Historically, the Supreme Court of Canada has avoided direct intervention in health care policy-making. This posture changed dramatically with the release of the Chaoulli decision in June 2005. In a narrow four-to-three decision, the Supreme Court struck down Quebec laws prohibiting the sale of private health insurance on the basis that they violate Quebec?s Charter of Human Rights and Freedoms. Three of the four judges in the majority also found the provisions violate section seven of the Canadian Charter of Rights and Freedoms. In a blistering dissent however, the three judges in the minority found that the insurance restriction violated neither the Quebec nor the Canadian charters. The result makes further Charter challenges to similar laws in other provinces inevitable, but the question of whether they will or should succeed remains contested.

In September 2005, a conference was convened at the University of Toronto to discuss the legal implications of the Chaoulli decision. Some of the top Canadian scholars in the fields of health law and health policy were brought together to exchange ideas and to chart the potential legal course for Canada in the decision?s wake. Access to Care, Access to Justice contains all the papers given at this conference.

Edited by Colleen Flood, Lorne Sossin, and Kent Roach, the collection explores the role that courts may begin to play in health care and how this new role is of crucial importance to the Canadian public and their governments. As litigators for those who favour more freedom to provide private health care and aggrieved patients marshal their legal resources, provinces across the country are considering their options. Some are seeking guidance on how to better insulate themselves from review; others may welcome such challenges as a way to revisit the provisions of the Canada Health Act. The contributors to Access to Care, Access to Justice examine how the future of Canadian health care is likely to be determined both in the courts and in the legislatures and scrutinize how these changes will affect Canadians.

Colleen Flood is a Canada Research Chair in health law and policy in the Faculty of Law and the Department of Health Policy, Management and Evaluation at the University of Toronto.

Lorne Sossin is an associate professor in the Faculty of Law at the University of Toronto.

Kent Roach is Professor in the Faculty of Law at the University of Toronto.

Table of Contents

Preface by The Honourable Roy J. Romanow

Acknowledgments

List of Contributors

Introduction: Kent Roach, Colleen M. Flood and Lorne Sossin

What Did the Court Decide in Chaoulli?

Peter H. Russell, ‘Chaoulli: The Political versus the Legal Life of a Judicial Decision’

Bernard M. Dickens, ‘The Chaoulli Decision: Less than Meets the Eye – or More?’

Jean-Francois Gaudreault-Desbiens and Charles-Maxime Panaccio, ‘Chaoulli and Quebec’s Charter of Human Rights and Freedoms: The Ambiguities of Distinctness’

Lorraine Weinrib, ‘Charter Perspectives on Chaoulli – The Body and the Body Politic’

Chaoulli and the Proper Role of the Courts in a Democracy

Sujit Choudhry, ‘Worse than Lochner?’

Allan Hutchinson, ‘Condition Critical: The Constitution and Health Care’
 
Andrew Petter, ‘Wealthcare: The Politics of the Charter Re-visited’

Christopher P. Manfredi, ‘Déjà vu All Over Again: Chaoulli and the Limits of Judicial Policy-making’

Chaoulli and Prospects for Increased Access to Justice and Care

Lorne Sossin, ‘Towards a Two-Tier Constitution? The Poverty of Health Rights’

Kent Roach, ‘The Courts and Medicare: Too Much or Too Little Judicial Activism?’

Evidence in the Chaoulli Case

Hamish Stewart, ‘Implications of Chaoulli for Fact Finding in Constitutional Cases’

Morris Barer, ‘Experts and Evidence: New Challenges in Knowledge Translation’

Charles J. Wright, ‘Different Interpretations of ‘Evidence’ and Implications for the Canadian Healthcare System

Comparative Evidence About Private Health Insurance

Alan Maynard, ‘How to defend a public health care system: lessons from abroad’

André den Exter, ‘Blending Private and Social Health Insurance in the Netherlands: Challenges Posed by the EU’

16) Stefan Greß, ‘The Role of Private Health Insurance in Social Health Insurance Countries – Implications for Canada’

Colleen M. Flood, Mark Stabile and Sasha Kontic, ‘Finding Health Policy ‘Arbitrary’: The Evidence on Waiting, Dying, and Two-Tier Systems’

The Implications of Private Insurance

Trudo Lemmens and Tom Archibald, ‘The CMA’s Chaoulli Motion and the Myth of Promoting Fair Access to Health Care’

Robert G. Evans, ‘Preserving Privilege, Promoting Profit: The Payoffs from Private Health Insurance’

Tracey Epps and David Schneiderman, ‘Opening Medicare to Our Neighbours or Closing the Door on a Public System? International Trade Law Implications of Chaoulli v. Quebec’

Possible Governmental Responses to Chaoulli

Claude E. Forget, ‘Promises, Promise – Setting Boundaries Between Public and Private’

Timothy Caulfield and Nola Ries, ‘Politics and Paradoxes: Chaoulli and the Alberta Reaction’

Greg Marchildon, ‘Private Insurance for Medicare: Policy History and Trajectory in the Four Western Provinces’

T. Sullivan, A. Greenberg, C. Sawka, A. Hudson, ‘ A Just Measure of Patience: Managing access to cancer services after Chaoulli’

Caroline Pitfield and Colleen M. Flood, ‘Section 7 “Safety Valves”: Appealing Wait Times Within a One-Tier System’

Chaoulli and the Future of Medicare

Stanley Hartt, ‘Arbitrariness, Randomness and the Principles of Fundamental Justice’

Roy Romanow, ‘In Search of a Mandate?’

Appendix A: The Quebec Superior Court Decision

Appendix B: The Quebec Court of Appeal Decision

Appendix C: The Supreme Court of Canada Decision