In Chaoulli v. Quebec, the Appellant Zeliotis was a patient who had not been able to acquire publicly funded medical care in a timely fashion, while the Appellant Chaoulli was a doctor willing and able to provide medical care outside of the public system. The Appellants challenged two pieces of Quebec legislation, s. 15 of the Health Insurance Act and s. 11 of the Hospital Insurance Act, as being inconsistent with s. 1 of the Quebec Charter of Human Rights and Freedoms and s. 7 of the Charter of Rights and Freedoms.
In a complex and divided decision, the majority of the Supreme Court of Canada found that the relevant pieces of legislation infringed upon the Quebec Charter and were therefore unconstitutional in that province. The majority opinion in that regard was penned by Justice Deschamps.
Chief Justice McLachlin and Justices Major and Bastarache concurred in this decision and went further, stating that an outright ban ban on private medical care was inconsistent with the right to security of the person protected by s. 7 of the Charter of Rights and Freedoms and therefore unconstitutional throughout Canada:
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.
This line of reasoning stands for the proposition that even politically untouchable policies such as “universal” health care cannot stand in the way of an individual’s right to struggle for his or her own life or health using his or her own resources. In a sense, three Justices of the Supreme Court of Canada took Section 7 to its just and logical conclusion and protected individual rights where politics prevented Parliament from doing so. In a perfect world, this kind of decision is what the Charter guarantee of individual rights is all about.
Sadly, with Justice Deschamps taking a more cautious position limited to the province of Quebec, and three other justices voting to uphold the legislation in question, the Chaoulli precedent is binding only on the Quebec health care system. Nevertheless, it is a step in the right direction for the fundamental individual right to struggle for one’s own life or health, even in the face of majority opposition and political scare tactics.
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