Fate of the Canada Health Act?

9 June 2005

At around 6:45 a.m. here on the Pacific Coast, the Supreme Court of Canada proclaimed that a majority of the justices (after 366 days of deliberations) agreed with appellants, Dr Chaoulli and Mr Zeliotis, that the Government of Quebec was acting contrary to the Quebec charter of rights by denying its citizens the right to purchase private insurance to pay for medical care already provided in the publicly funded system.

Although I invariably gnash my teeth when reading journalism laced with effusive descriptives, I myself just can’t stop using the term “momentous decision” when talking about and now writing about today’s proclamation. The actual written decision is a huge set of eight documents and it will take many months of word-by-word dissection by constitutional experts before it is clear what the full impact will be for the rest of the country. For the time being the feds and the various provincial jurisdictions are being politically circumspect while holding their cards very close to their chests and saying lots of reassuring things about the safety and sanctity of medicare.

However, the next 6 months will be extremely interesting to see which province makes the next challenge (anyone who thinks it might be Alberta please raise your hand). In fact, the Alberta government has been threatening to proclaim the Alberta Health Care Plan for the past year. I suspect they have been waiting for the Supreme Court to announce its expected decision—a decision that would install an insurmountable legal precedent into Canadian constitutional jurisprudence and ensure Alberta’s plan for partial privatization and private coinsurance could not be successfully challenged by Ottawa.

The thing that has me a little mystified is that three of the seven justices voted against the application. I am trying to come to terms with what their reasons might be for supporting a law that was so obviously contrary to the charter. Perhaps one of them will write a “tell all” book about their deliberations. I’m sure there are at least four other Canadians besides me who would be interested in reading it. However, forgetting about the nays for the moment, the comment by Chief Justice Beverley McLachlin and Justice John Major that “Access to a waiting list is not access to health care” is an incisive indictment and should be carved in parliamentary stone.

There are a lot of questions floating around in my head, and I’m sure that if I read this again next spring I’ll wonder why I didn’t see what was coming. However, let’s try a few on:

• What if all the provinces and territories are faced with challenges within a few months? Would any challenge be met with anything other than a white flag?

• Will some of the provinces decide to challenge the Canada Health Act (CHA) themselves rather than be faced with a host of very expensive legal challenges?

• If part of the CHA fails, does the whole Act fail?

• Will the feds quickly revamp the whole Act to try and prevent a complete failure before the challenges happens?

• Will a new CHA be forced by the Chaoulli decision to recognize and include provisions for a parallel private system and private health insurance?

• Will any provincial jurisdiction attempt to stop insurers from selling private health insurance to their citizens, and would the courts even be willing to hear such a case after Chaoulli?

• How can Ottawa penalize provinces for allowing private medical care if there is private health insurance allowed that provides coverage for private medical care in Canada?

All of this is fascinating stuff but I have to finish up quickly because my insurance agent just knocked on the front door.

—JAW