Chaoulli: Broadening the Charter and the Role of the Court

Discussion over the Supreme Court of Canada’s decision in the Chaoulli case has thus far focused on waiting lists and the threat or promise (depending on your political stripes) of private medicine in Canada.

However, I think it is important to stand back and examine what the Court did in the much larger context of Canadian constitutionalism and government. Prior to the Court’s decision there was no Charter right to health care, now Canadians have one (albeit a very ambiguous one). This has the potential not only for a major broadening of the Charter, but also of the Court’s role in Canadian politics.

Prior to the Court’s decision in Chaoulli, Canadians had very narrow rights in regards to health care. There was a right against administrative red tape in their medical treatment (see Morgentaler) and some very narrow equality claims in how health care was provided (see Anton). In general, however, decisions about how and when patients could access medical services were considered beyond the purview of the Charter and the courts, and solely the responsibility of the democratic legislatures.

This is no longer the case. What the majority did in Chaoulli, more than anything else, was assert that there exists a right to timely access to health care under Section 7 of the Charter. (It is important to note that the constitutional status of this right is still somewhat unclear – while 4 of the 7 judges asserted such a right, only 3 did so explicitly under the Canadian Charter, while 1 judge did so under the Quebec Charter.)

What exactly does a Charter right to timely health care mean? In very general terms it is a right to access medical treatment in a reasonable time. What is reasonable is not yet clear, however it will more than likely be related to the level of risk of death and suffering to patients. Where delays in receiving medical treatment get to the point that a person’s health becomes at substantial risk, then that person has the right to make a claim for quicker treatment. On the other side of the coin, the government has a constitutional obligation to ensure that patients have such timely access to medical treatment.

In the larger context, this right has two important implications. First, as protectors of Charter rights, the courts now have an important role to play in Canadian health policy – one that they did not have before. The courts are now responsible (in part) for deciding what “timely access� means (i.e. what are the standards) and for reviewing the health system to see if it meets those standards. This new role for the courts was heavily criticized by the minority in Chaoulli – who stated that such assessments should remain solely within the responsibility of the legislatures and the democratic process.

Secondly, by asserting a right to timely health care, the majority in Chaoulli has opened up the possibility of a broadening of the Charter into substantial social and economic rights. In Chaoulli, the majority stated that the right to timely access to health care was violated by the Quebec government’s prohibition on private insurance in combination with the existence of waiting lists. In essence, it is the absence of opportunity that has violated the right. Waiting lists, combined with the limits on private medicine, leave very little options open for patients. They are stuck on waiting lists and cannot by-pass them through private care. For the majority, this was the source of the Section 7 violation.

However, will the courts stop there? Take, in example, a situation in which a person is unable to access medical treatment because they cannot pay for it. Timely access to health care is definitely limited in this case - in fact, the person cannot receive medical treatment at all. Further, this would seem to trigger the Section 7 interests of life and security of the person (as the majority has defined them in the Chaoulli). If one cannot access health care at all, then there is a great risk of suffering and death. The courts could then, and with little further justification, extent the right to include situations in which other barriers (besides the absence of opportunity) limit persons’ access to timely medical treatment. This would definately make the Section 7 right to timely access a full-fledged social right.

It is important to realize that such an extension of the Charter was impossible prior to Chaoulli. One could not make arguments about extending the Section 7 right to include situations such inability to pay without the court recognizing a right to timely access in the first place.

We can even take this point further. Lets say, for argument sake, that the court extends the Section 7 right to include situations in which persons cannot pay for medical treatment. One may argue that this does not foreclose the possibility of more private medicine in Canada’s health care system. As long as governments maintained a public system to catch those that cannot pay, the Charter obligation is fulfilled. However, any constitutional duty on the part of the government will have to be carried out in a manner that is consistent with the right to equality under Section 15 of the Charter. Hence, if a parallel private health system were allowed under government legislation, the quality of service under the public system would have to be relatively equal to the private system. Otherwise, persons in the public system could assert that they were being discriminated against on the grounds of wealth/income. Those with less money are forced into an inferior public system, while those with more money enjoy a superior level of quality in the private system. This possibility begs the practical question of why the government would even allow a parallel private system in the first place, as it would be forced to ensure that its public system was of equal quality, but would have fewer persons paying into that system.

Again, this sort of Charter analysis only gets off the ground because the Court has now recognized a Charter right to timely access to health care.

In the end, we could see a very interesting event – the enshrinement of the five principles of the Canada Health Act in the Canadian Constitution. Section 7 of the Charter will guarantee a right to access health care (regardless of barriers such as an inability to pay), while Section 15 of the Charter will guarantee a right to equal health care for all. Moreover, it was not accomplished by the legislatures, but by the courts; and not through constitutional amendment, but through Charter interpretation.

And all of this is only possible because the Supreme Court of Canada has recognized a right to health care, and in doing so, has taken the first step in openning the door to a new kind of Charter analysis and a new role for itself.