The Health Policy Experts on the SCC

Several points about the Supreme Court of Canada decision on health care.

First the media did an absolutely dreadful job of reporting its actual contents. The majority ruling found that the restrictions violated the Quebec Charter. However, one member of the majority refused to offer an opinion on whether it violated the Canadian Charter so the ruling was evenly divided, and therefore no constitutional decision was rendered. The Quebec Charter is not constitutional but an ordinary piece of legislation. Thus Quebec’s decision to abide by the ruling is entirely discretionary. While the Quebec Charter does have an override clause (s. 52), the reality is that any Quebec government is free to legislatively overturn any Quebec Charter decision it doesn’t like. The constraints are political not legal. Virtually all the reporting was seriously confused about this. And this is an issue that belongs in the realm of politics, not constitutional rights.

It follows therefore that one cannot use the notwithstanding clause in the Canadian Charter yet, as there is no ruling to actually override. You could have been easily confused about this, for example, by stories such as this one. This case, however, does tell us why should retain s. 33 and recognize that someday it will be necessary to use it. Courts can behave in truly appalling ways.

This brings us to the politics of the matter. On the issues raised by two-tier health care I won’t comment except to note there was an excellent column on this subject in the Star by Thomas Walkom. I do suspect the age and class position of the judges in the majority influenced their rulings. They are older and hence vulnerable to illness, and no doubt would like the right to use their money to buy leverage in the system. Why shouldn't wealthy judges have it both ways: accessing tax-supported health care when it suits them and paying their way to the front of the line when it doesn't.

Some who were encouraged by the ruling, such as Mike Harris, suggest there would be more lawsuits don’t realize that the Court is not likely to rule this way again. Two judges now on the court, Rosalie Abella and Louise Charron, did not participate as they did not hear the original case. I am not sure about Charron, but I am confident that Abella will not support the majority position if she gets. Two of the judges in the majority, John Major and Beverly McLachlin are Mulroney era appointees with Major slated to retire next year, so the majority is almost certain to be overturned with his replacement.

In the end it is public support for the current system, and that remains strong, which will determine its fate.