...system contravened the Canadian Charter of Rights and Freedoms (2) and/or the Quebec Charter of Human Rights and Freedoms. (3) The Court divided on this question, rendering three separate decisions. The majority of the Court found that the legislative provisions unjustifiably infringed rights protected by the Quebec Charter; consequently, the provisions were struck down. Additionally, six of the seven judges were evenly split on whether the impugned legislation contravened the Canadian Charter. (4)

In deciding on the legal question before it, the Court was performing an act of great moment that, unavoidably, would have ramifications in an ongoing public policy drama. Canadian society has been divided on the policy issue intersected by this legal decision, and quite passionately. It has powerful symbolic and dramatic elements of near epic proportions. Fundamental values connected to the publicly funded health system--and indeed the delicate, precarious and ambiguous balance of values hitherto constitutive of Canadian society--were engaged and at stake.

The Court was well aware of the stakes in the broader policy drama, and aware of the thorny ancillary issues raised by this case concerning the proper role of the Court in democratic society vis-a-vis, and in deference to, the role of the legislature and the executive. Yet, as Chief Justice McLachlin and Justice Major (Bastarache J. concurring) noted, the mere fact that the legal question "may have policy ramifications does not permit" the Court "to avoid answering it." (5)

In discussing the role played by the judicial vis-a-vis the legislative branch, Justice Deschamps approvingly quotes legal scholar K. Roach: "Judges can add value to societal debates about justice by listening to claims of injustice and by promoting values and perspectives that may not otherwise be taken seriously in the legislative process." (6) Whether judges should be "promoting values and perspectives" at all--and if they should, which or whose values and perspectives--is debatable of course. (7) That judges do promote "values and perspectives" is a less controversial proposition; at the very least, they reflect or exhibit them. We believe that, in this latter sense, the division in the Court mirrors "values and perspectives" that have been in tension in Canadian health policy, and more broadly in Canadian society. Using the division in the Court to clarify this tension can indeed add value to the "social debate" about health policy, albeit not quite in the way intended by K. Roach.

We argue that the division in the Court about the application of the Quebec and Canadian Charters was significantly rooted in a subordinate division about the purpose behind the impugned legislation. The determination of the legislation's purpose or objective was an essential element of the legal analysis. In order to establish that the Canadian Charter right (s.7) had been infringed it was necessary to determine that the measures in the Quebec legislation were not arbitrary. For the three judges in the majority, the measures would be arbitrary if they were not rationally connected to the purpose sought to be achieved and for the three in the minority, they would be arbitrary if the measures bore no relation to the purpose sought to be achieved. Once it had been established that the legislation infringed guaranteed rights then the legislation could only be 'saved' under the Quebec Charter or found to be constitutional under the Canadian Charter if the government could show that the legislation had a pressing and substantial objective or purpose and used means that were rationally connected to meeting that objective.

Although not explicitly acknowledged or frontally addressed in the Court, the majority and the minority construed the purpose of the legislation prohibiting private insurance quite differently. For the majority, the purpose was to preserve the quality of the public health system. The purpose thus identified, the pivotal question was reduced, essentially, to whether removal of the prohibition against private insurance would cause a loss of quality or integrity in the publicly funded system.

The minority, in addition to construing the purpose in practical terms of preserving the quality of the public system (and disagreeing with the majority about the hypothesized effects of private insurance on the public system), also construed the purpose in principle, in terms of ensuring equality in the matter of access to health care across society. With respect to equality as a ground for prohibiting private insurance, the empirical question of whether private insurance would undermine the public system is beside the point. Regardless of what its impact on the public system might be--positive, negative or neutral--private insurance, in principle, undermines the equality purpose.

That the Justices differently construed this purpose is not surprising. It has been unclear and ambiguous in health policy, harboring an important values tension or ambivalence with respect to equality. In dividing in the construal of the purpose of the legislation as it did, the Court mirrored, reproduced and writ large the poles of this values tension. And on the way to judgment about the legal issue concerning whether the legislation prohibiting private insurance infringed protected rights, the Court also settled, indirectly and by interpretative flat as it were, the subordinate policy issue about the purpose of the prohibition.

The ruling in Chaoulli will surely have what McLachlin C.J.C. and Major J. gently call "policy ramifications." (8) Whether it will "precipitate a seismic shift in health policy" (9), as Justices Binnie and LeBel (Fish J. concurring) suppose, will depend on what governments and other stakeholders do in response as they accommodate their agendas to the decision and accommodate the decision--spin it and influence its interpretation in policy analysis and debate--to their agendas. Our contribution is at some remove from these heated policy debates: what we seek to show and what was not remarked upon in the judgment itself and has not been remarked upon in the academic literature to date, is that underlying the legal reasoning of the justices there are fundamentally competing conceptions of equality. (10)

II. The Facts of the Case and the Fundamentals of the Decision

Dr. Chaoulli and Mr. Zeliotis challenged the validity of legislative provisions (11) that prohibited private health care insurance for physician and hospital services provided by the publicly funded system, claiming that these provisions violated rights found in the Quebec and Canadian Charters. Two lower courts had ruled against Chaoulli and Zeliotis and upheld the provisions; (12) these decisions were being appealed to the Supreme Court of Canada.

Chaoulli was a physician prevented from providing private services under the prohibition. Zeliotis was a patient who had experienced delays obtaining a hip replacement. (13) In addition to the main parties, a number of others sought and were granted leave to intervene in the case and to present written and, in most cases, oral arguments. These included a number of provinces, (14) the individual members of a Senate committee that had produced a comprehensive report on access to health care, (15) physician organizations, (16) health and poverty law activists, (17) and a group of private clinics. (18)

Under both the Quebec and Canadian Charters there is a two-step process to challenging legislation. First, an infringement of an enumerated right or freedom must be established. The main rights at issue in this case were the right to life and security of the person found in s.1 (19) of the Quebec Charter and s.7 (20) of the Canadian Charter. These two sections, while similar in the rights they guarantee, are not identical. (21) S.7 of the Canadian Charter has the additional complexity that in order to establish an infringement it must be shown not only that a deprivation of one of the rights guaranteed has occurred but also that the deprivation was not "in accordance with the principles of fundamental justice." (22)

Once an infringement is established then, under s.9.1 (23) of the Quebec Charter and s.1 (24) of the Canadian Charter, the second step of the analysis is for government to demonstrate that: the infringement is justified in light of the importance of the legislative purpose; there is a rational connection between the purpose and the impugned measure; and the measure is duly limited to ensure that rights and freedoms are minimally impaired. The application of these principles has come to be known as the Oakes test, (25) which was described by Deschamps J. as follows:

First, the court must determine whether the objective of the legislation is pressing and substantial. Next, it must determine whether the chosen means to attain this legislative end are reasonable and demonstrably justified in a free and democratic society. For this second part of the analysis, three tests must be met: (1) the existence of a rational connection between the measure and the aim of the legislation; (2) minimal impairment of the protected right by the measure; and (3) proportionality between the effect of the measure and its objective. (26)

The majority found that the legislative provisions did infringe rights and that the infringement was not justified. Deschamps J. based her decision solely on the Quebec Charter, finding that the legislative provisions unjustifiably infringed s.1. McLachlin C.J.C. and Major J. based their decision, not only on an unjustified infringement of the Quebec Charter, but also on an unjustified infringement of s. 7 of the Canadian Charter.

The minority, Binnie and LeBel JJ., also found that the legislative provisions infringed s. 1 of the Quebec Charter and deprived individuals of life and security of the person under s.7 of the Canadian Charter. However, in terms of the Quebec Charter, they found that the infringement was justified under s.9.1. In terms of the Canadian Charter, under the s.7 analysis, they found that although the rights to life and security of the person were engaged, there had been no deprivation contrary to the principles of fundamental justice.

III. The Divide in the Construal of the Purpose

The legal issue distilled to the nature of the fit between the legislative prohibitions against private insurance, on the one hand, and the purpose or state interest behind the prohibitions, on the other. Determining the purpose of the impugned legislation was, thus, crucial to the legal analysis. The Justices differ, albeit implicitly, in the articulation of this purpose. A brief review of each of their positions follows.

The precise terms by which Deschamps J. characterizes the purpose vary. Typically, she construes it in terms of" preserving the integrity of the system" (27) or "the objective of preserving the public plan." (28) 'Preserving the integrity of the system' or 'the public plan' essentially means preserving its quality.

McLachlin C.J.C. and Major J. typically construe the purpose in terms of "the goal of...

NOTE: All illustrations and photos have been removed from this article.



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