Appeal accepted

A Supreme Court of Canada press release says Chaoulli's appeal has been allowed, but reasons for judgment have not been released yet.

Update: full text of the judgment here. McLachlin, Major and Bastarache all ruled that the prohibition on purchasing private health care was not rationally connected to the goal of maintaining a public system, while Deschamps ruled that there was such a connection but that the ban was a disproprtionate means of attaining that goal. Justices Fish, Binnie and LeBel would have upheld the ban.

I'll need a lot more time to review the whole text, but here's the money quote from the headnote for McLachlin and Major's decision:

The evidence in this case shows that delays in the public health care system are widespread, and that, in some serious cases, patients die as a result of waiting lists for public health care. The evidence also demonstrates that the prohibition against private health insurance and its consequence of denying people vital health care result in physical and psychological suffering that meets a threshold test of seriousness.

Where lack of timely health care can result in death, the s. 7 protection of life is engaged; where it can result in serious psychological and physical suffering, the s. 7 protection of security of the person is triggered. In this case, the government has prohibited private health insurance that would permit ordinary Quebeckers to access private health care while failing to deliver health care in a reasonable manner, thereby increasing the risk of complications and death. In so doing, it has interfered with the interests protected by s. 7 of the Canadian Charter.
[...]
...Here, the evidence on the experience of other western democracies with public health care systems that permit access to private health care refutes the government’s theory that a prohibition on private health insurance is connected to maintaining quality public health care. It does not appear that private participation leads to the eventual demise of public health care.

The breach of s. 7 is not justified under s. 1 of the Canadian Charter. The government undeniably has an interest in protecting the public health regime but, given that the evidence falls short of demonstrating that the prohibition on private health insurance protects the public health care system, a rational connection between the prohibition on private health insurance and the legislative objective is not made out. In addition, on the evidence, the prohibition goes further than would be necessary to protect the public system and is thus not minimally impairing. Finally, the benefits of the prohibition do not outweigh its deleterious effects. The physical and psychological suffering and risk of death that may result from the prohibition on private health insurance outweigh whatever benefit – and none has been demonstrated here – there may be to the system as a whole.

Sit back and watch the political earthquake, folks. This time, for once, it will be the Canadian left complaining about "judicial activism". (Needless to say, I'm eating my words from earlier this morning.)

Update II: the other big difference between the ruling of Mr. Justice Deschamps, and the concurring opinion of McLachlin, Major and Bastarache, is that Deschamps based her ruling on Quebec's Charter of human rights and freedoms, while the others went further and said the Canadian Charter of Rights and Freedoms was violated. But three judges did not agree with the latter finding, which means a similar outcome for other provinces is not a slam dunk.

Posted by damian at June 9, 2005 11:31 AM | TrackBack