Status Quo vs. Charter Rights

On 9 June 2005, the Canadian Supreme Court ruled on the Chaoulli v. Quebec (Attorney General) case, which Jacques Chaoulli spearheaded–a physician whose efforts to offer private health care Quebec law frustrated. Chaoulli complained that provincial laws preventing private healthcare violated patients’ rights to life by putting them on wait lists on which they could die before receiving treatment.

The court ruled in Chaoulli’s favour, acknowledging that the wait lists characterizing Quebec’s healthcare system effective rationed life in violation of the provincial Charter of Human Rights and Freedoms. This charter–the province’s statutory, yet, quasi-constitutional declaration of rights–states that, “Every human begin has a right to life, and to personal security, inviolability, and freedom.” Canada’s constitutional Charter of Rights and Freedoms uses similar language, declaring that, “Everyone has a right to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Despite the near-identical language of these proclamations, the Supreme Court of Canada ultimately found that laws prohibiting private health insurance only violated Quebec’s charter. While it made this ruling on a 4-3 split, the question about the Canadian Charter of Rights and Freedoms and its ramifications for bans on private healthcare divided the bench (and Justice Marie Deschamps refused to decide on the matter).

The court correctly recognized that enforcing a state monopoly on healthcare constituted an abridgment of life rights. If state healthcare could address every health woe immediately and effectively, this would not be the case. However, in Canada, government often fails to deal with healthissues that private institution could resolve.

According to the Fraser Institute, the average wait time for surgical and other therapeutic treatments in Canada was 18.2 weeks in 2013, up from 17.7 weeks in 2012. Patients in across Atlantic Canada wait even longer than this on average: 23.7 weeks in Newfoundland and Labrador, 25.8 weeks in Nova Scotia, 31.9 weeks in New Brunswick, and a shocking 40.1 weeks in Prince Edward Island.
As Justice Deschamps stated, wait times effectively ration healthcare. If patients did not leave these lists, they would continue to grow; lists exist only because more people add their names to them at any given time than can be treated at capacity. Nevertheless, wait times afford government the ability to ration care, both by deterring patients from seeking it and leaving them to die before treatment (although this is not, of course, the intention).

By using state power to prevent patients from seeking, and providing, potentially life-saving treatments outside of government’s confines, Ottawa breaches Canadian citizens’ right to life. While Chaoulli v. Quebec constituted a positive step for human rights in Canada, judges, politicians, and citizens should acknowledge that healthcare systems in every province violate the Canadian Charter of Rights and Freedoms, just as Quebec’s system violated its provincial charter. From this understanding, they will have to decide between the status quo of Canadian health care and the rights enumerated in the charter.

Michael Sullivan is a 2013-2014 Atlantic Institute for Market Studies’ Student Fellow. The views expressed are the opinion of the author and not necessarily the Institute

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