Chaoulli, Critical Theory and Charter Rights

Introduction Since its inception nearly forty years ago, Canada's universal public healthcare system has risen to near-iconic status in the national psyche. Despite growing public concern about healthcare's ability to cope with an increasingly commercialized medical profession, rapid technological developments in diagnostic equipment, and skyrocketing pharmaceutical costs, the single-tier Canadian system had remained virtually sacrosanct in national political debate until quite recently. Politicians understood the explosive potential of a debate on healthcare, (1) and Courts seemed inclined to leave healthcare issues in the political arena. Indeed, with the exception of Eldridge v. B.C., (2) the Supreme Court of Canada [S.C.C] had traditionally been very deferential to legislatures in matters relating to healthcare administration. With this public reverence for healthcare and this history of legal deference in mind, the media firestorm that followed the S.C.C.'s decision in Chaoulli v. Quebec (3) was hardly surprising. The real surprise was the decision itself. Because the Chaoulli decision--which ruled s. 15 of Quebec's Health Insurance Act (4) and s. 11 of its Hospital Insurance Act (5) to be unconstitutional--ultimately hinged on an application of the Quebec Charter of Human Rights and Freedoms, (6) its ultimate impact on healthcare administration in the rest of Canada has yet to be revealed. That said, most of the popular commentary on Chaoulli has addressed itself to the effects the decision will have on the accessibility of medical care to Canadians. (7) Legal academics, conversely, have focused primarily on two issues: first, the extent to which the S.C.C. got it right, and second, how Chaoulli signals a move by the S.C.C. that will ultimately enlarge the scope of Charter (8) jurisprudence. In this first camp, academics have mainly concerned themselves with the propriety of the manner in which the majority disregarded evidence that was pivotal in the decisions of the lower courts--evidence that demonstrated how public healthcare systems deteriorate when parallel private systems are introduced. (9) Scholars in the latter grouping have voiced a more general malaise about the activist impulse evinced by the S.C.C. in this landmark decision. (10) With the exception of two notable articles that I intend to draw upon in this paper, (11) the lacuna in the academic response to Chaoulli has been one of disciplinary introspection. Those whose worry is that the S.C.C. got it wrong assume that the law offers a principled framework of such an exhaustive nature as to allow definitive proclamations of right and wrong, correct and incorrect, if only in law. Their orthodox (12) conception of the law limits their inquiry to asking what the law can tell us about Chaoulli, and not what Chaoulli is telling us about the law. Those who despair that the S.C.C. has transgressed the bounds of its legitimacy, moving from the realm of the legal/adjudicative into the realm of politics/policy, assume that the divide between these abstract categories is objectively determinable, though they may of course differ on where to draw the line. In this paper, I intend to address the introspective gap that exists in the extant legal commentary on Chaoulli by inverting the direction of critical inquiry. Instead of asking what the law tells us about this controversial decision, I will be addressing what this decision can tell us about the law. In doing so, I will use three of the fundamental tenets of Critical Legal Studies [CLS] as both starting points and points of reference. Namely, these tenets are (1) the law is indeterminate, (2) the law is inherently ideological, and (3) the narrow focus of most legal scholarship--on adjudication--has the effect of creating disciplinary blinders which preempt critical inquiries from arriving at a robust understanding of how the law functions to maintain and legitimate existing social institutions and hierarchies. …

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