Quality v. equality: the divided court in Chaoulli v. Quebec.

I. Introduction On June 9, 2005, the Supreme Court of Canada issued its anxiously awaited decision in Chaoulli v. Quebec. (1) The legal issue before the Court was whether Quebec legislation prohibiting private insurance for physician and hospital services provided by the publicly funded system contravened the Canadian Charter of Rights and Freedoms (2) and/or the Quebec Charter of Human Rights and Freedoms. (3) The Court divided on this question, rendering three separate decisions. The majority of the Court found that the legislative provisions unjustifiably infringed rights protected by the Quebec Charter; consequently, the provisions were struck down. Additionally, six of the seven judges were evenly split on whether the impugned legislation contravened the Canadian Charter. (4) In deciding on the legal question before it, the Court was performing an act of great moment that, unavoidably, would have ramifications in an ongoing public policy drama. Canadian society has been divided on the policy issue intersected by this legal decision, and quite passionately. It has powerful symbolic and dramatic elements of near epic proportions. Fundamental connected the publicly funded health system--and indeed the delicate, precarious and ambiguous balance of hitherto constitutive of Canadian society--were engaged and at stake. The Court was well aware of the stakes in the broader policy drama, and aware of the thorny ancillary issues raised by this case concerning the proper role of the Court in a democratic society vis-a-vis, and in deference to, the role of the legislature and the executive. Yet, as Chief Justice McLachlin and Justice Major (Bastarache J. concurring) noted, the mere fact that the legal question have policy ramifications does not permit the Court to avoid answering it. (5) In discussing the role played by the judicial vis-a-vis the legislative branch, Justice Deschamps approvingly quotes legal scholar K. Roach: Judges can add value societal debates about justice by listening claims of injustice and by and that may not otherwise be taken seriously in the legislative process. (6) Whether judges should be promoting and perspectives at all--and if they should, which or whose and perspectives--is debatable of course. (7) That judges do promote values and perspectives is a less controversial proposition; at the very least, they reflect or exhibit them. We believe that, in this latter sense, the division in the Court mirrors values and perspectives that have been in tension in Canadian health policy, and more broadly in Canadian society. Using the division in the Court clarify this tension can indeed add value the social debate about health policy, albeit not quite in the way intended by K. Roach. We argue that the division in the Court about the application of the Quebec and Canadian Charters was significantly rooted in a subordinate division about the purpose behind the impugned legislation. The determination of the legislation's purpose or objective was an essential element of the legal analysis. In order establish that the Canadian Charter right (s.7) had been infringed it was necessary determine that the measures in the Quebec legislation were not arbitrary. For the three judges in the majority, the measures would be arbitrary if they were not rationally connected the purpose sought be achieved and for the three in the minority, they would be arbitrary if the measures bore no relation the purpose sought be achieved. Once it had been established that the legislation infringed guaranteed rights then the legislation could only be 'saved' under the Quebec Charter or found be constitutional under the Canadian Charter if the government could show that the legislation had a pressing and substantial objective or purpose and used means that were rationally connected meeting that objective. …

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