Chaoulli v. Quebec (Attorney General)

Chaoulli v. Quebec (Attorney General)
Collection
Supreme Court Judgments
Date
2005-06-09
Neutral citation
2005 SCC 35
Report
[2005] 1 SCR 791
Case number
29272
Judges
McLachlin, Beverley; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 29272
Decision Content
SUPREME COURT OF CANADA
Citation: Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, 2005 SCC 35
Date: 20050609
Docket: 29272
Between:
Jacques Chaoulli and George Zeliotis
Appellants
v.
Attorney General of Quebec and Attorney General of Canada
Respondents
‑ and ‑
Attorney General of Ontario, Attorney General of
New Brunswick, Attorney General for Saskatchewan, Augustin
Roy, Senator Michael Kirby, Senator Marjory Lebreton,
Senator Catherine Callbeck, Senator Joan Cook, Senator Jane
Cordy, Senator Joyce Fairbairn, Senator Wilbert Keon,
Senator Lucie Pépin, Senator Brenda Robertson and Senator
Douglas Roche, Canadian Medical Association and Canadian
Orthopaedic Association, Canadian Labour Congress, Charter
Committee on Poverty Issues and Canadian Health Coalition,
Cambie Surgeries Corp., False Creek Surgical Centre Inc.,
Delbrook Surgical Centre Inc., Okanagan Plastic Surgery
Centre Inc., Specialty MRI Clinics Inc., Fraser Valley MRI
Ltd., Image One MRI Clinic Inc., McCallum Surgical Centre
Ltd., 4111044 Canada Inc., South Fraser Surgical Centre Inc.,
Victoria Surgery Ltd., Kamloops Surgery Centre Ltd., Valley
Cosmetic Surgery Associates Inc., Surgical Centres Inc.,
British Columbia Orthopaedic Association and British Columbia
Anesthesiologists Society
Interveners
Official English Translation: Reasons of Deschamps J.
Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.
Reasons for Judgment:
(paras. 1 to 101)
Joint reasons concurring in the result:
(paras. 102 to 160)
Joint dissenting reasons:
(paras. 161 to 279)
Deschamps J.
McLachlin C.J. and Major J. (Bastarache J. concurring)
Binnie and LeBel JJ. (Fish J. concurring)
______________________________
Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, 2005 SCC 35
Jacques Chaoulli and George Zeliotis Appellants
v.
Attorney General of Quebec and Attorney General of Canada Respondents
and
Attorney General of Ontario, Attorney General of
New Brunswick, Attorney General for Saskatchewan,
Augustin Roy, Senator Michael Kirby, Senator Marjory Lebreton,
Senator Catherine Callbeck, Senator Joan Cook, Senator Jane Cordy,
Senator Joyce Fairbairn, Senator Wilbert Keon, Senator Lucie Pépin,
Senator Brenda Robertson and Senator Douglas Roche, Canadian
Medical Association and Canadian Orthopaedic Association,
Canadian Labour Congress, Charter Committee on Poverty Issues
and Canadian Health Coalition, Cambie Surgeries Corp., False
Creek Surgical Centre Inc., Delbrook Surgical Centre Inc.,
Okanagan Plastic Surgery Centre Inc., Specialty MRI Clinics Inc.,
Fraser Valley MRI Ltd., Image One MRI Clinic Inc., McCallum
Surgical Centre Ltd., 4111044 Canada Inc., South Fraser Surgical
Centre Inc., Victoria Surgery Ltd., Kamloops Surgery Centre Ltd.,
Valley Cosmetic Surgery Associates Inc., Surgical Centres Inc.,
British Columbia Orthopaedic Association and British Columbia
Anesthesiologists Society Interveners
Indexed as: Chaoulli v. Quebec (Attorney General)
Neutral citation: 2005 SCC 35.
File No.: 29272.
2004: June 8; 2005: June 9.*
Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.
on appeal from the court of appeal for quebec
Human rights — Right to life and to personal inviolability — Waiting times in public health system — Provincial legislation prohibiting Quebec residents from taking out insurance to obtain in private sector health care services already available under Quebec’s public health care plan — Prohibition depriving Quebec residents of access to private health care services not coming with waiting times inherent in public system — Whether prohibition infringing rights to life and to personal inviolability guaranteed by s. 1 of Charter of Human Rights and Freedoms — If so, whether infringement can be justified under s. 9.1 of Charter — Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 1, 9.1 — Health Insurance Act, R.S.Q., c. A‑29, s. 15 — Hospital Insurance Act, R.S.Q., c. A‑28, s. 11.
Constitutional law — Charter of Rights — Right to life, liberty and security of person — Fundamental justice — Waiting times in public health system — Provincial legislation prohibiting Quebec residents from taking out insurance to obtain in private sector health care services already available under Quebec’s public health care plan — Prohibition depriving Quebec residents of access to private health care services not coming with waiting times inherent in public system — Whether prohibition constituting deprivation of rights to life, liberty and security of person guaranteed by s. 7 of Canadian Charter of Rights and Freedoms and, if so, whether deprivation in accordance with principles of fundamental justice — If there violation, whether it can be justified under s. 1 of Charter — Canadian Charter of Rights and Freedoms, ss. 1 , 7 — Health Insurance Act, R.S.Q., c. A‑29, s. 15 — Hospital Insurance Act, R.S.Q., c. A‑28, s. 11.
Over the years, Z experienced a number of health problems that prompted him to speak out against waiting times in Quebec’s public health care system. C is a physician who has tried unsuccessfully to have his home‑delivered medical activities recognized and to obtain a licence to operate an independent private hospital. By means of a motion for a declaratory judgment, the appellants, Z and C, contested the validity of the prohibition on private health insurance provided for in s. 15 of the Health Insurance Act (“HEIA”) and s. 11 of the Hospital Insurance Act (“HOIA”). They contended that the prohibition deprives them of access to health care services that do not come with the waiting times inherent in the public system. They claimed, inter alia, that s. 15 HEIA and s. 11 HOIA violate their rights under s. 7 of the Canadian Charter of Rights and Freedoms and s. 1 of the Quebec Charter of Human Rights and Freedoms. The Superior Court dismissed the motion for a declaratory judgment. In the court’s view, even though the appellants had demonstrated a deprivation of the rights to life, liberty and security of the person guaranteed by s. 7 of the Canadian Charter , this deprivation was in accordance with the principles of fundamental justice. The Court of Appeal affirmed that decision.
Held (Binnie, LeBel and Fish JJ. dissenting): The appeal should be allowed. Section 15 HEIA and s. 11 HOIA are inconsistent with the Quebec Charter.
Per Deschamps J.: In the case of a challenge to a Quebec statute, it is appropriate to look first to the rules that apply specifically in Quebec before turning to the Canadian Charter , especially where the provisions of the two charters produce cumulative effects, but where the rules are not identical. Given the absence in s. 1 of the Quebec Charter of the reference to the principles of fundamental justice found in s. 7 of the Canadian Charter , the scope of the Quebec Charter is potentially broader than that of the Canadian Charter , and this characteristic should not be disregarded. What is more, it is clear that the protection of s. 1 of the Quebec Charter is not limited to situations involving the administration of justice. [26-33]
In the instant case, the trial judge’s conclusion that s. 11 HOIA and s. 15 HEIA constitute a deprivation of the rights to life and security of the person protected by s. 7 of the Canadian Charter applies in full to the rights to life and to personal inviolability protected by s. 1 of the Quebec Charter. The evidence shows that, in the case of certain surgical procedures, the delays that are the necessary result of waiting lists increase the patient’s risk of mortality or the risk that his or her injuries will become irreparable. The evidence also shows that many patients on non‑urgent waiting lists are in pain and cannot fully enjoy any real quality of life. The right to life and to personal inviolability is therefore affected by the waiting times. [38-43]
The infringement of the rights protected by s. 1 is not justified under s. 9.1 of the Quebec Charter. The general objective of the HOIA and the HEIA is to promote health care of the highest possible quality for all Quebeckers regardless of their ability to pay. The purpose of the prohibition on private insurance in s. 11 HOIA and s. 15 HEIA is to preserve the integrity of the public health care system. Preservation of the public plan is a pressing and substantial objective, but there is no proportionality between the measure adopted to attain the objective and the objective itself. While an absolute prohibition on private insurance does have a rational connection with the objective of preserving the public plan, the Attorney General of Quebec has not demonstrated that this measure meets the minimal impairment test. It cannot be concluded from the evidence concerning the Quebec plan or the plans of the other provinces of Canada, or from the evolution of the systems of various OECD countries that an absolute prohibition on private insurance is necessary to protect the integrity of the public plan. There are a wide range of measures that are less drastic and also less intrusive in relation to the protected rights. [49-58] [68] [83-84]
This is not a case in which the Court must show deference to the government’s choice of measure. The courts have a duty to rise above political debate. When, as in the case at bar, the courts are given the tools they need to make a decision, they should not hesitate to assume their responsibilities. Deference cannot lead the judicial branch to abdicate its role in favour of the legislative branch or the executive branch. While the government has the power to decide what measures to adopt, it cannot choose to do nothing in the face of a violation of Quebeckers’ right to security. Inertia cannot be used as an argument to justify deference. [87-89] [97]
Per McLachlin C.J. and Major and Bastarache JJ.: The conclusion of Deschamps J. that the prohibition on private health insurance violates s. 1 of the Quebec Charter and is not justifiable under s. 9.1 is agreed with. The prohibition also violates s. 7 of the Canadian Charter and is not justifiable under s. 1. [102]
While the decision about the type of health care system Quebec should adopt falls to the legislature of that province, the resulting legislation, like all laws, must comply with the Canadian Charter . Here, it is common ground that the effect of the prohibition on private health insurance set out in s. 11 HOIA and s. 15 HEIA is to allow only the very rich, who can afford private health care without need of insurance, to secure private care in order to avoid any delays in the public system. Given the prohibition, most Quebeckers have no choice but to accept any delays in the public health regime and the consequences this entails. [104-111] [119]
The evidence in this case shows that delays in the public health care system are widespread, and that, in some serious cases, patients die as a result of waiting lists for public health care. The evidence also demonstrates that the prohibition against private health insurance and its consequence of denying people vital health care result in physical and psychological suffering that meets a threshold test of seriousness. [112] [123]
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 . [123-124]
Section 11 HOIA and s. 15 HEIA are arbitrary, and the consequent deprivation of the interests protected by s. 7 is therefore not in accordance with the principles of fundamental justice. In order not to be arbitrary, a limit on life, liberty or security of the person requires not only a theoretical connection between the limit and the legislative goal, but a real connection on the facts. The task of the courts, on s. 7 issues as on others, is to evaluate the issue in the light, not just of common sense or theory, but of the evidence. Here, the evidence on the experience of other western democracies with public health care systems that permit access to private health care refutes the government’s theory that a prohibition on private health insurance is connected to maintaining quality public health care. It does not appear that private participation leads to the eventual demise of public health care. [126-131] [139] [149-150]
The breach of s. 7 is not justified under s. 1 of the Canadian Charter . The government undeniably has an interest in protecting the public health regime but, given that the evidence falls short of demonstrating that the prohibition on private health insurance protects the public health care system, a rational connection between the prohibition on private health insurance and the legislative objective is not made out. In addition, on the evidence, the prohibition goes further than would be necessary to protect the public system and is thus not minimally impairing. Finally, the benefits of the prohibition do not outweigh its deleterious effects. The physical and psychological suffering and risk of death that may result from the prohibition on private health insurance outweigh whatever benefit — and none has been demonstrated here — there may be to the system as a whole. [154-157]
Per Binnie, LeBel and Fish JJ. (dissenting): The question in this appeal is whether the province of Quebec not only has the constitutional authority to establish a comprehensive single‑tier health plan, but to discourage a second (private) tier health sector by prohibiting the purchase and sale of private health insurance. This issue has been the subject of protracted debate in Quebec and across Canada through several provincial and federal elections. The debate cannot be resolved as a matter of constitutional law by judges. [161]
Canadian Charter interests under s. 7 are enumerated as life, liberty and security of the person. The trial judge found that the current state of the Quebec health system, linked to the prohibition against health insurance for insured services, is capable, at least in the cases of some individuals on some occasions, of putting at risk their life or security of the person. The courts can use s. 7 of the Canadian Charter to pre‑empt the ongoing public debate only if the current health plan violates an established “principle of fundamental justice”. That is not the case here. [164] [200]
The public policy objective of “health care of a reasonable standard within a reasonable time” is not a legal principle of fundamental justice. There is no “societal consensus” about what this non‑legal standard means or how to achieve it. It will be very difficult for those designing and implementing a health plan to predict when judges will think its provisions cross the line from what is “reasonable” into the forbidden territory of what is “unreasonable”. [209]
A deprivation of a right will be arbitrary, and will thus infringe s. 7 , if it bears no relation to, or is inconsistent with, the state interest that lies behind the legislation. Quebec’s legislative objective is to provide high‑quality health care, at a reasonable cost, for as many people as possible in a manner that is consistent with principles of efficiency, equity and fiscal responsibility. An overbuilt health system is no more in the larger public interest than a system that on occasion falls short. [232-236]
The Quebec health plan shares the policy objectives of the Canada Health Act , and the means adopted by Quebec to implement these objectives are not arbitrary. In principle, Quebec wants a health system where access is governed by need rather than wealth or status. To accomplish this objective, Quebec seeks to discourage the growth of private sector delivery of “insured” services based on wealth and insurability. The prohibition is thus rationally connected to Quebec’s objective and is not inconsistent with it. In practical terms, Quebec bases the prohibition on the view that private insurance, and a consequent major expansion of private health services, would have a harmful effect on the public system. [237-240]
The view of the evidence taken by the trial judge supports that belief. She found that the expansion of private health care would undoubtedly have a negative impact on the public health system. The evidence indicates that a parallel private system will not reduce, and may worsen, the public waiting lists and will likely result in a decrease in government funding for the public system. In light of these findings, it cannot be said that the prohibition against private health insurance “bears no relation to, or is inconsistent with” the preservation of a health system predominantly based on need rather than wealth or status. Prohibition of private insurance is not “inconsistent” with the State interest; still less is it “unrelated” to it. People are free to dispute Quebec’s strategy, but it cannot be said that the province’s version of a single‑tier health system, and the prohibition on private health insurance designed to protect that system, is a legislative choice that has been adopted “arbitrarily” by the Quebec National Assembly as that term has been understood to date in the Canadian Charter jurisprudence. [235-248] [256-258]
The limits on legislative action fixed by the Quebec Charter are no more favourable to the appellants’ case than are those fixed by the Canadian Charter . Section 1 of the Quebec Charter, in essence, covers about the same ground as s. 7 of the Canadian Charter , but it does not mention the principles of fundamental justice. Here, the prohibition against private insurance is justifiable under s. 9.1 of the Quebec Charter, which requires rights to be exercised with “proper regard” to “democratic values, public order and the general well‑being of the citizens of Québec”. On the evidence, the exercise by the appellants of their claimed Quebec Charter rights to defeat the prohibition against private insurance would not have proper regard for “democratic values” or “public order”, as the future of a publicly supported and financed single‑tier health plan should be in the hands of elected representatives. Nor would it have proper regard for the “general well‑being of the citizens of Québec”, who are the designated beneficiaries of the health plan, and in particular for the well‑being of the less advantaged Quebeckers. The evidence amply supports the validity of the prohibition of private insurance under the Quebec Charter: the objectives are compelling; a rational connection between the measure and the objective has been demonstrated, and the choice made by the National Assembly is within the range of options that are justifiable under s. 9.1. In respect of questions of social and economic policy, the minimal impairment test leaves a substantial margin of appreciation to the Quebec legislature. Designing, financing and operating the public health system of a modern democratic society remains a challenging task and calls for difficult choices. Shifting the design of the health system to the courts is not a wise outcome. [179] [271-276]
The safety valve (however imperfectly administered) of allowing Quebec residents to obtain essential health care outside the province when they are unable to receive the care in question at home in a timely manner is of importance. If, as the appellants claim, this safety valve is opened too sparingly, the courts are available to supervise enforcement of the rights of those patients who are directly affected by the decision on a case‑by‑case basis. [264]
Cases Cited
By Deschamps J.
Applied: Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575; R. v. Oakes, [1986] 1 S.C.R. 103; referred to: Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; YMHA Jewish Community Centre of Winnipeg Inc. v. Brown, [1989] 1 S.C.R. 1532; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84; R. v. Collins, [1987] 1 S.C.R. 265; Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand, [1996] 3 S.C.R. 211; R. v. Morgentaler, [1988] 1 S.C.R. 30; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Egan v. Canada, [1995] 2 S.C.R. 513; Charles Bentley Nursing Home Inc. v. Ministre des Affaires sociales, [1978] C.S. 30; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Vriend v. Alberta, [1998] 1 S.C.R. 493; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199.
By McLachlin C.J. and Major J.
Applied: R. v. Morgentaler, [1988] 1 S.C.R. 30; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; referred to: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Amax Potash Ltd. v. Government of Saskatchewan, [1977] 2 S.C.R. 576; R. v. Malmo‑Levine, [2003] 3 S.C.R. 571, 2003 SCC 74; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; R. v. Oakes, [1986] 1 S.C.R. 103.
By Binnie and LeBel JJ. (dissenting)
Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, 2004 SCC 78; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Malmo‑Levine, [2003] 3 S.C.R. 571, 2003 SCC 74; Vriend v. Alberta, [1998] 1 S.C.R. 493; Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44; Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Lochner v. New York, 198 U.S. 45 (1905); West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4; Stein v. Tribunal administratif du Québec, [1999] R.J.Q. 2416; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Godbout v. Longueuil (Ville de), [1995] R.J.Q. 2561.
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APPEAL from judgments of the Quebec Court of Appeal (Brossard, Delisle and Forget JJ.A.), [2002] R.J.Q. 1205, [2002] Q.J. No. 759 (QL) and [2002] Q.J. No. 763 (QL), affirming a decision of Piché J., [2000] R.J.Q. 786, [2000] Q.J. No. 479 (QL). Appeal allowed, Binnie, LeBel and Fish JJ. dissenting.
Jacques Chaoulli, on his own behalf.
Bruce W. Johnston and Philippe H. Trudel, for the appellant George Zeliotis.
Patrice Claude, Robert Monette, Dominique A. Jobin, Ariel G. Boileau and Manon Des Ormeaux, for the respondent the Attorney General of Quebec.
Jean‑Marc Aubry, Q.C., and René LeBlanc, for the respondent the Attorney General of Canada.
Janet E. Minor, Shaun Nakatsuru and Laurel Montrose, for the intervener the Attorney General of Ontario.
Written submissions only by Gabriel Bourgeois, Q.C., for the intervener the Attorney General of New Brunswick.
Written submissions only by Graeme G. Mitchell, Q.C., for the intervener the Attorney General for Saskatchewan.
Written submissions only by the intervener Augustin Roy.
Earl A. Cherniak, Q.C., Stanley H. Hartt, Q.C., Patrick J. Monahan and Valerie D. Wise, for the interveners Senator Michael Kirby, Senator Marjory Lebreton, Senator Catherine Callbeck, Senator Joan Cook, Senator Jane Cordy, Senator Joyce Fairbairn, Senator Wilbert Keon, Senator Lucie Pépin, Senator Brenda Robertson and Senator Douglas Roche.
Guy J. Pratte, Freya Kristjanson, Carole Lucock and Jean Nelson, for the interveners the Canadian Medical Association and the Canadian Orthopaedic Association.
Written submissions only by Steven Barrett, Steven Shrybman, Ethan Poskanzer and Vanessa Payne, for the intervener the Canadian Labour Congress.
Martha Jackman, for the interveners the Charter Committee on Poverty Issues and the Canadian Health Coalition.
Marvin R. V. Storrow, Q.C., and Peter W. Hogg, Q.C., for the interveners Cambie Surgeries Corp., False Creek Surgical Centre Inc., Delbrook Surgical Centre Inc., Okanagan Plastic Surgery Centre Inc., Specialty MRI Clinics Inc., Fraser Valley MRI Ltd., Image One MRI Clinic Inc., McCallum Surgical Centre Ltd., 4111044 Canada Inc., South Fraser Surgical Centre Inc., Victoria Surgery Ltd., Kamloops Surgery Centre Ltd., Valley Cosmetic Surgery Associates Inc., Surgical Centres Inc., the British Columbia Orthopaedic Association and the British Columbia Anesthesiologists Society.
English version of the reasons delivered by
1 Deschamps J. — Quebeckers are prohibited from taking out insurance to obtain in the private sector services that are available under Quebec’s public health care plan. Is this prohibition justified by the need to preserve the integrity of the plan?
2 As we enter the 21st century, health care is a constant concern. The public health care system, once a source of national pride, has become the subject of frequent and sometimes bitter criticism. This appeal does not question the appropriateness of the state making health care available to all Quebeckers. On the contrary, all the parties stated that they support this kind of role for the government. Only the state can make available to all Quebeckers the social safety net consisting of universal and accessible health care. The demand for health care is constantly increasing, and one of the tools used by governments to control this increase has been the management of waiting lists. The choice of waiting lists as a management tool falls within the authority of the state and not of the courts. The appellants do not claim to have a solution that will eliminate waiting lists. Rather, they submit that the delays resulting from waiting lists violate their rights under the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12 (“Quebec Charter”), and the Canadian Charter of Rights and Freedoms (“Canadian Charter ”). They contest the validity of the prohibition in Quebec, as provided for in s. 15 of the Health Insurance Act, R.S.Q., c. A‑29 (“HEIA”), and s. 11 of the Hospital Insurance Act, R.S.Q., c. A‑28 (“HOIA”), on private insurance for health care services that are available in the public system. The appellants contend that the prohibition deprives them of access to health care services that do not come with the wait they face in the public system.
3 The two sections in issue read as follows:
15. No person shall make or renew a contract of insurance or make a payment under a contract of insurance under which an insured service is furnished or under which all or part of the cost of such a service is paid to a resident or a deemed resident of Québec or to another person on his behalf.
. . .
11. (1) No one shall make or renew, or make a payment under a contract under which
(a) a resident is to be provided with or to be reimbursed for the cost of any hospital service that is one of the insured services;
(b) payment is conditional upon the hospitalization of a resident; or
(c) payment is dependent upon the length of time the resident is a patient in a facility maintained by an institution contemplated in section 2.
4 In essence, the question is whether Quebeckers who are prepared to spend money to get access to health care that is, in practice, not accessible in the public sector because of waiting lists may be validly prevented from doing so by the state. For the reasons that follow, I find that the prohibition infringes the right to personal inviolability and that it is not justified by a proper regard for democratic values, public order and the general well‑being of the citizens of Quebec.
5 The validity of the prohibition is contested by the appellants, George Zeliotis and Jacques Chaoulli. Over the years, Mr. Zeliotis has experienced a number of health problems and has used medical services that were available in the public system, including heart surgery and a number of operations on his hip. The difficulties he encountered prompted him to speak out against waiting times in the public health care system. Mr. Chaoulli is a physician who has tried unsuccessfully to have his home‑delivered medical activities recognized and to obtain a licence to operate an independent private hospital. Mr. Zeliotis and Mr. Chaoulli joined forces to apply to the court by way of motion for a declaration that s. 15 HEIA and s. 11 HOIA are unconstitutional and invalid. Mr. Chaoulli argues, first, that the prohibition is within the federal government’s legislative jurisdiction in relation to criminal law and, second, that the prohibition violates the rights to life and to personal security, inviolability and freedom protected by s. 1 of the Quebec Charter and ss. 7 , 12 and 15 of the Canadian Charter . The respondents contested the motion both in the Superior Court and in the Court of Appeal.
6 The Superior Court dismissed the motion for a declaratory judgment: [2000] R.J.Q. 786. With respect to the province’s power to enact s. 11 HOIA and s. 15 HEIA, Piché J. found that the purpose of the prohibition is to discourage the development of parallel private health care services and that it is not a criminal law matter.
7 On the subject of s. 7 of the Canadian Charter , she noted that according to this Court, its scope may include certain economic rights that are intimately connected with the right to life, liberty and security of the person. She found that the appellants had demonstrated a deprivation of the right to life, liberty and security of the person within the meaning of s. 7 of the Canadian Charter . Piché J. then considered whether this deprivation was in accordance with the principles of fundamental justice. She was of the opinion that the purpose of the HOIA and the HEIA is to establish a public health system that is available to all residents of Quebec. The purpose of s. 11 HOIA and s. 15 HEIA is to guarantee that virtually all of Quebec’s existing health care resources will be available to all residents of Quebec. In her opi