Misdiagnosis or Cure? Charter Review of the Health Care System

Abstract

This paper discusses the potential implications of section 7 of the Canadian Charter in the current health care reform debate, grounding its analysis in the facts and lower-court decisions in Chaoulli v Québec (on appeal to the Supreme Court at the time of publication). Recent health care system reviews have consistently emphasized the importance Canadians place on needs-based, equal and timely access to medically necessary services as a right of citizenship. At the same time, concerns about lengthening wait times in the public system have sparked calls for privatization as a means to enhance individual patient choice and to relieve pressure on the public system. Lower courts have generally been unwilling to consider the scope of publicly funded programs as justiciable under section 7 of the Charter. In the Chaoulli case, the lower courts in broke with this trend by considering whether section 7 rights were violated by Quebec’s ban on private insurance. The Supreme Court of Canada hearing in Chaoulli signals a major turning point for the Charter and for the Canadian health care system. Section 7 has great potential as a tool for generating more open, accountable and participatory decision-making in health care. However, a section 7 analysis runs the risk of focusing on individual autonomy and choice, rather than considering the systemic inadequacies and inequities within the current health care system. Instead of enabling privileged people to opt-out of a public system that benefits all Canadians, the author hopes that the Supreme Court will be sensitive to the equality and security of the person related interests of all health care users.

Keywords: Chaoulli, health care, private, public, health, section 7, human rights, life, liberty, security, accountable, insurance, equality, Charter, Canada