Essay On Chaoulli Case

In the Supreme Court of Canada’s decision on Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, 2005 SCC 35, the highest level of court in Canada ruled that Quebec Health Insurance Act and the Hospital Insurance Act violated the Quebec Charter. Court also found that Acts violated Section 1 of Quebec Charter in 4 to 3 decision which states that “every human being has a right to life, and to personal security, inviolability and freedom.” But Judge Deschamps did not found that Acts violated Section 7 of the Canadian Charter of Rights of Freedom, therefore leaving the decision on 3 to 3 ties. Chaoulli decision was only applied to Quebec and was not applied to rest of the provinces. Chaoulli case is regarded as the “most significant Canadian

case vis-à-vis health care rights (case)” (Flood and Xavier, 618). The current era of globalization and the widespread of information that can be obtained at the end of every Canadians’ fingertips force Supreme Court of Canada to use precise facts and various social facts to adjudge cases that affect the public policy of the government.

Contrary to the dissent opinion from three other judges, as the justice Deschamps write the majority opinion, she emphasizes and encourages the use of social facts in the court to make a superior judgment that can change Canadian’s lifestyle. Both the majority and the dissent opinion often cite each other’s and argue that their own interpretation is correct on multiple occasions. For example, both sides argue about R. v. Morgentaler [1988] 1 S.C.R. 30 and how it can be referenced in the Chaoulli case. While the majority argued that due to the “consequences of delays, that the procedure then provided for in s. 251 of the Criminal Code, R.S.C. 1970, c. C‑34, jeopardized the right to security of the person” (Chaoulli v. Quebec, para 43). The dissent argued that Morgentaler case was “involved criminal liability, not public health policy” (Chaoulli v. Quebec, para 167) and continue to say that “The proper forum to determine the social policy of Quebec in this matter is the National Assembly” (Chaoulli v. Quebec,

para 167). Even with the same reference case, both sides have different opinions about it and argue whether that the case is relevant or not. The Judge Deschamps as well as McLachlin, Major, and Bastarache J. argue that even if the case is related to the social policy that legislature often decide, the court should have a final say in the decision and decide whether it is constitutional or not. While Judge Binnie, LeBel, and Fish explicitly say that it should be up to the legislature to decide the matter on social policy. So which way is the leaning towards? Donald Horowitz, law professor at the Duke University mention that “while judges have traditionally determined facts as they have occurred within the relationship between the parties (historical facts), much litigation involving policy requires judges to find facts relating to recurrent patterns of behavior on which policy is to be based (social facts)” (Horowitz, 45). Horowitz emphasizes that by involving many litigations, it is inevitable for the court to try to understand the data that are given to them and the social trend.
This monument decision in the Canadian health care policy history not only sparked an argument in the case itself but if the court should be allowed to use data, even when these data are controversial or inconsistent. Canadian political scientist, Peter Russell argued:
“that ‘the environment’ surrounding Canada’s judicial system, consisting of social and economic development, dominant currents of political philosophy and ideology, and legal culture, both supported the powers and functions of the judicial branch and created pressures for change in the judicial system.” (Hausegger, Riddell, and Hennigar 2015, 93).
It’s not just Russell that supports the policy-making model of the court though, “many law professors support an expanded policy-making role of the court” (Hausegger, Riddell, and Hennigar 2015, 93). So why is it controversial for the court to transition to the policy-making model that included including social facts inside the court? Colleen Flood, a law professor at the University of Toronto argue that
“in some cases, involving complex social policies, the Supreme Court has shown flexibility in the standard of evidence required. In these cases, the Court has deemed the relevant question to be whether the government has a 'reasonable basis' for its policy choices. While this standard does not require definitive, scientific proof, an absence of evidence is also unacceptable - the government must have a factual basis for its decisions” (Flood 2010, 414)
She mentions that court is simply not consistent and often the decisions to accept the data given by litigants or not is simply unclear. This is especially true in the Chaoulli case when the Justice Deschamps says, “the human reactions described by the experts, many of whom came from outside Quebec, do not appear to me to be very convincing, particularly in the context of Quebec legislation” (Chaoulli v. Quebec, para 66) as she rejects the group of Canadian exports. Author Jeff King argue that “this is a very problematic way to handle expert evidence” (King 2012, 241) But on the other hand, judge Deschamps allows foreign countries’ data as the judge referenced that “Canada is the only OECD country to prohibit insurance for health care provided by non‑participating physicians” (Chaoulli v. Quebec, para 77). So, should the judges list social facts as their reasoning for their judgment? King mentions that “since social facts already form part of judicial reasoning … (should judges rely on) their own assumptions or actual data? It is for this very reason that Davis encouraged the use of Brandeis briefs and social science evidence” (King 2012, 243). Brandis briefs are “a brief, usually an appellate brief, that utilizes economic, sociological, or other scientific and statistical evidence in addition to legal principle when presenting arguments in a case” (Webster's New World Law Dictionary. 2010). King focus that judges should not be swayed by their personal emotions and not make any assumptions on social facts. But, use facts and data that is given to the court to decide. While the majority and the concurrence emphasize how other countries in The Organization for Economic Co-operation and Development (OECD) run their health care system, dissent opinion fact check the concurrence’s data on the
“public funding in (United States) accounts for only 45 percent of total health care spending. But if we look at the practical reality of the U.S. system, the fact is that 15.6 percent of the American population (i.e., about 45 million people) had no health insurance coverage at all in 2003, including about 8.4 million children … For 45 million Americans, as for those “ordinary” Quebeckers who cannot afford private medical insurance or cannot obtain it because they are deemed to be “bad risks”, it is a matter of public health care or no care at all” (Chaoulli v. Quebec, para 175)
This reinforces the idea that court sometimes doesn’t have the capacity to fully fact check the data that are given to the court. This is extremely risky, if the judges decide on solely on false data, it can only make the court not only destroy court’s credibility but also make them unreliable.
Supreme Court of Canada’s decision is often permeant or is permeant until the subject is challenged after many years later.

Because Supreme Court judges are also human, is it acceptable for court to rule in the matter of public policy that should be frequently appealed and changed in the need of the society? The decision on the Chaoulli case shocked the nation. President of the Canadian Medical Association called the decision “historic and the court has agreed with our fundamental position that Canadians have the right to timely access to health services” and mentioned that “this is the end of Medicare as we know it” (Eggertson 2005, 139). But ten years later, Quebecers are “still waiting for meaningful change” (Labrie 2015). Labrie blame the government as “government chose to interpret the Supreme Court ruling narrowly, and as a consequence, the timid reforms adopted have not led to improved access to hip, knee and cataract surgeries. Patients waiting for treatment today still have very few options outside the public system.” (Labrie 2015). Because the court decided on the public policy without sufficient amount of talk with the government, the policy has been left hang to dry. This shows the risk of the court making the public policy decision, it might not matter after all if the government does not create any meaningful legislation. But Chaoulli cased also created a domino effect for Canadian citizens in other provinces to challenge their own provinces’ policy on the

private health care. Most notably, Dr. Brian Day's Cambie Surgery Centre challenged the government to allow private health insurance and to allow doctors to charge patients privately. This case is currently at the trial level, expected to go all the way to Supreme Court. This can possibly be another issue of making a public policy decision that doesn’t swing to one or the other side completely. It gives room for another lawsuit that cost taxpayer’s money.
The landmark case of Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, 2005 SCC 35 from the Supreme Court of Canada gave real-life examples of how carefully social facts should be used in the court. The Judge Deschamps’s decision to rule in favor of plaintiff that Quebec Health Insurance Act and the Hospital Insurance Act violated the Quebec Charter but not the Canadian Charter of Rights and Freedom, left the decision in a deadlock for other provinces in the Canada. Using the social facts is inevitable for the court in the era where everyone is connected to each other. But, the court must be able to use social facts responsibly and only apply the facts so that judgments on public policy is fair and justifiable.