public health system led to prolonged pain and suffering, deteriorating medical conditions and in some cases, death. In coming to this conclusion in what will inevitably be to the dismay of those on the political left, the Supreme Court followed its 1998 decision in R. v. Morgentaler that held that delays encountered by women seeking abortions breached section 7 of the Canadian Charter of Rights and Freedoms.

The interesting aspect of the Chaoulli decision, and the one that most deviated from what politicians of all political parties have been spewing for years was the finding that this breach of a charter right was not reasonable. The court found that while the preservation of a publicly funded health care system was a substantive and legitimate government objective, the outright ban on private health care insurance had no rational connection to saving the public system and went further than was necessary to meet that objective. In the majority's opinion, the government of Quebec failed to show that allowing Quebeckers to purchase insurance for private health care would destroy Canada's public health care system. In reaching this conclusion the court examined other countries in the OECD such as Sweden and the U.K. that have strong public health care systems despite allowing private parallel health care services.

This finding is at odds with what the politicians have been saying for years; that not only will allowing private medical services destroy our health care system; it will destroy Canada as we know it. The entire fabric of our society will disappear. We are constantly being told that our health care system is what defines us as a country. allow someone to actually pay for what is now a public service and we will be no different than the United States.

The reality is that in Quebec case had nothing directly to do with paying for private health care. People can pay for that now. Those with money can purchase medical services and not have to resort to the public system. The Supreme Court decision only impacts those who cannot pay for expensive medical treatment but who are willing and able to purchase insurance for such treatment.

Quebec can avoid the Supreme Court of Canada's decision by simply keeping the legislation and resorting to the notwithstanding clause in the constitution. Those Canadians who recoiled in horror at the mere mention of the use of the notwithstanding clause to override court decisions that allow same sex marriage, are now begging Quebec and other clauses to invoke that draconian measure.

The Supreme Court of Canada was right — the public system as we know it will not end. But hopefully Chaoulli will mark the beginning of the end to all the political spin where the reality of the existence private medical care is denied. Perhaps it will also mark an end to this notion that it is better to allow people to suffer and die than it is to allow them to have access to private treatment.


Pursuant to Title 17 U.S.C. 107, other copyrighted work is provided for educational purposes, research, critical comment, or debate without profit or payment. If you wish to use copyrighted material from this site for your own purposes beyond the 'fair use' exception, you must obtain permission from the copyright owner. Views are those of authors and not necessarily those of Canada Free Press. Content is Copyright 1997-2018 the individual authors. Site Copyright 1997-2018 Canada Free Press.Com Privacy Statement