From Chaoulli v. Quebec

Binnie and LeBel JJ. (Dissenting) –

I. Introduction

161 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. The appellants argue that timely access to needed medical service is not being provided in the publicly funded system and that the province cannot therefore deny to those Quebeckers (who can qualify) the right to purchase private insurance to pay for medical services whenever and wherever such services can be obtained for a fee, i.e. in the private sector. This issue has been the subject of protracted debate across Canada through several provincial and federal elections. We are unable to agree with our four colleagues who would allow the appeal that such a debate can or should be resolved as a matter of law by judges. We find that, on the legal issues raised, the appeal should be dismissed.

162 Our colleagues the Chief Justice and Major J. state at para. 105:

By imposing exclusivity and then failing to provide public health care of a reasonable standard within a reasonable time, the government creates circumstances that trigger the application of s. 7 of the Charter. [Emphasis added.]

163 The Court recently held in Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, 2004 SCC 78, that the government was not required to fund the treatment of autistic children. It did not on that occasion address in constitutional terms the scope and nature of “reasonable” health services. Courts will now have to make that determination. What, then, are constitutionally required “reasonable health services”? What is treatment “within a reasonable time”? What are the benchmarks? How short a waiting list is short enough? How many MRIs does the Constitution require? The majority does not tell us. The majority lays down no manageable constitutional standard. The public cannot know, nor can judges or governments know, how much health care is “reasonable” enough to satisfy s. 7 of the Canadian Charter of Rights and Freedoms (“Canadian Charter”) and s. 1 of the Charter of Human Rights and Freedoms, R.S.Q. c. C-12 (“Quebec Charter”). It is to be hoped that we will know it when we see it.

164 The policy of the Canada Health Act, R.S.C. 1985, c. C-6, and its provincial counterparts is to provide health care based on need rather than on wealth or status. The evidence certainly established that the public health care system put in place to implement this policy has serious and persistent problems. This does not mean that the courts are well placed to perform the required surgery. The resolution of such a complex fact-laden policy debate does not fit easily within the institutional competence or procedures of courts of law. 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”. Our colleagues McLachlin C.J. and Major J. argue that Quebec’s enforcement of a single-tier health plan meets this legal test because it is “arbitrary”. In our view, with respect, the prohibition against private health insurance is a rational consequence of Quebec’s commitment to the goals and objectives of the Canada Health Act.

165 Our colleague Deschamps J. states at para. 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. [Emphasis added.]

This is so, but of course it must be recognized that the liberty and security of Quebeckers who do not have the money to afford private health insurance, or who cannot qualify for it, or who are not employed by establishments that provide it, are not put at risk by the absence of “upper tier” health care. It is Quebeckers who have the money to afford private medical insurance and can qualify for it who will be the beneficiaries of the appellants’ constitutional challenge.

166 The Quebec government views the prohibition against private insurance as essential to preventing the current single-tier health system from disintegrating into a de facto two-tier system. The trial judge found, and the evidence demonstrated, that there is good reason for this fear. The trial judge concluded that a private health sector fuelled by private insurance would frustrate achievement of the objectives of the Canada Health Act. She thus found no legal basis to intervene, and declined to do so. This raises the issue of who it is that should resolve these important and contentious issues. Commissioner Roy Romanow makes the following observation in his Report:

Some have described it as a perversion of Canadian values that they cannot use their money to purchase faster treatment from a private provider for their loved ones. I believe it is a far greater perversion of Canadian values to accept a system where money, rather than need, determines who gets access to care.

(Building on Values: The Future of Health Care in Canada: Final Report (2002), at p. xx (“Romanow Report”))

Whether or not one endorses this assessment, his premise is that the debate is about social values. It is not about constitutional law. We agree.

167 We believe our colleagues the Chief Justice and Major J. have extended too far the strands of interpretation under the Canadian Charter laid down in some of the earlier cases, in particular the ruling on abortion in R. v. Morgentaler, [1988] 1 S.C.R. 30 (which involved criminal liability, not public health policy). We cannot find in the constitutional law of Canada a “principle of fundamental justice” dispositive of the problems of waiting lists in the Quebec health system. In our view, the appellants’ case does not rest on constitutional law but on their disagreement with the Quebec government on aspects of its social policy. The proper forum to determine the social policy of Quebec in this matter is the National Assembly.

168 Our colleagues the Chief Justice and Major J. write:

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. [para. 150]

This, of course, is precisely what the learned trial judge did after weeks of listening to expert testimony and argument. In general, we agree with her conclusions. There is nothing in the evidence to justify our colleagues’ disagreement with her conclusion that the general availability of health insurance will lead to a significant expansion of the private health sector to the detriment of the public health sector. While no one doubts that the Quebec health plan is under sustained and heavy criticism, and that at least some of the criticisms w
ere supported by the trial judge on the basis of the evidence, the trial judge rejected the appellants’ contention (now accepted by our colleagues the Chief Justice and Major J.) that the prohibition on private insurance is contrary to the principles of fundamental justice. The trial judge’s conclusion was endorsed by Justice Forget of the Quebec Court of Appeal. As a matter of law, we see no reason to interfere with their collective and unanimous judgment on this point. Whatever else it might be, the prohibition is not arbitrary.

169 We can all support the vague objective of “public health care of a reasonable standard within a reasonable time”. Most people have opinions, many of them conflicting, about how to achieve it. A legislative policy is not “arbitrary” just because we may disagree with it. As our colleagues the Chief Justice and Major J. fully recognize, the legal test of “arbitrariness” is quite well established in the earlier case law. In our view that test is not met in this case, for reasons we will develop in some detail. Suffice it to say at this point that in our view, the appellants’ argument about “arbitrariness” is based largely on generalizations about the public system drawn from fragmentary experience, an overly optimistic view of the benefits offered by private health insurance, an oversimplified view of the adverse effects on the public health system of permitting private sector health services to flourish and an overly interventionist view of the role the courts should play in trying to supply a “fix” to the failings, real or perceived, of major social programs.

A. The Argument About Adding an “Upper Tier” to the Quebec Health Plan

170 The nature of a two-tier system is explained as follows:

In the broad sense, a two-tier system refers to two co-existing health care systems: a publicly funded system and a privately funded system. This definition implies that there is a differential access to health services based on one’s ability to pay, rather than according to need. In other words, those who can afford it may either obtain access to better quality care or to quicker care in the privately funded system, while the rest of the population continues to access health care only through the publicly funded system. [Emphasis added.]

(The Health of Canadians – The Federal Role, vol. 4, Issues and Options, Interim report (2001), p. 67 (“Kirby Report”))

It is evident, of course, that neither Quebec nor any of the other provinces has a “pure” single-tier system. In the area of uninsured medical services, for example, the private sector is the dominant supplier. In other cases, the private sector may perform the service but is paid by the state. The issue here, as it is so often in social policy debates, is where to draw the line. One can rarely say in such matters that one side of a line is “right” and the other side of a line is “wrong”. Still less can we say that the boundaries of the Quebec health plan are dictated by the Constitution. Drawing the line around social programs properly falls within the legitimate exercise of the democratic mandates of people elected for such purposes, preferably after a public debate.

B. Background to the Health Policy Debate

171 Prior to 1961, only 53 per cent of Canadians were covered by some form of health insurance, leaving approximately 8 million Canadians without insurance coverage (Voluntary Medical Insurance and Prepayment (1964) (“Berry Commission”)). At that time, health care costs were the number one cause of personal bankruptcy in Canada.

172 In these circumstances, the people of Quebec, through their elected representatives, opted for a need-based, rather than a wealth-based, health care system. In the Castonguay-Nepveu Report, said to be the foundation of the public health care system in Quebec, it was stated:

The maintenance of the people’s health more and more is accepted as a collective responsibility. This is not surprising since it must be admitted that without vigorous State action, the right to health would remain a purely theoretical notion, without any real content. [Emphasis added.]

(Rapport de la Commission d’enquete sur la sante et le bien-etre social: La sante, Tome 1, La situation actuelle (1970), at p. 34 (“Castonguay-Nepveu Report”))

173 The Kirby Report noted in 2001 that “Canadians’ attachment to a sense of collective responsibility for the provision of health care has remained largely intact despite a shift towards more individualistic values” (vol. 4, p. 137; see also Emerging Solutions: Report and Recommendations (2000), p. 243 (“Clair Report”); La complementarite du secteur prive dans la poursuite des objectifs fondamentaux du systeme public de sante au Quebec: Rapport du groupe de travail (1999), p. 34 (“Arpin Report”)). Both the Kirby Report and the Romanow Report contained extensive investigations into the operations and problems of the current public health systems across Canada. They acknowledged that the financing of health care is putting a growing stress on public finances and national resources. For fiscal year 2004-2005, federal/provincial/territorial spending on health care is estimated to be about $88 billion (Federal Support for Health Care: The Facts, Finance Canada (September 2004)). Whether this growing level of expenditure is sustainable, justified or wise is a matter on which we all have opinions. In the absence of a violation of a recognized “principle of fundamental justice”, the opinions that prevail should be those of the legislatures.

174 Not all Canadian provinces prohibit private health insurance, but all of them (with the arguable exception of Newfoundland) take steps to protect the public health system by discouraging the private sector, whether by prohibiting private insurance (Quebec, Ontario, Manitoba, British Columbia, Alberta and Prince Edward Island) or by prohibiting doctors who opt out of the public sector, from billing their private patients more than the public sector tariff, thereby dulling the incentive to opt out (Ontario, Manitoba and Nova Scotia), or eliminating any form of cross-subsidy from the public to the private sector (Quebec, British Columbia, Alberta, Prince Edward Island, Saskatchewan and New Brunswick). The mixture of deterrents differs from province to province, but the underlying policies flow from the Canada Health Act and are the same: i.e. as a matter of principle, health care should be based on need, not wealth, and as a matter of practicality the provinces judge that growth of the private sector will undermine the strength of the public sector and its ability to achieve the objectives of the Canada Health Act.

175 The argument for a “two-tier system” is that it will enable “ordinary” Canadians to access private health care. Indeed, this is the view taken by our colleagues the Chief Justice and Major J. who quote the appellants’ argument that “disallowing private insurance precludes the vast majority of Canadians (middle-income and low-income earners) from accessing” private health care (para. 137). This way of putting the argument suggests that the Court has a mandate to save middle-income and low-income Quebeckers from themselves, because both the Romanow Report and the Kirby Report found that the vast majority of “ordinary” Canadians want a publicly financed single-tier (more or less) health plan to which access is governed by need rather than wealth and where the ava
ilability of coverage is not contingent on personal insurability. Our colleagues rely in part on the experience in the United States (para. 148) and the fact that public funding in that country accounts for only 45 per cent of total health care spending. But if we look at the practical reality of the U.S. system, the fact is that 15.6 per cent of the American population (i.e. about 45 million people) had no health insurance coverage at all in 2003, including about 8.4 million children. As to making health care available to medium and low-income families, the effect of “two-tier” health coverage in the U.S. is much worse for minority groups than for the majority. Hispanics had an uninsured rate of 32.7 per cent, and African Americans had an uninsured rate of 19.4 per cent. For 45 million Americans, as for those “ordinary” Quebeckers who cannot afford private medical insurance or cannot obtain it because they are deemed to be “bad risks”, it is a matter of public health care or no care at all. (C. DeNavas-Walt, B. D. Proctor and R. J. Mills, Income, Poverty, and Health Insurance Coverage in the United States: 2003: Current Population Reports: Consumer Income (2004), pp. 56-59).

176 It would be open to Quebec to adopt a U.S.-style health care system. No one suggests that there is anything in our Constitution to prevent it. But to do so would be contrary to the policy of the Quebec National Assembly, and its policy in that respect is shared by the other provinces and the federal Parliament. As stated, Quebec further takes the view that significant growth in the private health care system (which the appellants advocate) would inevitably damage the public system. Our colleagues the Chief Justice and Major J. disagree with this assessment, but governments are entitled to act on a reasonable apprehension of risk of such damage. As noted by the majority in R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, at para. 133:

Members of Parliament are elected to make these sorts of decisions, and have access to a broader range of information, more points of view, and a more flexible investigative process than courts do.

While the existence of waiting times is undoubted, and their management a matter of serious public concern, the proposed constitutional right to a two-tier health system for those who can afford private medical insurance would precipitate a seismic shift in health policy for Quebec. We do not believe that such a seismic shift is compelled by either the Quebec Charter or the Canadian Charter.

II. Analysis

177 The appellants’ principal argument is that the existence of waiting lists in Quebec and the concurrent prohibition on private health insurance violate s. 7 of the Canadian Charter, which guarantees everyone the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

178 The legal question raised by our colleagues the Chief Justice and Major J. under the Canadian Charter is whether or not the Quebec health plan violates a principle of fundamental justice and, if so, whether the plan can nevertheless be saved under s. 1.

179 The reasons of our colleague Deschamps J., on the other hand, are limited to s. 1 of the Quebec Charter which protects the right of every human being to life and to personal security, inviolability and freedom. The Quebec Charter does not talk explicitly about “principles of fundamental justice”. Nevertheless, in our view, the legislative limits fixed by the Quebec Charter are no more favourable to the appellants’ case than are those fixed by the Canadian Charter. Rights under the Quebec Charter are to be exercised with “proper” regard to “democratic” values (including those of the electorate) “public order and the general well-being of the citizens of Quebec” (including those who cannot afford, or may not qualify for, private health insurance coverage). We address this issue below starting at para. 266.

180 Our colleagues the Chief Justice and Major J. agree with the appellants that there is a violation of s. 7 of the Canadian Charter. As mentioned earlier, their opinion rests in substantial part on observations made by various members of this Court in Morgentaler. At issue in that case was the criminal liability of doctors and their patients under s. 251 of the Criminal Code, R.S.C. 1970, c. C-34, for performing abortions. The nub of the legal challenge was that in creating the abortion offence Parliament had qualified the charge with a “therapeutic abortion” defence, but the defence was not working. The factual and legal issues raised in that criminal law problem are, we think, far removed from the debate over a two-tiered health system. Morgentaler applied a “manifest unfairness” test which has never been adopted by the Court outside the criminal law, and certainly not in the context of the design of social programs. The Morgentaler judgment fastened on internal inconsistencies in s. 251 of the Criminal Code, which find no counterpart here. In our view, with respect, Morgentaler provides no support for the appellants in this case, as we discuss commencing at para. 259.

181 As stated, we accept the finding of the courts below that a two-tier health care system would likely have a negative impact on the integrity, functioning and viability of the public system, [2000] R.J.Q. 786, p. 827; reasons of Forget J.A., [2002] R.J.Q. 1205, p. 1215. Although this finding is disputed by our colleagues the Chief Justice and Major J. (a point to which we will return), it cannot be contested that as a matter of principle, access to private health care based on wealth rather than need contradicts one of the key social policy objectives expressed in the Canada Health Act. The state has established its interest in promoting the equal treatment of its citizens in terms of health care. The issue of arbitrariness relates only to the validity of the means adopted to achieve that policy objective. Counsel for the appellant Zeliotis was not oblivious to the potential danger posed by the re-allocation of health resources to the private sector. In opening his oral submissions to the Court, he acknowledged the need as a matter of social policy to protect the public health system:

[translation] May a person use his or her own resources to obtain medical care outside the public system if the public system is unable to provide medical care within an acceptable time and if doing so would not deprive the public system of the resources it needs? . . .

We recognize that it is perfectly legitimate for the state to make sure that the public system has on a priority basis all the resources it needs to function. We concede that, if this were in fact impossible, our appeal should fail. [Emphasis added.]

(Oral Transcript, M^e Trudel, p. 24)

While Quebec does not outlaw private health care, which is therefore accessible to those with cash on hand, it wishes to discourage its growth. Failure to stop the few people with ready cash does not
pose a structural threat to the Quebec health plan. Failure to stop private health insurance will, as the trial judge found, do so. Private insurance is a condition precedent to, and aims at promoting, a flourishing parallel private health care sector. For Dr. Chaoulli in particular, that is the whole point of this proceeding.

A. Preliminary Objections

182 The Attorneys General made two preliminary objections: first, that the claims raised on this appeal are not properly justiciable; and second, that neither Dr. Chaoulli nor Mr. Zeliotis has standing to bring their claim. These objections should be rejected.

(1) Justiciability

183 The Attorneys general of Canada and Quebec argue that the claims advanced by the appellants are inherently political and, therefore, not properly justiciable by the courts. We do not agree. Section 52 of the Constitution Act, 1982 affirms the constitutional power and obligation of courts to declare laws of no force or effect to the extent of their inconsistency with the Constitution. Where a violation stems from a Charter breach, the court may also order whatever remedy is “appropriate and just” in the circumstances under s. 24. There is nothing in our constitutional arrangement to exclude “political questions” from judicial review where the Constitution itself is alleged to be violated.

184 Nevertheless, a correct balance must be struck between the judiciary and the other branches of government. Each branch must respect the limits of its institutional role. As stated in Vriend v. Alberta, [1998] 1 S.C.R. 493, “the courts are to uphold the Constitution and have been expressly invited to perform that role by the Constitution itself. But respect by the courts for the legislature and executive role is as important as ensuring that the other branches respect each others’ role and the role of the courts” (para. 136).

185 In the present case, the appellants are challenging the legality of Quebec’s prohibition against private health insurance. While the issue raises “political questions” of a high order, the alleged Charter violation framed by the appellants is in its nature justiciable, and the Court should deal with it.

(2) Standing of Dr. Chaoulli and Mr. Zeliotis

186 Article 55 of the Code of Civil Procedure, R.S.Q., c. C-25, requires that the party bringing an action have a “sufficient interest” in the litigation. In our view, for the reasons given by the trial judge, as previously mentioned, Mr. Zeliotis has not demonstrated that systemic waiting lists were the cause of his delayed treatment.

187 Dr. Chaoulli’s situation is different. He offers himself as an advocate for private health insurance. He is a medically trained individual who has a history of conflict with the Quebec health authorities and of disobedience to their rules governing medical practice. The trial judge found Dr. Chaoulli’s motives to be questionable:

[translation] At first, Dr. Chaoulli was supposed to complete his initial contract in a remote region. He did not do so but returned to Montreal and, contrary to what he was entitled to do, began practising on the South Shore. He then obstinately insisted on practising medicine as he pleased, disregarding the regional board’s decisions. Dr. Chaoulli never testified that he had received inadequate care or that the system had not responded to his personal health needs. He still faces substantial penalties at the Regie de l’assurance-maladie du Quebec. He was released from his obligations, returned to the public system, and is still not satisfied. All this leads the Court to question Dr. Chaoulli’s real motives in this dispute. It is impossible not to be struck by the contradictions in his testimony and by the impression that Dr. Chaoulli has embarked on a crusade that now raises questions transcending his own personal case. [p. 795]

188 Nevertheless, we accept that the appellants have a sufficient interest in the constitutional questions to be given public interest standing. In Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575, at p. 598, Martland J. wrote that to qualify in that regard, a person must satisfy three requirements:

[T]o establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a serious issue as to its invalidity, a person need only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the Court.

See also Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236.

189 All three of these conditions are met in the present case. First, there is a serious challenge to the invalidity of the impugned provisions. Access to medical care is a concern of all Quebec residents. Second, Dr. Chaoulli and Mr. Zeliotis are both Quebec residents and are therefore directly affected by the provisions barring access to private health insurance. Third, the appellants advance the broad claim that the Quebec health plan is unconstitutional for systemic reasons. They do not limit themselves to the circumstances of any particular patient. Their argument is not limited to a case-by-case consideration. They make the generic argument that Quebec’s chronic waiting lists destroy Quebec’s legislative authority to draw the line against private health insurance. From a practical point of view, while individual patients could be expected to bring their own cases to court if they wished to do so, it would be unreasonable to expect a seriously ailing person to bring a systemic challenge to the whole health plan, as was done here. The material, physical and emotional resources of individuals who are ill, and quite possibly dying, are likely to be focussed on their own circumstances. In this sense, there is no other class of persons that is more directly affected and that could be expected to undertake the lengthy and no doubt costly systemic challenge to single-tier medicine. Consequently, we agree that the appellants in this case were rightly granted public interest standing. However, the corollary to this ruling is that failure by the appellants in their systemic challenge would not foreclose constitutional relief to an individual based on, and limited to, his or her particular circumstances.

B. The Canadian Charter of Rights and Freedoms

190 The Chief Justice and Major J. would strike down the Quebec legislation on the basis of s. 7 of the Canadian Charter, which provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

191 Like our colleagues McLachlin C.J. and Major J., we accept the trial judge’s conclusion that in some circumstances some Quebeckers may have their life or “security of the person” put at risk by the prohibition against private health insurance. However, unlike our colleagues, we agree with the trial judge and the Quebec Court of Appeal that this situation, however deplorable, is not capable of resolution as a matter of constitutional law. At the same time, we reject some of the constraints that the Attorney General of Quebec would place on the Court’s analysis.

(1) The Application of Section 7 to Matters Not Falling Within the Administration of Justice

192 The Attorney General of Quebec argues that s. 7 does not protect economic rights. This is true, but is somewhat beside the point. The appellants seek access to a two-tier health system. The fact it will cost money to the people in the “upper tier” is an incidental (although important) aspect of their challenge, which is principled in nature.

193 Section 7 gives rise to some of the most difficult issues in Canadian Charter litigation. Because s. 7 protects the most basic interests of human beings – life, liberty and security – claimants call on the courts to adjudicate many difficult moral and ethical issues. It is therefore prudent, in our view, to proceed cautiously and incrementally in applying s. 7, particularly in distilling those principles that are so vital to our society’s conception of “principles of fundamental justice” as to be constitutionally entrenched.

194 At first blush, s. 15 of the Health Insurance Act, R.S.Q., c. A-29, and s. 11 of the Hospital Insurance Act, R.S.Q., c. A-28, seem far removed from the usual concerns of s. 7 of the Canadian Charter. The provisions sought to be invalidated provide:

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 Quebec 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.

195 The present challenge does not arise out of an adjudicative context or one involving the administration of justice. Sections 11 and 15 are plainly not adjudicative provisions. Nor are they administrative provisions in the sense of being part of the administrative scheme for the provision of health services, though they do form part of the regulatory health regime. Section 11 is a civil prohibition against the making or renewing of a contract for insurance for “insured services” and against the payment under such a contract for “insured services”. Any contract entered into in contravention of s. 11 and s. 15 would be absolutely null and unenforceable because it is contrary to the general interest: art. 1417 of the Civil Code of Quebec, S.Q. 1991, c. 64. Although small fines may be imposed for the breach of these provisions, we think that regulations providing for such fines, which are wholly incidental to the regulatory purpose, would not create a sufficient nexus with the adjudicative context to ground the application of s. 7 on that basis.

196 It will likely be a rare case where s. 7 will apply in circumstances entirely unrelated to adjudicative or administrative proceedings. That said, the Court has consistently left open the possibility that s. 7 may apply outside the context of the administration of justice: Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84, at paras. 78-80 and 414.

197 The Court has been moving away from a narrow approach to s. 7, which restricted the scope of the section to legal rights to be interpreted in light of the rights enumerated in ss. 8-14: see, e.g., Reference re ss. 193 and 195.1(1)© of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (“Prostitution Reference”), at pp. 1171-74. In Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44, the majority held that s. 7 can apply outside of the criminal context. Further, in Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48, the Court held that the wardship provisions of the Child Welfare Act, S.A. 1984, c. C-8.1, denying parents the ability to choose medical treatment for their infants, implicated the s. 7 liberty interests of parents.

198 Placing s. 7 under the heading “Legal Rights” in the Canadian Charter does not narrow or control its scope. Such a result would be unduly formalistic and inconsistent with the large, liberal and purposive interpretation of s. 7 that has been the hallmark of this Court’s approach since Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486. This is evidenced by the refusal of the majority in that case to restrict “principles of fundamental justice” solely to procedural guarantees. Lamer J. observed that “the principles of fundamental justice are to be found in the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system” (p. 512 (emphasis added)).

199 Claimants whose life, liberty or security of the person is put at risk are entitled to relief only to the extent that their complaint arises from a breach of an identifiable principle of fundamental justice. The real control over the scope and operation of s. 7 is to be found in the requirement that the applicant identify a violation of a principle of fundamental justice. The further a challenged state action lies from the traditional adjudicative context, the more difficult it will be for a claimant to make that essential link. As will become clear, that is precisely the difficulty encountered by the claimants here: they are unable to demonstrate that any principle of fundamental justice has been contravened.

(2) Which Section 7 Interests Are Engaged?

200 Section 7 interests are enumerated as life, liberty and security of the person. As stated, we accept the trial judge’s finding 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.

201 We do not agree with the appellants, however, that the Quebec Health Plan puts the “liberty” of Quebeckers at risk. The argument that “liberty” includes freedom of contract (in this case to contract for private medical insurance) is novel in Canada, where economic rights are not included in the Charter and discredited in the United States. In that country, the liberty of individuals (mainly employers) to contract out of social and economic programs was endorsed by the Supreme Court in the early decades of the 20th century on the theory that laws that prohibited employers from entering into oppressive contracts with employees violated their “liberty” of contract; see, e.g., Lochner v. New York, 198 U.S. 45 (1905), at p. 62:

… a prohibition to enter into any contract of labor in a bakery for more than a certain number of hours a week, is, in our judgment, so wholly beside the matter of a proper, reasonable and fair provision, as to run counter to that liberty of person and of free contract provided
for in the Federal Constitution.

Of this line of cases, which was not brought to an end until West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), Professor L. H. Tribe has written that the Supreme Court of the United States:

… relied on the Fourteenth Amendment’s Due Process Clause to strike down economic legislation that the Court saw as improperly infringing on contractual liberty, but in which the Court was widely (even if not always correctly) perceived to be substituting its own judgment, in the absence of any actual constitutional mandate, for that of the legislature. [Emphasis added.]

(American Constitutional Law (3rd ed. 2000), vol. 1, at p. 1318)

202 Nor do we accept that s. 7 of the Canadian Charter guarantees Dr. Chaoulli the “liberty” to deliver health care in a private context. The trial judge correctly concluded that [translation] “s. 7 of the Canadian Charter does not protect a physician’s right to practise his or her profession without restrictions in the private sector. That is a purely economic right” (p. 823). The fact that state action constrains an individual’s freedom by eliminating career choices that would otherwise be available does not in itself attract the protection of the liberty interest under s. 7. The liberty interest does not, for example, include the right to transact business whenever one wishes: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 786. Nor does it protect the right to exercise one’s chosen profession: Prostitution Reference, at p. 1179, per Lamer J. We would therefore reject Dr. Chaoulli’s claim on behalf of care providers that their liberty interest under either the Canadian Charter or the Quebec Charter has been infringed by Quebec’s single-tier public health system.

(3) Is There a Constitutional Right to Spend Money?

203 Reference has already been made to the question raised by our colleague Deschamps J. at para. 4 of her reasons:

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.

While we do not accept that there is a constitutional right “to spend money”, which would be a property right, we agree that if the public system fails to deliver life-saving care and an individual is simultaneously prevented from seeking insurance to cover the cost of that care in a private facility, then the individual is potentially caught in a situation that may signal a deprivation of his or her security of the person.

204 This is not to say that every encounter with a waiting list will trigger the application of s. 7. The interference with one’s mental well-being must not be trivial. It must rise above the ordinary anxiety caused by the vicissitudes of life, but it need not be so grave as to lead to serious mental anguish or nervous breakdown. Some individuals that meet this test are to be found entangled in the Quebec health system. The fact such individuals do not include the appellants personally is not fatal to their challenge because they come here as plaintiffs purporting to represent the public interest.

205 The Court has found a deprivation of one’s psychological integrity sufficient to ground a s. 7 claim in a range of cases. In Morgentaler, the majority held that the impugned abortion provisions seriously compromised a woman’s physical and psychological integrity in a manner that constituted an infringement of her security of the person: at pp. 56-57, per Dickson C.J. (Lamer J. concurring), at pp.104-105, per Beetz J. (Estey J. concurring); at pp. 173-74, per Wilson J. The Court subsequently held that the criminal prohibition against assisting someone to commit suicide constituted an impingement of the claimant’s physical and psychological integrity that amounted to a deprivation of the right to security of the person under s. 7; the claimant in that case was suffering from Lou Gehrig’s disease, a rapidly deteriorating condition, which results in paralysis and eventually requires invasive life-prolonging measures to be taken: Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. More recently, in New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, the Court was unanimous in saying that removal of a child from parental custody by the state pursuant to its wardship jurisdiction constituted a serious interference with the psychological integrity of the parent that deprived the parent of the security of the person.

206 It may also be that a lack of timely medical intervention will put the physical security of the patient at risk. The condition of a cardiac or cancer patient, for example, may seriously deteriorate if treatment is not available quickly.

207 As stated, the principal legal hurdle to the appellants’ Charter challenge is not the preliminary step of identifying a s. 7 interest potentially affected in the case of some Quebeckers in some circumstances. The hurdle lies in their failure to find a fundamental principle of justice that is violated by the Quebec health plan so as to justify the Court in striking down the prohibition against private insurance for what the government has identified as “insured services”.

C. Principles of Fundamental Justice

208 For a principle to be one of fundamental justice, it must count among the basic tenets of our legal system: Re B.C. Motor Vehicle, at p. 503. It must generally be accepted as such among reasonable people. As explained by the majority in Malmo-Levine, at para. 113:

The requirement of “general acceptance among reasonable people” enhances the legitimacy of judicial review of state action, and ensures that the values against which state action is measured are not just fundamental “in the eye of the beholder only”: Rodriguez, at pp. 607 and 590 (emphasis in original). In short, for a rule or principle to constitute a principle of fundamental justice for the purposes of s. 7, it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person. [First emphasis in original; subsequent emphasis added.]

See also Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4, at para. 8.

209 Thus, the formal requirements for a principle of fundamental justice are threefold. First, it must be a legal principle. Second, the reasonable person must regard
it as vital to our societal notion of justice, which implies a significant societal consensus. Third, it must be capable of being identified with precision and applied in a manner that yields predictable results. These requirements present insurmountable hurdles to the appellants. The aim of “health care to a reasonable standard within reasonable time” is not a legal principle. There is no “societal consensus” about what it means or how to achieve it. It cannot be “identified with precision”. As the testimony in this case showed, a level of care that is considered perfectly reasonable by some doctors is denounced by others. Finally, we think it will be very difficult for those designing and implementing a health plan to predict when its provisions cross the line from what is “reasonable” into the forbidden territory of what is “unreasonable”, and how the one is to be distinguished from the other.

(1) The Experts Recognized that the Potential Market for Health Services Is Almost Limitless, and the Supply Must Therefore Be Rationed Whether by Governments in the Public Sector or Insurers or Other Health Care Providers in the Private Sector

210 Much of the argument pursued by the Chief Justice and Major J., as well as by Deschamps J. in her reasons relating to the Quebec Charter, revolves around the vexing issue of waiting lists, which have notoriously fuelled major public debates and controversies.

211 The case history of the appellant Zeliotis illustrates why rationing of health services is necessary and how it works. The trial judge, having heard all the evidence, concluded that the delays Mr. Zeliotis experienced in obtaining hip surgery were caused not by excessive waiting lists but by a number of other factors, including his pre-existing depression and his indecision and unfounded medical complaints (p. 793):

[translation] The truth is that, in light of his personal medical impediments, the fact that he was already suffering from depression, his indecision and his complaints, which in many respects were unwarranted, it is hard to conclude that the delays that occurred resulted from lack of access to public health services, and in fact even Mr. Zeliotis’s complaints about delays are questionable. It was he who initially wanted a second opinion, it was his surgeon who hesitated because of his problems, and so on. Thus, his complaint to the director of professional services at the Royal Victoria Hospital . . . was not corroborated. An out-of-court examination in connection with another case is puzzling, as Mr. Zeliotis said he was in very good health . . .

Mr. Zeliotis sought a second opinion, which he was entitled to do, and this further delayed his surgery. More importantly, his physician believed that Mr. Zeliotis was not an “ideal candidate” for the surgery because he had suffered a heart attack and undergone bypass surgery earlier that year. Accordingly, neither the mere existence of waiting lists, nor the fact that certain individuals like Mr. Zeliotis feel unfairly dealt with, necessarily points to a constitutional problem with the public health system as a whole.

(a) There Is No Consensus About What Constitutes “Reasonable” Waiting Times

212 A review of the expert evidence and the medical literature suggests that there is no consensus regarding guidelines for timely medical treatment. Dr. Wright remarked:

So the issue of defining what is a reasonable waiting list is a very difficult one because if you have a hundred (100) surgeons, you have a hundred (100) opinions, it’s very difficult to come to a consensus on these questions. [A.R. p. 1186]

There are currently no national standards for timely treatment: see C. Sanmartin, et al., “Waiting for medical services in Canada: lots of heat, but little light” (2000), 162 C.M.A.J. 1305; S. Lewis, et al., “Ending waiting-list mismanagement: principles and practice” (2000), 162 C.M.A.J. 1297; N. E. Mayo, et al., “Waiting time for breast cancer surgery in Quebec” (2001), 164 C.M.A.J. 1133.

213 It is therefore convenient to look further into the expert evidence, not to dispute the existence of waiting list problems or to understate the level of public anxiety they create, but simply to illustrate the complexity of the situation and the dangers of oversimplification.

(b) The Experts Accepted by The Trial Judge Relied on More Than Just “Common Sense”

214 Our colleagues the Chief Justice and Major J. dismiss the experts accepted by the trial judge as relying on little more than “common sense” (para. 137). Although we agree that the experts offered “common sense”, they offered a good deal more. The experts heard by the trial court included Mr. Claude Castonguay, who was Quebec’s Minister of Health in 1970 (the [translation] “father of Quebec health insurance”) and who chaired the Commission of Inquiry on Health and Social Welfare, as well as a number of other public health experts, including Dr. Fernand Turcotte, a professor of medicine at Laval University, who holds degrees from the University of Montreal and Harvard and has been certified by the Royal College of Physicians and Surgeons of Canada as a specialist in community medicine; Dr. Howard Bergman, Chief of the Division of Geriatric Medicine at Montreal’s Jewish General Hospital, Director of the Division of Geriatric Medicine and a professor in the departments of Internal Medicine and Family Medicine at McGill University, and a fellow of the American Geriatrics Society and an associate professor at the University of Montreal in the department of health administration; Dr. Charles J. Wright, a physician specialized in surgery, Director of the Centre for Clinical Epidemiology & Evaluation at the Vancouver Hospital & Health Sciences Centre, faculty member of the University of British Columbia and of the British Columbia Office of Health Technology Assessment; Professor Jean-Louis Denis, a community health doctor of the University of Montreal’s [translation] “health services organization”; Professor Theodore R. Marmor, a professor of public policy and management and of political science at Yale University, who holds a PhD from Harvard University in politics and history and is a graduate research fellow at Oxford; and Dr. J. Edwin Coffey, a graduate of McGill University in medicine who specializes in obstetrics and gynecology, a fellow of the Royal College of Physicians and Surgeons of Canada and of the American College of Obstetricians and Gynecologists, and a former associate professor in the McGill University Faculty of Medicine. The respondent’s experts testified and were cross-examined. The trial judge found them to be credible and reliable. We owe deference to her findings in this respect.

215 The trial judge, having heard the evidence, concluded as follows:

[translation] . . . although some of these specialists indicated a desire to be free to obtain private insurance, none of them gave their full and absolute support to the applicants’ proposals, as they explained that it was neither clear nor obvious that a reorganization of the health system with a parallel private system would solve all the existing problems of delays and access. On the contrary, the specialists who testified remained quite circumspect about this complex and difficult question. [Emphasis added; p. 7
96.]

The exception to the consensus was the appellants’ expert, Dr. Coffey, who stated that in his opinion the development of a private insurance scheme would not affect the public health scheme. This is the argument accepted by our colleagues the Chief Justice and Major J. However on this point the trial judge observed, as on others, [translation] “that Dr. Coffey stood alone in both his expert evaluation and the conclusions he reached” (p. 808) (emphasis in original)).

216 In addition, the court was presented with a number of government reports and independent studies. They bear out the wisdom of the comment in Un avenir pour le systeme public de sante (1998), at p. 20 (“Denis Report”): [translation] “It is important that we quickly distance ourselves from a position advocating simple solutions to complex problems.”

(c) The Lack of Accurate Data

217 How serious is the waiting-list problem? No doubt it is serious; but how serious? The first major evidentiary difficulty for the appellants is the lack of accurate data. The major studies concluded that the real picture concerning waiting lists in Canada is subject to contradictory evidence and conflicting claims (Romanow Report, p. 139, and the Kirby Report, vol. 4, p. 41, and vol. 6, pp. 109-10). This can also be seen from the evidence of the experts who testified at trial in the present case (see Waiting Lists in Canada and the Potential Effects of Private Access to Health Care Services (1998), p. 7 (“Wright Report”); Le temps d’attente comme instrument de gestion du rationnement dans les services de sante du Canada (1998) (“Turcotte Report”)), and from the available literature (see Waiting Lists and Waiting Times for Health Care in Canada: More Management!! More Money? (1998) (“McDonald Report”)). At trial, Dr. Wright also discounted the value of random opinion surveys:

The information is based on no formal structured data collection of any kind and has no credibility whatever with any health service researcher or epidemiologist.

(Wright Report, p. 8)

218 In a commentary for the Canadian Medical Association Journal, S. Lewis, et al. observed:

The waiting-list “nonsystem” in Canada is a classic case of forced decision-making in the absence of good management information. There is a surfeit of nonstandardized data and a dearth of usable, policy-oriented information about waiting lists. The most serious consequence is that information and management defects are almost always prematurely diagnosed as financial shortages. [p. 1299]

219 Professor Marmor also subscribed to the view that waiting lists cannot serve as a “simple indicator” of a failing health care system (Expert Witness Report (1998), at p. 11 (“Marmor Report”)) in part because studies of waiting lists have demonstrated that up to one third of patients on lists no longer need to be on them because the procedure has already been performed elsewhere; the patient has already been admitted on an emergency basis; the patient no longer wishes the procedure to be performed; the procedure is no longer medically necessary; the patient has already been called in to have the procedure but refused for personal reasons or due to inconvenient timing; or the patient is on multiple waiting lists at different hospitals thereby inflating numbers (Wright Report, at pp. 7-8).

(d) The Impact of Waiting Times on Individual Patients

220 It is even more difficult to generalize about the potential impact of a waiting list on a particular patient. The most comprehensive overview of the literature on waiting lists available to the trial judge was the McDonald Report, p. 14. It presents a review of studies of patients’ experiences while awaiting surgery. That review prompted the authors to conclude, among other things, that patients awaiting care for a range of procedures – including knee and hip replacement, cardiac care and cataract care – may experience “emotional strains such as increased levels of anxiety due to a range of factors including lack of information and uncertainty regarding the timeline for care” (p. 267 (emphasis added)) or the “normal” anxiety or apprehension felt by anyone faced with a serious surgical procedure. In other words, waiting lists may be serious in some cases, but in how many cases and how serious?

(e) The Need to Ration Services

221 Waiting times are not only found in public systems. They are found in all health care systems, be they single-tier private, single-tier public, or the various forms of two-tier public/private (see, e.g., Kirby Report, vol. 1, p. 111). Waiting times in Canada are not exceptional (see Kirby Report, vol. 4, p. 41). The consequence of a quasi-unlimited demand for health care coupled with limited resources, be they public or private, is to ration services. As noted by the Arpin Report, Constats et recommandations sur les pistes e explorer: Synthese, at p. 37:

[translation] In any health care system, be it public or private, there is an ongoing effort to strike the proper balance. . . . For a public system like our own, waiting lists, insofar as priority is given to urgent cases, do not in themselves represent a flaw in the system. They are the inevitable result of a public system that can consequently offer universal access to health services within the limits of sustainable public spending. Thus, to a certain extent, they play a necessary role.

222 The expert witnesses at trial agreed that waiting lists are inevitable (Expertise deposee par Howard Bergman (1998), p. 5 (“Bergman Report”); Marmor Report, p. 11). The only alternative is to have a substantially overbuilt health care system with idle capacity (Wright Report, p. 6). This is not a financially feasible option, in the public or private sector.

(f) Who Should Be Allowed to Jump the Queue?

223 In a public system founded on the values of equity, solidarity and collective responsibility, rationing occurs on the basis of clinical need rather than wealth and social status (see e.g., Turcotte Report, at pp. 4 and 10; Denis Report, p. 11; Clair Report, p. 135; Rapport de la Commission d’enquete sur les services de sante et les services sociaux (1988), at p. 651 (“Rochon Report”)). As a result, there exists in Canada a phenomenon of “static queues” whereby a group of persons may remain on a waiting list for a considerable time if their situation is not pressing. Patients who are in greater need of health care are prioritized and treated before those with a lesser need (Kirby Report, vol. 5, at pp. 56-57; see also Turcotte Report, at p. 12). In general, the evidence suggests that patients who need immediate medical care receive it. There are of course exceptions, and these exceptions are properly the focus of controversy, but in our view they can and should be addressed on a case-by-case basis.

(g) Availability of Public Funding for Out-of-Province Medical Care

224 Section 10 of the Health Insurance Act provides that in certain circumstances Quebeckers will be reimbursed for the cost of “insured services” rendered outside Quebec but in Canada (Regulation respecting the application of the Health Insurance Act, R.R.Q. 1981, s. 23.1), or outside Canada altogether (s. 23.2). There is no doubt that the power of reimbursement is exercised sparingly, and on occasion unlawfully; see for example Stein v. Tribunal administratif du Quebec, [1999] R.J.Q. 2416 (S.C.). One of the difficulties in assessing the effectiveness of this individual remedy is that neither Dr. Chaoulli nor Mr. Zeliotis is before the C
ourt with an actual medical problem. (The trial judge, as stated, dismissed Mr. Zeliotis’ personal health complaints as unsubstantiated.) The reimbursement scheme for out-of-province services exists as a form of safety valve for situations in which Quebec facilities are unable to respond. As Stein shows, there are lapses of judgment, as there will be in the administration of any government plan. The existence of the individual remedy, however, introduces an important element of flexibility, if administered properly.

(h) The Evidence Relied on by the Chief Justice and Major J. Did Not Satisfy the Trial Judge and Is Not, in Our View, Persuasive

225 The Chief Justice and Major J. cite Dr. Lenczner as an authority at para. 114 but the trial judge pointed out that Dr. Lenczner had not been qualified as an expert witness and counsel for Mr. Zeliotis agreed (A.R., vol. 11, at pp. 330-31). Dr. Lenczner’s comments were largely anecdotal and of little general application. He described a patient who was a golfer, and thus lost his access to his golf membership for that season. He also stated that a tear can increase over time and get to the point of being irreparable, but no studies or general evidence was adduced to show the incidence of such cases in Quebec. Our colleagues comment at para. 112 that “a person with coronary disease is [translation] ‘sitting on a bomb’ and can die at any moment”. This is true, of course. He or she can die at home, or in an ambulance on the way to a hospital. Again, our colleagues write, “patients die while on waiting lists” (para. 112). This, too, is true. But our colleagues are not advocating an overbuilt system with enough idle capacity to eliminate waiting lists, and such generalized comments provided no guidance for what in practical terms would constitute an appropriate level of resources to meet their suggested standard of “public health care of a reasonable standard within reasonable time” (para. 105).

226 We have similar concerns about the use made by the appellants of various reports in connection with other OECD countries. These “country” reports were included in an Interim Kirby Report but not in its final version. The Final Kirby Report’s recommendation was to stick with a single-tier system. We think the Court is sufficiently burdened with conflicting evidence about our own health system without attempting a detailed investigation of the merits of trade-offs made in other countries, for their own purposes. A glance at the evidence shows why.

227 Our colleagues the Chief Justice and Major J. state, at para. 142, that in Sweden only a very small minority of the population actually utilize private insurance. Yet, the Interim Kirby Report goes on to take note of more recent trends:

The growing rate of the number of insured, or people on private health care insurance, is some 80% or something like that now. It is growing very fast due to the normal waiting lists and the problems within the system today. [Emphasis in original.]

(Interim Kirby Report, vol. 3, at pp. 31-32)

228 With respect to the United Kingdom, the Interim Kirby Report states:

One of the major reasons given by people who take private insurance is they want the peace of mind of being able to have elective operations for themselves or their families more quickly or at more convenient times than if they must depend on the National Health Service. That is seen, of course, as a cause of unfairness, which is one of the reasons that the government is committed to bringing down waiting times for National Health Service patients as rapidly as it can. [Emphasis in original.]

(Interim Kirby Report, vol. 3, at p. 38)

In fact, in the actual conclusion of vol. 3 of the Interim Kirby Report on Health Care Systems in Other Countries, the report’s authors state (at p. 73):

Canadians may find some consolation in the fact that Canada is not alone in confronting complex health care issues. Everywhere in the industrialized world health care policy is thoroughly intertwined with the political, social, and even cultural life of each country. As such, every health care system is unique. Therefore, no single international model constitutes a blueprint for solving the challenges confronted by the Canadian health care system. However, experts told the Committee that careful consideration must be given to the repercussions in Canada of introducing, on a piecemeal basis, changes undertaken in other countries.

229 We are not to be taken as disputing the undoubted fact that there are serious problems with the single-tier health plan in Canada. Our point is simply that bits of evidence must be put in context. With respect, it is particularly dangerous to venture selectively into aspects of foreign health care systems with which we, as Canadians, have little familiarity. At the very least such information should be filtered and analysed at trial through an expert witness.

230 Taking the good with the bad, the Final Kirby Report recommended continuation of a single-tier health system (as did the Romanow Report). The authors of the Kirby Report were fully aware of the extracts from their interim report relied upon by our colleagues McLachlin C.J. and Major J., yet they specifically rejected two-tier health care:

Repeated public opinion polling data have shown that having to wait months for diagnostic or hospital treatment is the greatest concern and complaint that Canadians have about the health care system. The solution to this problem is not, as some have suggested, to allow wealthy Canadians to pay for services in a private health care institution. Such a solution would violate the principle of equity of access. The solution is the care guarantee as recommended in this report. [Emphasis added.]

(Kirby Report, Vol. 6 at p. 321)

We thus conclude that our colleagues’ extracts of some of the tour d’horizon data published in the Interim Kirby Report do not displace the conclusion of the trial judge, let alone the conclusion of the Kirby Report itself. Apart from everything else, it leaves out of consideration the commitment in principle in this country to health care based on need, not wealth or status, as set out in the Canada Health Act.

(2) Arbitrariness

231 Our colleagues the Chief Justice and Major J. take the view that a law which arbitrarily violates life or security of the person is unconstitutional. We agree that this is a principle of fundamental justice. We do not agree that it applies to the facts of this case.

232 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: Rodriguez, at pp. 619-20; Malmo-Levine, at para. 135. As Sopinka J. explained in Rodriguez, at pp. 594-95:

Where the deprivation of the right in question does little or nothing to enhance the state’s interest (whatever it may be), it seems to me that a breach of fundamental justice will be made out, as the individual’s rights will have been deprived for no valid purpose. … It follows that before one can determine that a statutory provision is contrary to fundamental justice, the relationship between the provision and the state interest must be considered. One cannot conclude that a particular limit is arbitrary because (in the words of my colleague, McLachlin J. at pp. 619-20) “it bears no relation to, or is inconsistent with, the objective that lies behind the legislation” without considering the state interest and the societal concerns which it reflects. [Emphasis added.]

233 We agree with our colleagues the Chief Justice and Major J. that a law is arbitrary if “it bears no relation to, or is inconsistent with, the objective that lies behind [the legislation]” (para. 130). We do not agree with the Chief Justice and Major J. that the prohibition against private health insurance “bears no relation to, or is inconsistent with” the preservation of access to a health system based on need rather than wealth in accordance with the Canada Health Act. We also do not agree with our colleagues’ expansion of the Morgentaler principle to invalidate a prohibition simply because a court believes it to be “unnecessary” for the government’s purpose. There must be more than that to sustain a valid objection.

234 The accepted definition in Rodriguez states that a law is arbitrary only where “it bears no relation to, or is inconsistent with, the objective that lies behind the legislation”. To substitute the term “unnecessary” for “inconsistent” is to substantively alter the meaning of the term “arbitrary”. “Inconsistent” means that the law logically contradicts its objectives, whereas “unnecessary” simply means that the objective could be met by other means. It is quite apparent that the latter is a much broader term that involves a policy choice. If a court were to declare unconstitutional every law impacting “security of the person” that the court considers unnecessary, there would be much greater scope for intervention under s. 7 than has previously been considered by this Court to be acceptable. (In Rodriguez itself, for example, could the criminalization of assisted suicide simply have been dismissed as “unnecessary”? As with health care, many jurisdictions have treated euthanasia differently than does our Criminal Code.) The courts might find themselves constantly second-guessing the validity of governments’ public policy objectives based on subjective views of the necessity of particular means used to advance legitimate government action as opposed to other means which critics might prefer.

235 Rejecting the findings in the courts below based on their own reading of the evidence, our colleagues the Chief Justice and Major J. state (at para. 128):

We are of the opinion that the evidence before the trial judge supports a finding that the impugned provisions are arbitrary and that the deprivation of life and security of the person that flows from them cannot therefore be said to accord with the principles of fundamental justice.

We note that our colleagues refer to the evidence before the trial judge rather than the view taken of that evidence by the trial judge. The trial judge reached a contrary conclusion on the facts, and deference is due to her view of that evidence; see Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33. In any event, with respect, we accept the contrary conclusions of the trial judge and the Quebec Court of Appeal. We approach the issue of arbitrariness in three steps:

(i) what is the “state interest” to be protected?

(ii) what is the relationship between the “state interest” thus identified and the prohibition against private health insurance?

(iii) have the appellants established that the prohibition bears no relation to, or is inconsistent with, the state interest?

We will address each question in turn.

(a) What Is the “State Interest” Sought To Be Protected?

236 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. Quebec (along with the other provinces and territories) subscribes to the policy objectives of the Canada Health Act, which include (i) the equal provision of medical services to all residents, regardless of status, wealth or personal insurability, and (ii) fiscal responsibility. An overbuilt health system is seen as no more in the larger public interest than a system that on occasion falls short. The legislative task is to strike a balance among competing interests.

237 The appellants do not challenge the constitutional validity of the objectives set out in the Canada Health Act. Thus our job as judges is not to agree or disagree with these objectives but simply to determine whether the means adopted by Quebec to implement these objectives are arbitrary.

(b) What Is the Relationship Between the “State Interest” thus Identified and the Prohibition Against Private Health Insurance?

238 The relationship lies both in principle and in practicality.

239 In principle, Quebec wants a health system where access is governed by need rather than wealth or status. Quebec does not want people who are uninsurable to be left behind. To accomplish this objective endorsed by the Canada Health Act, Quebec seeks to discourage the growth of private-sector delivery of “insured” services based on wealth and insurability. We believe the prohibition is rationally connected to Quebec’s objective and is not inconsistent with it.

240 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.

241 The trial judge put her conclusion this way (at p. 827):

[translation] The Health Insurance Act [HEIA] and the Hospital Insurance Act [HOIA] are pieces of legislation whose purpose is to create and maintain a public health care plan open to all residents of Quebec. These enactments are intended to promote the overall health of all Quebeckers without discrimination based on economic circumstances. In short, they constitute a government action whose purpose is to promote the well-being of all the people of the province.

Plainly, s. 15 HEIA and s. 11 HOIA erect economic barriers to access to private health care. However, these measures are not really intended to limit access to health care; rather, their purpose is to prevent the establishment of a parallel private system. These provisions are based on the fear that the establishment of a private health care system would rob the public sector of a significant portion of the available health care resources. The Quebec government enacted s. 15 HEIA and s. 11 HOIA to guarantee that virtually all the existing health care resources in Quebec would be available to all the people of Quebec. That is clear.

The purpose of the impugned provisions is to guarantee equal and adequate access to health care for all Quebeckers. The enactment of s. 15 HEIA and s. 11 HOIA was motivated by considerat
ions of equality and human dignity, and it is therefore clear that there is no conflict with the general values expressed in the Canadian Charter or in the Quebec Charter of human rights and freedoms. [Emphasis in original.]

We agree.

(c) Have the Appellants Established that the Prohibition Bears No Relation to, or Is Inconsistent with, the State Interest?

242 The trial judge considered all the evidence and concluded that the expansion of private health care would undoubtedly have a negative impact on the public health system (at p. 827):

[translation] The evidence has shown that the right of access to a parallel private health care system claimed by the applicants would have repercussions on the rights of the population as a whole. We cannot bury our heads in the sand. The effect of establishing a parallel private health care system would be to threaten the integrity, proper functioning and viability of the public system. Section 15 HEIA and s. 11 HOIA prevent this from happening and secure the existence in Quebec of a public health care system of high quality.

As well, the Court finds that s. 15 HEIA and s. 11 HOIA are not overbroad. The only way to guarantee that all the health care resources will benefit all Quebeckers without discrimination is to prevent the establishment of a parallel private health care system. That is in fact the effect of the impugned provisions in the case at bar. [Emphasis in original.]

These findings were explicitly adopted by Forget J.A. of the Court of Appeal and implicitly endorsed by the other judges of that court. The trial judge relied on the reports available to her in rejecting the appellants’ constitutional challenge, and none of the material that has since been added (such as the Romanow Report) changes or modifies the correctness of her conclusion, in our view. We therefore agree with the trial judge and the Quebec Court of Appeal that the appellants failed to make out a case of “arbitrariness” on the evidence. Indeed the evidence proves the contrary. We now propose to review briefly some of the evidence supporting the findings of the trial judge.

(i) A Parallel Private Regime Will Have a Negative Impact on Waiting Times in the Public System

243 The appellants’ argument in favour of a parallel private regime is one of a “win/win” prediction; i.e. that waiting times in the public regime will be reduced if those who can afford private insurance leave the public waiting lists in order to receive private health care. However, the Kirby Report states flatly that “allowing a private parallel system will … make the public waiting lines worse” (vol. 4, at p. 42 (emphasis added)). This conclusion is supported by the Romanow Report (p. 139: “[P]rivate facilities may improve waiting times for the select few … but … worse[n them for the many]”), the Turcotte Report (p.13-14), and the expert witnesses at trial (Marmor Report; Wright Report; Bergman Report).

244 A study of a Manitoba pilot project found that in the case of cataract operations, public health patients who went to surgeons working in both private and public clinics waited far longer than patients who went to surgeons working only in the public system. The same private sector patient preference is evident from other studies and experience: See Wright Report, at p. 17; Bergman Report, at p. 8; J. Hurley, et al., Parallel Private Health Insurance in Australia: A Cautionary Tale and Lessons for Canada (2002); C. DeCoster, L. MacWilliam and R. Walld, Waiting Times for Surgery: 1997/98 and 1998/99 Update (2000); W. Armstrong, The Consumer Experience with Cataract Surgery and Private Clinics in Alberta: Canada’s Canary in the Mine Shaft (2000); Canadian Health Services Research Foundation, Mythbusters: Myth: A parallel private system would reduce waiting times in the public system (2001); Le financement prive des services medicaux et hospitaliers (2003), p. 30.

245 The Australian experience, as reported by Dr. Wright, is that at present delays in the Australian public system are caused largely by surgeons’ reluctance to work in public hospitals and by their encouragement of patients to use the private system on a preferential basis (Wright Report, at p. 15; Hurley, p. 17).

246 The same is true for the United Kingdom, which has a two-tier health system where physicians who want to practise privately are required to practise a minimum number of hours in the public system. There, an Audit Commission of the National Health Service reported that surgeons do on average a third to half again as many operations for private fees as they do in the public system, and that they spend less time than they are contracted for working in the public system in order to conduct private practice (Wright Report, at p. 16; see also Le financement prive des services medicaux et hospitaliers, p. 30).

247 Both the Romanow Report and the Kirby Report examine the current shortage of health care professionals in Canada (Kirby Report, vol. 2, at pp. 75, vol. 4, at pp. 7 and 107; Romanow Report, at pp. 92), and in rural parts of Canada in particular (Kirby Report, vol. 2, at p. 137; Romanow Report, at pp. 166). Dr. Wright testified that the experience in all jurisdictions with two-tier health care systems (e.g., the United Kingdom, Australia, New Zealand and Israel) demonstrates a diversion of energy and commitment by physicians and surgeons from the public system to the more lucrative private option (Wright Report, at pp. 15 and 22). This evidence is supported by the Romanow Report (at pp. 92), the Kirby Report (vol. 1, at p. 105) and a 2003 Quebec report (Le financement prive des services medicaux et hospitaliers, at p. 6). See also Marmor Report (at p. 5) and Denis Report (at p. 14). Furthermore, the experts testified that there are no firm data whatsoever showing that a parallel private system would enhance potential for recruiting highly trained specialists (see Wright Report, at p. 19).

(ii) The Impact of a Parallel Private Regime on Government Support for a Public System

248 The experience in other OECD countries shows that an increase in private funding typically leads to a decrease in government funding (Le financement prive des services medicaux et hospitaliers, at p. 7; Marmor Report, at p. 6). At trial, Dr. Bergman explained that a service designed purely for members of society with less socio-economic power would probably lead to a decline in quality of services, a loss of political support and a decline in the quality of management (Bergman Report, at pp. 6-7; see also Marmor Report, at pp. 6 and 8; Denis Report, at p. 5).

(iii) Private Insurers May “Skim the Cream” and Leave the Difficult and Costly Care to the Public Sector

249 The evidence suggests that parallel private insurers prefer to siphon off high income patients while shying away from patient populations that constitute a higher financial risk, a phenomenon known as “cream skimming” (Wright Report, at p. 17; Kirby Report, vol. 6, at p. 301). The public system would therefore carry a disproportionate burden of patients who are considered “bad risks” by the private market by reason of age, socio-economic conditions, or geographic location.

250 Similarly, private insurers may choose to avoid “high-risk” surgery. The public system is like
ly to wind up carrying the more complex high acuity end of the health care spectrum and, as a consequence, increase rather than reduce demand (proportionately) in the public system for certain services (Wright Report, at p. 18).

(iv) The U.S. Two-Tier System of Health Coverage

251 Reference has already been made to the U.S. health care system, which is the most expensive in the world, even though by some measures Americans are less healthy than Canadians (Kirby Report, vol. 1, at p. 101, and vol. 4, at p. 28; Romanow Report, p. 14). The existence of a private system has not eliminated waiting times. The availability, extent and timeliness of health care is rationed by private insurers, who may determine according to cost, not need, what is “medically necessary” health care and where and when it is to occur (Kirby Report, vol. 3, at p. 48; Denis Report, pp. 12 and 16). Whether or not the private system in the U.S. is better managed is a matter of debate amongst policy analysts. The point here is simply that the appellants’ faith in the curative power of private insurance is not borne out by the evidence put before the Court.

(v) Moreover the Government’s Interest in Fiscal Responsibility and Efficiency May Best Be Served by a Single-Tier System

252 The expert witnesses at trial (other than the appellants’ witness Dr. Coffey) and the Romanow Report and the Kirby Report all agree that the most cost-effective method of providing health care is through public single-tier financing. Dr. Wright testified at trial that the “public administration criterion [of the Canada Health Act] renders the Canadian health care system one of the most efficient in terms of the ratio of productivity to administrative costs in the world” (Wright Report, at p. 2; see also Marmor Report, at p. 9; Denis Report, at p. 8; Kirby Report, vol. 3, at p. 67, and vol. 4, at p. 23; Romanow Report, at p. 43; The World Health Report 1999: Making a Difference (1999); Report of the National Advisory Council on Aging, The NACA Position on the Privatization of Health Care (1997), at p. 14).

253 In particular, much is saved in a single-tier public system as a result of lower administrative costs and advertising expenses, the absence of overhead and the fact that the risk is spread over the entire population (see Romanow Report, at pp. 60ff; Kirby Report, vol. 4, at p. 31).

254 Not only is there “no evidence [that the] adoption [of a private health care system] would produce a more efficient, affordable or effective system” (Romanow Report, at p. xxiv), there is also no clear evidence that private surgical services are more efficient or less costly (Wright Report, at p. 14; Romanow Report, at p. 8; Le financement prive des services medicaux et hospitaliers, at pp. 23 and 33).

255 With respect to the impact on the financial resources of the public system, the experts testified that the introduction of a parallel private health regime would likely increase the overall cost of health care to Canadians (Marmor Report, at pp. 8 and 10; Bergman Report, at p. 7; Turcotte Report, at p. 11; see also Le financement prive des services medicaux et hospitaliers, at p. 24).

(vi) Conclusion on “Arbitrariness”

256 For all these reasons, we agree with the conclusion of the trial judge and the Quebec Court of Appeal that in light of the legislative objectives of the Canada Health Act it is not “arbitrary” for Quebec to discourage the growth of private sector health care. Prohibition of private health insurance is directly related to Quebec’s interest in promoting a need-based system and in ensuring its viability and efficiency. Prohibition of private insurance is not “inconsistent” with the state interest; still less is it “unrelated” to it.

257 In short, it cannot be said that the prohibition against private health insurance “bears no relation to, or is inconsistent with” preservation of a health system predominantly based on need rather than wealth or status, as required by the Rodriguez test, at pp. 594-95.

258 As to our colleagues’ dismissal of the factual basis for Quebec’s legislative choice, the public has invested very large sums of money in a series of authoritative reports to analyse health care in this country and in other countries. The reports uniformly recommend the retention of single-tier medicine. People are free to challenge (as do the appellants) the government’s reliance on those reports but such reliance cannot be dismissed as “arbitrary”. People are also free to dispute Quebec’s strategy, but in our view it cannot be said that a single-tier health system, and the prohibition on private health insurance designed to protect it, 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.

(3) The Morgentaler Case Is Not Applicable

259 Our colleagues the Chief Justice and Major J. rely substantially on comments made by Beetz J. (concurred in by Estey J.) in Morgentaler when he invoked a principle of “manifest unfairness”. Nowhere in his analysis pertaining to the principles of fundamental justice did Beetz J. use the words “arbitrary” or “arbitrariness”. Moreover the context for his remarks was the prospect of a criminal prosecution of a pregnant woman. Section 251(2) of the Criminal Code stated that a pregnant woman who used “any means or permit[ed] any means to be used” for the purpose of procuring her own miscarriage was guilty of an indictable offence punishable with imprisonment for two years. Parliament provided a defence if the continued pregnancy would or would be likely to, in the opinion of a therapeutic abortion committee, “endanger her life or health” (s. 251(4)©). The Court struck down the criminal prohibition because the prohibition was designed to operate only with the statutory defence, and the Court found that in practice these committees operated unevenly and that the statutory scheme “contain[ed] so many potential barriers to its own operation that the defence it create[ed would] in many circumstances be practically unavailable to women who would prima facie qualify …” (at pp. 72-73, per Dickson C.J.). For Beetz J., too, a key issue was that a significant proportion of Canada’s population is not served by hospitals in which therapeutic abortions could lawfully be performed (pp. 94-95).

260 At page 81, Beetz J. went on to say that “s. 7 of the Charter must include a right of access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction” (emphasis added). The context of this appeal is entirely different. This case, on the contrary, invites the application of the dictum of Dickson C.J. in Morgentaler “that the courts should avoid ‘adjudication of the merits of public policy’” (p. 53).

261 There were two aspects of s. 251 which caused Beetz J. particular concern. Firstly, s. 251 required that abortions be performed in an “eligible hospital”, and not in clinics like those operated by Dr. Morgentaler (p. 114)
. This limitation, he found, had no logical connection with the state’s avowed interest “in the protection of the foetus” (p. 115), i.e. the termination of the foetus would be the same wherever the abortion was performed. Secondly, Beetz J. objected to “the requirement that the committee come from the accredited or approved hospital in which the abortion is to be performed” (p. 119). He said:

It is difficult to see a connection between this requirement and any of the practical purposes for which s. 251(4) was enacted. It cannot be said to have been adopted in order to promote the safety of therapeutic abortions or the safety of the pregnant woman. Nor is the rule designed to preserve the state interest in the foetus. [p. 119]

262 There is, we think, a world of difference between the sort of statutory analysis conducted by Beetz J. in Morgentaler and the re-weighing of expert evidence engaged in by our colleagues the Chief Justice and Major J. in this case. Having established that the s. 251 requirements had nothing to do with the avowed state interest in the protection of the foetus, all that remained in Morgentaler was to show that these requirements were inconsistent with the competing state interest in preserving the life and health of the mother. We see no parallel between the analysis of Beetz J. in Morgentaler and what is asked of the Court by the appellants in this case.

263 On the contrary, given its goal of providing necessary medical services to all Quebec residents based on need, Quebec’s determination to protect the equity, viability and efficiency of the public health care system is rational. The chosen means are designed to further the state interest and not (as in Morgentaler) to contradict it.

264 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 way 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. Judicial intervention at this level on a case-by-case basis is preferable to acceptance of the appellants’ global challenge to the entire single-tier health plan. It is important to emphasize that rejection of the appellants’ global challenge to Quebec’s health plan would not foreclose individual patients from seeking individual relief tailored to their individual circumstances.

(4) Conclusion Under Section 7 of the Canadian Charter

265 For the foregoing reasons, even accepting (as we do) the trial judge’s conclusion that the claimants have established a deprivation of the life and security of some Quebec residents occasioned in some circumstances by waiting list delays, the deprivation would not violate any legal principle of fundamental justice within the meaning of s. 7 of the Canadian Charter. On that point, too, we share the opinion of the trial judge and the Quebec Court of Appeal, as previously mentioned.

D. The Appelants’ Challenge Under The Quebec Charter

266 The Quebec Charter is a major quasi-constitutional instrument. Our colleague Deschamps J. finds a violation of s. 1, which provides:

1. Every human being has a right to life, and to personal security, inviolability and freedom.

He also possesses juridical personality.

267 Section 1 of the Quebec Charter must be read with s. 9.1:

9.1 In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Quebec.

In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.

268 The factual basis of the opinion of our colleague Deschamps J. seems to rest largely on her view of the problem of waiting lists in Quebec, a matter we have already discussed, commencing at para. 210.

269 As to the legal principles applicable under the Quebec Charter, our Court in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, noted a functional analogy between s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter. However, s. 9.1 has the added feature of placing on the claimant the obligation to exercise Quebec Charter rights with “proper” regard to “democratic values, public order and the general well-being of the citizens of Quebec”. These limitations have particular relevance to the public health system context of the present claim.

270 Within the legislative jurisdiction of the National Assembly of Quebec, absent an express provision to the contrary, other statutes may not derogate from its ss. 1-38 (s. 52). It was adopted and came into force several years before the Canadian Charter. It applies not only to state action but also to many forms of private relationships. It often covers the same grounds as the Canadian Charter. Nevertheless, it remains distinct in its drafting and methodology (A. Morel, “La coexistence des Chartes canadienne et quebecoise: problemes d’interaction” (1986), 17 R.D.U.S. 49, at pp. 80-81; Godbout v. Longueuil (Ville de), [1995] R.J.Q. 2561 (C.A.), at p. 2568, per Baudouin J.A.).

271 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. As stated earlier, it reads:

1. Every human being has a right to life, and to personal security, inviolability and freedom.

He also possesses juridical personality.

272 Under s. 1 of the Quebec Charter, as at the first stage of a s. 7 analysis, the claimant bears the burden of establishing, on a balance of probabilities, that the impugned law infringes his or her protected rights and interests. If such a claim is made out, the focus of the analysis may shift to s. 9.1 of the Quebec Charter in order to determine whether the claimed exercise of the right is made with due regard for “democratic values, public order and the general well-being of the citizens of Quebec”.

273 In our view, 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 Quebec”, who are the designated beneficiaries of the health plan, and in particular for the well-being of the less advantaged Quebeckers.

274 Those who seek private health insurance are those who can afford it and can qualify for it. They will be the more advantaged members of society. They are differentiated from the general population, not by their health problems, which are
found in every group in society, but by their income status. We share the view of Dickson C.J. that the Charter should not become an instrument to be used by the wealthy to “roll back” the benefits of a legislative scheme that helps the poorer members of society. He observed in Edwards Books, at p. 779:

In interpreting and applying the Charter I believe that the courts must be cautious to ensure that it does not simply become an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons.

The concern, of course, is that once the health needs of the wealthier members of society are looked after in the “upper tier”, they will have less incentive to continue to pressure the government for improvements to the public system as a whole.

275 The comments of Dickson C.J. are even more relevant to the Quebec Charter given its broad scope and its potential application to a wide range of private relationships.

276 This is not a case, in our view, where the onus of proof determines the outcome. The evidence amply supports the validity of the prohibition of private insurance under the Quebec Charter. The objectives are compelling. A rational connection is demonstrated. The decision boils down to an application of the minimal impairment test. In respect of questions of social and economic policy, this test leaves a substantial margin of appreciation to the Quebec legislature. Designing, financing and operating the public health system of a modern democratic society like Quebec remains a challenging task. It calls for difficult choices. In the end, we find that the choice made a generation ago by the National Assembly of Quebec remains within the range of options that are justifiable under s. 9.1. Shifting the design of the health system to the courts is not a wise choice.

277 In this respect, we should bear in mind that the legislative provisions challenged under s. 1 concern all citizens of Quebec. They address concerns shared by all and rights belonging to everyone. The legislative solution affects not only individuals but also the society to which all those individuals belong. It is a problem for which the legislature attempted to find a solution that would be acceptable to everyone in the spirit of the preamble of the Quebec Charter:

WHEREAS every human being possesses intrinsic rights and freedoms designed to ensure his protection and development;

Whereas all human beings are equal in worth and dignity, and are entitled to equal protection of the law;

Whereas respect for the dignity of the human being and recognition of his rights and freedoms constitute the foundation of justice and peace;

Whereas the rights and freedoms of the human person are inseparable from the rights and freedoms of others and from the common well-being;

278 The evidence reviewed above establishes that the impugned provisions were part of a system which is mindful and protective of the interests of all, not only of some.

279 We would dismiss the appeal.

APPENDIX A

Health Insurance Act, R.S.Q., c. A-29:

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 Quebec or to another person on his behalf.

. . .

Hospital Insurance Act, R.S.Q., c. A-28

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 if dependent upon the length of time the resident is a patient in a facility maintained by an institution contemplated in section 2.

(2) This section does not apply for such time after a person arrives in Quebec as a resident as he is not an insured person.

. . .

Appeal allowed with costs, Binnie, LeBel and Fish JJ. dissenting.

Jacques Chaoulli, on his own behalf.