SUPREME COURT OF CANADA

Between:

Jacques Chaoulli and George Zeliotis

Appellants

v.

Attorney General of Quebec and Attorney General ofCanada

Respondents

‑ and ‑

Attorney General of Ontario, Attorney General of

New Brunswick, Attorney General for Saskatchewan, Augustin

Roy, Senator Michael Kirby, Senator Marjory Lebreton,

Senator Catherine Callbeck, Senator Joan Cook,Senator Jane

Cordy, Senator Joyce Fairbairn, Senator Wilbert Keon,

Senator Lucie Ppin, Senator Brenda Robertson and Senator

Douglas Roche, Canadian Medical Association andCanadian

Orthopaedic Association, Canadian Labour Congress,Charter

Committee on Poverty Issues and Canadian HealthCoalition,

Cambie Surgeries Corp., False Creek Surgical CentreInc.,

Delbrook Surgical Centre Inc., Okanagan PlasticSurgery

Centre Inc., Specialty MRI Clinics Inc., FraserValley MRI

Ltd., Image One MRI Clinic Inc., McCallum SurgicalCentre

Ltd., 4111044 Canada Inc., South Fraser SurgicalCentre Inc.,

Victoria Surgery Ltd., Kamloops Surgery Centre Ltd.,Valley

Cosmetic Surgery Associates Inc., Surgical CentresInc.,

British Columbia Orthopaedic Association and BritishColumbia

Anesthesiologists Society

Interveners

Official EnglishTranslation: Reasons of Deschamps J.

Coram: McLachlinC.J. and Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.

Note: Thisdocument is subject to editorial revision before its reproduction in final formin the Canada Supreme Court Reports.

______________________________

chaoulli v. quebec (attorney general)

Jacques Chaoulli and George Zeliotis Appellants

v.

Attorney General of Quebec and Attorney General of Canada Respondents

and

Attorney General of Ontario, Attorney General of

New Brunswick, Attorney General for Saskatchewan,

Augustin Roy, Senator Michael Kirby, Senator Marjory Lebreton,

Senator Catherine Callbeck, Senator Joan Cook, SenatorJane Cordy,

Senator Joyce Fairbairn, Senator Wilbert Keon, Senator Lucie Ppin,

Senator Brenda Robertson and SenatorDouglas Roche, Canadian

Medical Association and Canadian Orthopaedic Association,

Canadian Labour Congress, Charter Committee on Poverty Issues

and Canadian Health Coalition, Cambie Surgeries Corp., False

Creek Surgical Centre Inc., Delbrook Surgical Centre Inc.,

Okanagan Plastic Surgery Centre Inc., Specialty MRI Clinics Inc.,

Fraser Valley MRI Ltd., Image One MRI Clinic Inc., McCallum

Surgical Centre Ltd., 4111044 Canada Inc., South Fraser Surgical

Centre Inc., Victoria Surgery Ltd., Kamloops Surgery Centre Ltd.,

Valley Cosmetic Surgery Associates Inc., Surgical Centres Inc.,

British Columbia Orthopaedic Association and British Columbia

Anesthesiologists Society Interveners

Indexed as:  Chaoulli v.Quebec (Attorney General)

Neutral citation:  2005 SCC 35.

File No.:  29272.

2004:  June 8; 2005:  June 9.

Present:  McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschampsand Fish JJ.

on appeal from the court of appeal for quebec

Human rights Right to life and to personalinviolability Waiting times in public health system Provincial legislationprohibiting Quebec residents from taking out insurance to obtain in privatesector health care services already available under Quebecs public health careplan Prohibition depriving Quebec residents of access to private health careservices not coming with waiting times inherent in public system Whetherprohibition infringing rights to life and to personal inviolability guaranteedby s. 1 of Charter of human rights and freedoms If so, whether infringementcan be justified under s. 9.1 of Charter Charter of human rights andfreedoms, R.S.Q., c. C‑12, ss. 1, 9.1 Health Insurance Act,R.S.Q., c. A‑29, s. 15 Hospital Insurance Act, R.S.Q., c. A‑28,s. 11.

Constitutional law Charter of Rights Right tolife, liberty and security of person Fundamental justice Waiting times inpublic health system Provincial legislation prohibiting Quebec residents fromtaking out insurance to obtain in private sector health care services already availableunder Quebecs public health care plan Prohibition depriving Quebec residentsof private health care services not coming with waiting times inherent inpublic system Whether prohibition constituting deprivation of rights to life,liberty and security of person guaranteed by s. 7 of Canadian Charter ofRights and Freedoms and, if so, whether deprivation in accordance withprinciples of fundamental justice If there violation, whether it can bejustified under s. 1 of Charter Canadian Charter of Rights and Freedoms,ss. 1, 7 Health Insurance Act, R.S.Q., c. A‑29, s. 15 Hospital Insurance Act, R.S.Q., c. A‑28, s. 11.

Over the years, Z experienced a number of healthproblems that prompted him to speak out against waiting times in Quebecs publichealth care system. C is a physician who has tried unsuccessfully to have hishome‑delivered medical activities recognized and to obtain a licence tooperate an independent private hospital. By means of a motion for adeclaratory judgment, the appellants, Z and C, contested the validity of theprohibition on private health insurance provided for in s. 15 of the HealthInsurance Act (HEIA) and s. 11 of the Hospital InsuranceAct (HOIA). They contended that the prohibition deprives them ofaccess to health care services that do not come with the waiting times inherentin the public system. They claimed, inter alia, that s. 15 HEIAand s. 11 HOIA violate their rights under s. 7 of the CanadianCharter of Rights and Freedoms and s. 1 of the Quebec Charter ofhuman rights and freedoms. The Superior Court dismissed the motion for adeclaratory judgment. In the courts view, even though the appellants haddemonstrated a deprivation of the rights to life, liberty and security of theperson guaranteed by s. 7 of the Canadian Charter, this deprivationwas in accordance with the principles of fundamental justice. The Court ofAppeal affirmed that decision.

Held (Binnie, LeBel andFish JJ. dissenting):  The appeal should be allowed.Section 15 HEIA and s. 11 HOIA are inconsistent withthe Quebec Charter.

Per DeschampsJ.:  In the case of a challenge to a Quebec statute, it isappropriate to look first to the rules that apply specifically in Quebec beforeturning to the Canadian Charter, especially where the provisions of thetwo charters produce cumulative effects, but where the rules are notidentical. Given the absence in s. 1 of the Quebec Charter of thereference to the principles of fundamental justice found in s. 7 of the CanadianCharter, the scope of the Quebec Charter is potentially broader thanthat of the Canadian Charter, and this characteristic should not bedisregarded. What is more, it is clear that the protection of s. 1 of theQuebec Charter is not limited to situations involving the administrationof justice.

In the instant case, the trial judges conclusion thats. 11 HOIA and s. 15 HEIA constitute a deprivation ofthe rights to life and security of the person protected by s. 7 of the CanadianCharter applies in full to the rights to life and to personal inviolabilityprotected by s. 1 of the Quebec Charter. The evidence shows that,in the case of certain surgical procedures, the delays that are the necessaryresult of waiting lists increase the patients risk of mortality or the riskthat his or her injuries will become irreparable. The evidence also shows thatmany patients on non‑urgent waiting lists are in pain and cannot fullyenjoy any real quality of life. The right to life and to personalinviolability is therefore affected by the waiting times.

The infringement of the rights protected by s. 1is not justified under s. 9.1 of the Quebec Charter. The generalobjective of the HOIA and the HEIA is to promote health care ofthe highest possible quality for all Quebeckers regardless of their ability topay. The purpose of the prohibition on private insurance in s. 11 HOIAand s. 15 HEIA is to preserve the integrity of the public healthcare system. Preservation of the public plan is a pressing and substantialobjective, but there is no proportionality between the measure adopted toattain the objective and the objective itself. While an absolute prohibitionon private insurance does have a rational connection with the objective ofpreserving the public plan, the Attorney General of Quebec has not demonstratedthat this measure meets the minimal impairment test. It cannot be concludedfrom the evidence concerning the Quebec plan or the plans of the otherprovinces of Canada, or from the evolution of the systems of various OECDcountries that an absolute prohibition on private insurance is necessary toprotect the integrity of the public plan. There are a wide range of measuresthat are less drastic and also less intrusive in relation to the protectedrights.

This is not a case in which the Court must showdeference to the governments choice of measure. The courts have a duty torise above political debate. When, as in the case at bar, the courts are giventhe tools they need to make a decision, they should not hesitate to assumetheir responsibilities. Deference cannot lead the judicial branch to abdicateits role in favour of the legislative branch or the executive branch. Whilethe government has the power to decide what measures to adopt, it cannot chooseto do nothing in the face of a violation of Quebeckers right to security.Inertia cannot be used as an argument to justify deference.

Per McLachlin C.J.,Major and Bastarache JJ.:  The conclusion of Deschamps J.that the prohibition on private health insurance violates s. 1 of theQuebec Charter and is not justifiable under s. 9.1 is agreed with.The prohibition also violates s. 7 of the Canadian Charter and isnot justifiable under s. 1.

While the decision about the type of health caresystem Quebec should adopt falls to the legislature of that province, theresulting legislation, like all laws, must comply with the Canadian Charter.Here, it is common ground that the effect of the prohibition on private healthinsurance set out in s. 11 HOIA and s. 15 HEIA is toallow only the very rich, who can afford private health care without need ofinsurance, to secure private care in order to avoid any delays in the publicsystem. Given the prohibition, most Quebeckers have no choice but to acceptany delays in the public health regime and the consequences this entails.

The evidence in this case shows that delays in thepublic health care system are widespread, and that, in some serious cases,patients die as a result of waiting lists for public health care. The evidencealso demonstrates that the prohibition against private health insurance and itsconsequence of denying people vital health care result in physical and psychologicalsuffering that meets a threshold test of seriousness.

Where lack of timely health care can result in death,the s. 7 protection of life is engaged; where it can result in seriouspsychological and physical suffering, the s. 7 protection of security ofthe person is triggered. In this case, the government has prohibited privatehealth insurance that would permit ordinary Quebeckers to access private healthcare while failing to deliver health care in a reasonable manner, therebyincreasing the risk of complications and death. In so doing, it has interferedwith the interests protected by s. 7 of the Canadian Charter.

Section 11 HOIA and s. 15 HEIAare arbitrary, and the consequent deprivation of the interests protected bys. 7 is therefore not in accordance with the principles of fundamentaljustice. In order not to be arbitrary, a limit on life, liberty or security ofthe person requires not only a theoretical connection between the limit and thelegislative goal, but a real connection on the facts. The task of the courts,on s. 7 issues as on others, is to evaluate the issue in the light, notjust of common sense or theory, but of the evidence. Here, the evidence on theexperience of other western democracies with public health care systems thatpermit access to private health care refutes the governments theory that aprohibition on private health insurance is connected to maintaining qualitypublic health care. It does not appear that private participation leads to theeventual demise of public health care.

The breach of s. 7 is not justified unders. 1 of the Canadian Charter. The government undeniably has aninterest in protecting the public health regime but, given that the evidencefalls short of demonstrating that the prohibition on private health insuranceprotects the public health care system, a rational connection between theprohibition on private health insurance and the legislative objective is notmade out. In addition, on the evidence, the prohibition goes further thanwould be necessary to protect the public system and is thus not minimallyimpairing. Finally, the benefits of the prohibition do not outweigh itsdeleterious effects. The physical and psychological suffering and risk ofdeath that may result from the prohibition on private health insurance outweighwhatever benefit and none has been demonstrated here there may be to thesystem as a whole.

Per Binnie, LeBel andFish JJ. (dissenting):  The question in this appeal is whetherthe province of Quebec not only has the constitutional authority to establish acomprehensive single‑tier health plan, but to discourage a second(private) tier health sector by prohibiting the purchase and sale of privatehealth insurance. This issue has been the subject of protracted debate inQuebec and across Canada through several provincial and federal elections. Thedebate cannot be resolved as a matter of constitutional law by judges.

Canadian Charter interestsunder s. 7 are enumerated as life, liberty and security of the person.The trial judge found that the current state of the Quebec health system,linked to the prohibition against health insurance for insured services, iscapable, at least in the cases of some individuals on some occasions, ofputting at risk their life or security of the person. The courts can uses. 7 of the Canadian Charter to pre‑empt the ongoing publicdebate only if the current health plan violates an established principle offundamental justice. That is not the case here.

The public policy objective of health care to areasonable standard within a reasonable time is not a legal principle offundamental justice. There is no societal consensus about what this non‑legalstandard means or how to achieve it. It will be very difficult for thosedesigning and implementing a health plan to predict when judges will think itsprovisions cross the line from what is reasonable into the forbiddenterritory of what is unreasonable.

A deprivation of a right will be arbitrary, and willthus infringe s. 7, if it bears no relation to, or is inconsistent with,the state interest that lies behind the legislation. Quebecs legislativeobjective is to provide high‑quality health care, at a reasonable cost,for as many people as possible in a manner that is consistent with principlesof efficiency, equity and fiscal responsibility. An overbuilt health system isno more in the larger public interest than a system that on occasion fallsshort.

The Quebec health plan shares the policy objectives ofthe Canada Health Act, and the means adopted by Quebec to implementthese objectives are not arbitrary. In principle, Quebec wants a health systemwhere access is governed by need rather than wealth or status. To accomplishthis objective, Quebec seeks to discourage the growth of private sectordelivery of insured services based on wealth and insurability. Theprohibition is thus rationally connected to Quebecs objective and is notinconsistent with it. In practical terms, Quebec bases the prohibition on theview that private insurance, and a consequent major expansion of private healthservices, would have a harmful effect on the public system.

The view of the evidence taken by the trial judgesupports that belief. She found that the expansion of private health carewould undoubtedly have a negative impact on the public health system. Theevidence indicates that a parallel private system will not reduce, and mayworsen, the public waiting lists and will likely result in a decrease ingovernment funding for the public system. In light of these findings, it cannotbe said that the prohibition against private health insurance bears norelation to, or is inconsistent with the preservation of a health systempredominantly based on need rather than wealth or status. Prohibition ofprivate insurance is not inconsistent with the State interest; still less isit unrelated to it. People are free to dispute Quebecs strategy, but itcannot be said that the provinces version of a single‑tier healthsystem, and the prohibition on private health insurance designed to protectthat system, is a legislative choice that has been adopted arbitrarily by theQuebec National Assembly as that term has been understood to date in the CanadianCharter jurisprudence.

The limits on legislative action fixed by the QuebecCharter are no more favourable to the appellants case than are those fixedby the Canadian Charter. Section 1 of the Quebec Charter, inessence, covers about the same ground as s. 7 of the Canadian Charter,but it does not mention the principles of fundamental justice. Here, theprohibition against private insurance is justifiable under s. 9.1 of the QuebecCharter, which requires rights to be exercised with proper regard todemocratic values, public order and the general well‑being of thecitizens of Qubec. On the evidence, the exercise by the appellants of theirclaimed Quebec Charter rights to defeat the prohibition against privateinsurance would not have proper regard for democratic values or publicorder, as the future of a publicly supported and financed single‑tierhealth plan should be in the hands of elected representatives. Nor would ithave proper regard for the general well‑being of the citizens ofQubec, who are the designated beneficiaries of the health plan, and inparticular for the well‑being of the less advantaged Quebeckers. Theevidence amply supports the validity of the prohibition of private insuranceunder the Quebec Charter: the objectives are compelling; a rationalconnection between the measure and the objective has been demonstrated, and thechoice made by the National Assembly is within the range of options that arejustifiable under s. 9.1. In respect of questions of social and economicpolicy, the minimal impairment test leaves a substantial margin of appreciationto the Quebec legislature. Designing, financing and operating the publichealth system of a modern democratic society remains a challenging task andcalls for difficult choices. Shifting the design of the health system to thecourts is not a wise outcome.

The safety valve (however imperfectly administered) ofallowing Quebec residents to obtain essential health care outside the provincewhen they are unable to receive the care in question at home in a timely manneris of importance. If, as the appellants claim, this safety valve is opened toosparingly, the courts are available to supervise enforcement of the rights ofthose patients who are directly affected by the decision on a case‑by‑casebasis.

Cases Cited

By Deschamps J.

Applied: Ministerof Justice of Canada v. Borowski, [1981]2 S.C.R. 575; R. v. Oakes, [1986] 1 S.C.R. 103; referredto:  Eldridge v. British Columbia (Attorney General),[1997] 3 S.C.R. 624; YMHA Jewish Community Centre of Winnipeg Inc.v. Brown, [1989] 1 S.C.R. 1532; Law Society of Upper Canada v.Skapinker, [1984] 1 S.C.R. 357; Singh v. Minister ofEmployment and Immigration, [1985] 1 S.C.R. 177; Gosselin v.Quebec (Attorney General), [2002] 4 S.C.R. 429,2002 SCC 84; R. v. Collins, [1987] 1 S.C.R. 265; RioHotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987]2 S.C.R. 59; Operation Dismantle Inc. v. The Queen, [1985]1 S.C.R. 441; Quebec (Public Curator) v. Syndicat national des employsde lhpital St‑Ferdinand, [1996] 3 S.C.R. 211; R. v. Morgentaler,[1988] 1 S.C.R. 30; Rodriguez v. British Columbia (AttorneyGeneral), [1993] 3 S.C.R. 519; New Brunswick (Minister ofHealth and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; Blencoev. British Columbia (Human Rights Commission), [2000]2 S.C.R. 307, 2000 SCC 44; Ford v. Quebec (AttorneyGeneral), [1988] 2 S.C.R. 712; Egan v. Canada, [1995]2 S.C.R. 513; Charles Bentley Nursing Home Inc. v. Ministre desAffaires sociales, [1978] C.S. 30; Hunter v. Southam Inc.,[1984] 2 S.C.R. 145; Vriend v. Alberta, [1998]1 S.C.R. 493; Reference re Secession of Quebec, [1998]2 S.C.R. 217; Irwin Toy Ltd. v. Quebec (Attorney General),[1989] 1 S.C.R. 927; RJR‑MacDonald Inc. v. Canada (AttorneyGeneral), [1995] 3 S.C.R. 199.

By McLachlin C.J. and Major J.

Applied: R. v. Morgentaler, [1988] 1 S.C.R. 30; Rodriguez v. British Columbia(Attorney General), [1993] 3 S.C.R. 519; referredto:  Re B.C. Motor Vehicle Act, [1985]2 S.C.R. 486; Amax Potash Ltd. v. Government of Saskatchewan,[1977] 2 S.C.R. 576; R. v. Malmo‑Levine, [2003]3 S.C.R. 571, 2003 SCC 74; New Brunswick (Minister ofHealth and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; R. v. Oakes,[1986] 1 S.C.R. 103.

By Binnie and LeBel JJ. (dissenting)

Auton (Guardian ad litem of) v. British Columbia(Attorney General), [2004] 3 S.C.R. 657,2004 SCC 78; R. v. Morgentaler, [1988] 1 S.C.R. 30; R.v. Malmo‑Levine, [2003] 3 S.C.R. 571,2003 SCC 74; Vriend v. Alberta, [1998] 1 S.C.R. 493;Minister of Justice of Canada v. Borowski, [1981]2 S.C.R. 575; Canadian Council of Churches v. Canada (Minister ofEmployment and Immigration), [1992] 1 S.C.R. 236; Gosselin v.Quebec (Attorney General), [2002] 4 S.C.R. 429,2002 SCC 84; Reference re ss. 193 and 195.1(1)(c) of theCriminal Code (Man.), [1990] 1 S.C.R. 1123; Blencoe v. BritishColumbia (Human Rights Commission), [2000] 2 S.C.R. 307,2000 SCC 44; Winnipeg Child and Family Services v. K.L.W.,[2000] 2 S.C.R. 519, 2000 SCC 48; Re B.C. Motor VehicleAct, [1985] 2 S.C.R. 486; Lochner v. New York,198 U.S. 45 (1905); West Coast Hotel Co. v. Parrish,300 U.S. 379 (1937); R. v. Edwards Books and Art Ltd., [1986]2 S.C.R. 713; Rodriguez v. British Columbia (Attorney General),[1993] 3 S.C.R. 519; New Brunswick (Minister of Health andCommunity Services) v. G. (J.), [1999] 3 S.C.R. 46; CanadianFoundation for Children, Youth and the Law v. Canada (Attorney General),[2004] 1 S.C.R. 76, 2004 SCC 4; Stein v. Tribunal administratifdu Qubec, [1999] R.J.Q. 2416; Housen v. Nikolaisen, [2002]2 S.C.R. 235, 2002 SCC 33; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Godbout v. Longueuil (Ville de),[1995] R.J.Q. 2561.

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Alberta Health Care InsuranceAct, R.S.A. 2000, c. A‑20,s. 9(1).

Canada Health Act, R.S.C. 1985, c. C‑6, s. 3.

Canadian Bill of Rights, R.S.C. 1985, App. III.

Canadian Charter of Rights andFreedoms, ss. 1, 7, 12, 15, 24.

Charter of Human Rights andFreedoms, R.S.Q., c. C‑12, ss. 1,9.1, 52.

Civil Code of Qubec, S.Q. 1991, c. 64, arts. 1417, 1457, 1458.

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General Regulation MedicalServices Payment Act, N.B. Reg. 84‑20, Sch. 2,s. n.1.

Health Care Accessibility Act, R.S.O. 1990, c. H.3, s. 2.

Health Insurance Act, R.S.Q., c. A‑29, ss. 1(d), (e), (f),3, 10, 15, 22, 30.

Health Services and InsuranceAct, R.S.N.S. 1989, c. 197, s. 29(2).

Health Services Insurance Act, R.S.M. 1987, c. H35, s. 95(1).

Health Services Payment Act, R.S.P.E.I. 1988, c. H‑2, ss. 10, 10.1, 14.1.

Hospital Insurance Act, R.S.Q., c. A‑28, ss. 2, 11.

Medical Care Insurance Act,1999, S.N.L.  1999, c. M‑5.1,s. 10(5).

Medical Care Insurance InsuredServices Regulations, C.N.L.R. 21/96,s. 3.

Medical Services Payment Act, R.S.N.B. 1973, c. M‑7, s. 2.01(a).

Medicare Protection Act, R.S.B.C. 1996, c. 286, s. 18(2).

Regulation respecting theapplication of the Health Insurance Act,R.R.Q. 1981, ss. 23.1, 23.2.

Saskatchewan Medical CareInsurance Act, R.S.S. 1978, c. S‑29,s. 18(1.1).

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Tribe, Laurence H. AmericanConstitutional Law, vol. 1, 3rd ed. NewYork:  Foundation Press, 2000.

Tuohy, Carolyn Hughes,Colleen M. Flood and Mark Stabile, How Does Private FinanceAffect Public Health Care Systems? Marshaling the Evidence from OECD Nations(2004), 29 J. Health Pol.  359.

Turcotte, Fernard. Le temps dattentecomme instrument de gestion du rationnement dans les services de sant duCanada. Laval:  Facult de mdecine, Universit Laval, November 1998.

World Health Organization. TheWorld Health Report 1999:  Making a Difference. WHO, 1999.

Wright, Charles J. WaitingLists in Canada and the Potential Effects of Private Access to Health CareServices, report prepared for the Department of Justice, Canada.Vancouver, October 1998.

APPEAL from judgments of the Quebec Court of Appeal(Brossard, Delisle and Forget JJ.A.), [2002] R.J.Q. 1205, [2002]Q.J. No. 759 (QL) and [2002] Q.J. No. 763 (QL), affirming a decisionof Pich J., [2000] R.J.Q. 786, [2000] Q.J. No. 479 (QL).Appeal allowed, Binnie, LeBel and Fish JJ. dissenting.

Jacques Chaoulli, on his own behalf.

Bruce W. Johnston and Philippe H. Trudel, for the appellantGeorge Zeliotis.

Patrice Claude, Robert Monette,Dominique A. Jobin, Ariel G. Boileau and Manon Des Ormeaux,for the respondent the Attorney General of Quebec.

Jean‑Marc Aubry, Q.C., and Ren LeBlanc, for the respondent theAttorney General of Canada.

Janet E. Minor, Shaun Nakatsuru and Laurel Montrose, forthe intervener the Attorney General of Ontario.

Written submissions only by Gabriel Bourgeois,Q.C., for the intervener the Attorney General of New Brunswick.

Written submissions only by Graeme G. Mitchell,Q.C., for the intervener the Attorney General for Saskatchewan.

Written submissions only by Augustin Roy.

Earl A. Cherniak, Q.C., Stanley H. Hartt, Q.C., Patrick J. Monahanand Valerie D. Wise, for the interveners SenatorMichael Kirby, Senator Marjory Lebreton, Senator Catherine Callbeck,Senator Joan Cook, Senator Jane Cordy, Senator Joyce Fairbairn,Senator Wilbert Keon, Senator Lucie Ppin, SenatorBrenda Robertson and Senator Douglas Roche.

Guy J. Pratte,Freya Kristjanson, Carole Lucock and Jean Nelson,for the interveners the Canadian Medical Association and the CanadianOrthopaedic Association.

Written submissions only by Steven Barrett,Steven Shrybman, Ethan Poskanzer and Vanessa Payne,for the intervener the Canadian Labour Congress.

Martha Jackman,for the interveners the Charter Committee on Poverty Issues and the CanadianHealth Coalition.

Marvin R. V. Storrow, Q.C., and Peter W. Hogg, Q.C., forthe interveners Cambie Surgeries Corp., False Creek Surgical Centre Inc., DelbrookSurgical Centre Inc., Okanagan Plastic Surgery Centre Inc., Specialty MRIClinics Inc., Fraser Valley MRI Ltd., Image One MRI Clinic Inc., McCallumSurgical Centre Ltd., 4111044 Canada Inc., South Fraser Surgical Centre Inc.,Victoria Surgery Ltd., Kamloops Surgery Centre Ltd., Valley Cosmetic SurgeryAssociates Inc., Surgical Centres Inc., British Columbia OrthopaedicAssociation and British Columbia Anesthesiologists Society.

Jacques Chaoulli, on his own behalf.

Solicitors for the appellant George Zeliotis: Trudel& Johnston, Montreal.

Solicitors for the respondent the Attorney Generalof Quebec: Bernard, Roy & Associs, Montreal.

Solicitors for the respondent the Attorney Generalof Canada: DAuray, Aubry, LeBlanc & Associs, Ottawa.

Solicitors for the intervener the Attorney Generalof Ontario: Attorney General of Ontario, Toronto.

Solicitor for the intervener the Attorney Generalof New Brunswick: Attorney General of New Brunswick, Fredericton.

Solicitor for the intervener the Attorney Generalfor Saskatchewan: Attorney General for Saskatchewan, Regina.

Augustin Roy, on his own behalf.

Solicitors for the interveners Senator MichaelKirby, Senator Marjory Lebreton, Senator Catherine Callbeck, Senator Joan Cook,Senator Jane Cordy, Senator Joyce Fairbairn, Senator Wilbert Keon, Senator LuciePpin, Senator Brenda Robertson and Senator Douglas Roche: Lerners, Toronto.

Solicitors for the interveners the Canadian MedicalAssociation and the Canadian Orthopaedic Association: Borden Ladner Gervais,Ottawa.

Solicitors for the intervener the Canadian LabourCongress: Sack Goldblatt Mitchell, Toronto.

Solicitor for the interveners the Charter Committeeon Poverty Issues and the Canadian Health Coalition: University of Ottawa,Ottawa.

Solicitors for the interveners Cambie SurgeriesCorp., False Creek Surgical Centre Inc., Delbrook Surgical Centre Inc., OkanaganPlastic Surgery Centre Inc., Specialty MRI Clinics Inc., Fraser Valley MRILtd., Image One MRI Clinic Inc., McCallum Surgical Centre Ltd., 4111044 CanadaInc., South Fraser Surgical Centre Inc., Victoria Surgery Ltd., KamloopsSurgery Centre Ltd., Valley Cosmetic Surgery Associates Inc., Surgical CentresInc., British Columbia Orthopaedic Association and British Columbia AnesthesiologistsSociety: Blake, Cassels & Graydon, Vancouver.

English version of the reasons delivered by

1                                  Deschamps J. Quebeckersare prohibited from taking out insurance to obtain in the private sectorservices that are available under Quebecs public health care plan. Is thisprohibition justified by the need to preserve the integrity of the plan?

2                                  As we enter the 21st century, health care is a constant concern.The public health care system, once a source of national pride, has become thesubject of frequent and sometimes bitter criticism. This appeal does notquestion the appropriateness of the state making health care available to allQuebeckers. On the contrary, all the parties stated that they support thiskind of role for the government. Only the state can make available to allQuebeckers the social safety net consisting of universal and accessible healthcare. The demand for health care is constantly increasing, and one of thetools used by governments to control this increase has been the management ofwaiting lists. The choice of waiting lists as a management tool falls withinthe authority of the state and not of the courts. The appellants do not claimto have a solution that will eliminate waiting lists. Rather, they submit thatthe delays resulting from waiting lists violate their rights under the Charterof human rights and freedoms, R.S.Q., c. C‑12 (QuebecCharter), and the Canadian Charter of Rights and Freedoms (CanadianCharter). They contest the validity of the prohibition in Quebec, asprovided for in s. 15 of the Health Insurance Act, R.S.Q.,c. A‑29 (HEIA), and s. 11 of the Hospital InsuranceAct, R.S.Q., c. A‑28 (HOIA), on private insurance forhealth care services that are available in the public system. The appellantscontend that the prohibition deprives them of access to health care servicesthat do not come with the wait they face in the public system.

3                                  The two sections in issue read as follows:

15. No person shall make or renew a contract of insurance ormake a payment under a contract of insurance under which an insured service isfurnished or under which all or part of the cost of such a service is paid to aresident or a deemed resident of Qubec or to another person on hisbehalf. . . .

11. (1) No one shall make or renew, or make a payment under acontract under which

(a) a resident is to be provided with or tobe reimbursed for the cost of any hospital service that is one of the insuredservices;

(b) payment is conditional upon thehospitalization of a resident; or

(c) payment is dependent upon the length oftime the resident is a patient in a facility maintained by an institutioncontemplated in section 2. . . .

4                                  In essence, the question is whether Quebeckers who are prepared to spendmoney to get access to health care that is, in practice, not accessible in thepublic sector because of waiting lists may be validly prevented from doing soby the state. For the reasons that follow, I find that the prohibitioninfringes the right to personal inviolability and that it is not justified by aproper regard for democratic values, public order and the general well‑beingof the citizens of Quebec.

5                                  The validity of the prohibition is contested by the appellants,George Zeliotis and Jacques Chaoulli. Over the years, Mr. Zeliotishas experienced a number of health problems and has used medical services thatwere available in the public system, including heart surgery and a number ofoperations on his hip. The difficulties he encountered prompted him to speakout against waiting times in the public health care system. Mr. Chaoulliis a physician who has tried unsuccessfully to have his home‑deliveredmedical activities recognized and to obtain a licence to operate an independentprivate hospital. Mr. Zeliotis and Mr. Chaoulli joined forces toapply to the court by way of motion for a declaration that s. 15 HEIAand s. 11 HOIA are unconstitutional and invalid. Mr. Chaoulliargues, first, that the prohibition is within the federal governmentslegislative jurisdiction in relation to criminal law and, second, that theprohibition violates the rights to life and to personal security, inviolabilityand freedom protected by s. 1 of the Quebec Charter and ss. 7,12 and 15 of the Canadian Charter. The respondents contested the motionboth in the Superior Court and in the Court of Appeal.

6                                  The Superior Court dismissed the motion for a declaratory judgment:[2000] R.J.Q. 786. With respect to the provinces power to enacts. 11 HOIA and s. 15 HEIA, Pich J. found that thepurpose of the prohibition is to discourage the development of parallel privatehealth care services and that it is not a criminal law matter.

7                                  On the subject of s. 7 of the Canadian Charter, she notedthat according to this Court, its scope may include certain economic rightsthat are intimately connected with the right to life, liberty and security ofthe person. She found that the appellants had demonstrated a deprivation ofthe right to life, liberty and security of the person within the meaning ofs. 7 of the Canadian Charter. Pich J. then consideredwhether this deprivation was in accordance with the principles of fundamentaljustice. She was of the opinion that the purpose of the HOIA and the HEIAis to establish a public health system that is available to all residents ofQuebec. The purpose of s. 11 HOIA and s. 15 HEIA is toguarantee that virtually all of Quebecs existing health care resources will beavailable to all residents of Quebec. In her opinion, the enactment of theseprovisions was motivated by considerations of equality and human dignity. Shefound no conflict with the general values expressed in the Canadian Charteror in the Quebec Charter. She did find that waiting lists are long andthe health care system must be improved and transformed. In her opinion,however, the expert testimony could not serve to establish with certainty thata parallel health care system would solve all the current problems of waiting timesand access.

8                                  In light of her conclusion regarding s. 7 of the CanadianCharter, Pich J. did not address the question of justificationpursuant to s. 1 of the Canadian Charter. However, she did expressthe opinion that the s. 1 analysis would show that the impugned provisionsconstitute a reasonable limit in a free and democratic society. Although thearguments based on the Quebec Charter were raised formally and expresslyargued, and although this ground was mentioned at the start of the judgment, Pich J.did not address them in her analysis.

9                                  With respect to s. 12 of the Canadian Charter, Pich J.found that the states role with regard to the prohibitions is not sufficientlyactive for the prohibitions to be considered a treatment within the meaningof the Canadian Charter.

10                              The argument based on s. 15 of the Canadian Charter relatesto place of residence. The prohibition does not apply to non‑residentsbut does apply to residents. Pich J. found that in the circumstances ofthis case, place of residence is not used to devalue certain individuals or toperpetuate stereotypes. She found that the guarantee of protection againstdiscrimination had not been violated.

11                              The Court of Appeal dismissed the appeal:  [2002] R.J.Q. 1205.The three judges wrote separate reasons. Delisle J.A. considered all thearguments addressed by the Superior Court. He disagreed with Pich J.regarding s. 7 of the Canadian Charter. According to Delisle J.A.,the right affected by s. 11 HOIA and s. 15 HEIA is aneconomic right and is not fundamental to an individuals life. In addition, inhis opinion, the appellants had not demonstrated a real, imminent orforeseeable deprivation. He was also of the view that s. 7 of the CanadianCharter may not be raised to challenge a societal choice in court.Forget J.A. essentially agreed with the Superior Court judge. Like Pich J.,he found that the appellants had demonstrated a deprivation of their rightsunder s. 7 of the Canadian Charter, but that this deprivation wasin accordance with the principles of fundamental justice. Brossard J.A.agreed with Delisle J.A. regarding the economic nature of the rightaffected by s. 11 HOIA and s. 15 HEIA. However, hefelt that a risk to life or security resulting from a delay in obtainingmedical services would constitute a deprivation within the meaning of s. 7of the Canadian Charter. He declined to express an opinion as towhether this deprivation was in accordance with the principles of fundamentaljustice. Although the arguments based on the Quebec Charter werementioned in the notice of appeal and in Delisle J.A.s statement of thegrounds of appeal, none of the Court of Appeal judges addressed them.

12                              The arguments based on the Quebec Charter were expressly raisedbefore this Court.

13                              Given that I have had the opportunity to read the reasons of Binnie and LeBel JJ.,I think it would be appropriate to highlight the main points on which we agreeand disagree before addressing the issues raised by the appellants.

14                              As I mentioned at the beginning of my reasons, no one questions the needto preserve a sound public health care system. The central question raised bythe appeal is whether the prohibition is justified by the need to preserve theintegrity of the public system. In this regard, when my colleagues ask whetherQuebec has the power under the Constitution to discourage the establishment ofa parallel health care system, I can only agree with them that it does. Butthat is not the issue in the appeal. The appellants do not contend that theyhave a constitutional right to private insurance. Rather, they contend thatthe waiting times violate their rights to life and security. It is the measurechosen by the government that is in issue, not Quebeckers need for a publichealth care system.

15                              To put the problem in context, the legislative framework of the impugnedprovisions must first be explained. Considering the provisions in theirlegislative context will make it possible to address the division of powersargument. I will then explain why, in my opinion, the case must first beconsidered from the standpoint of the Quebec Charter. Next, I willexamine the appeal from the standpoint of s. 1 of the Quebec Charterbefore considering whether the prohibition is justified under s. 9.1 ofthe Quebec Charter. Because I conclude that the Quebec Charterhas been violated, it will not be necessary for me to consider the argumentsbased on the Canadian Charter.

I.  Legislative Context

16                              Although the federal government has express jurisdiction over certainmatters relating to health, such as quarantine, and the establishment andmaintenance of marine hospitals (s. 91(11) of the Constitution Act,1867), it is in practice that it imposes its views on the provincialgovernments in the health care sphere by means of its spendingpower:  Eldridge v. British Columbia (Attorney General),[1997] 3 S.C.R. 624, at para. 25; YMHA Jewish CommunityCentre of Winnipeg Inc. v. Brown, [1989] 1 S.C.R. 1532, atp. 1548; see also:  P. W. Hogg, Constitutional Lawof Canada (loose‑leaf ed.), Vol. 1, at p. 6‑15;A. Lajoie, Limpact des Accords du Lac Meech sur le pouvoir de dpenser,in Ladhsion du Qubec lAccord du Lac Meech (1988), 163, atpp. 164 et seq. In order to receive federal funds, a provincialplan must conform to the principles set out in the Canada Health Act,R.S.C. 1985, c. C‑6:  it must be administeredpublicly, it must be comprehensive and universal, it must provide forportability from one province to another and it must be accessible toeveryone. These broad principles have become the hallmarks of Canadianidentity. Any measure that might be perceived as compromising them has apolarizing effect on public opinion. The debate about the effectiveness ofpublic health care has become an emotional one. The Romanow Report stated thatthe Canada Health Act has achieved an iconic status that makes ituntouchable by politicians (Building on Values: The Future of Health Care inCanada:  Final Report (2002), at p. 60 (Romanow Report)). Thetone adopted by my colleagues Binnie and LeBel JJ. is indicative of thistype of emotional reaction. It leads them to characterize the debate aspitting rich against poor when the case is really about determining whether aspecific measure is justified under either the Quebec Charter or the CanadianCharter. I believe that it is essential to take a step back and considerthese various reactions objectively. The Canada Health Act does notprohibit private health care services, nor does it provide benchmarks for thelength of waiting times that might be regarded as consistent with theprinciples it lays down, and in particular with the principle of realaccessibility.

17                              In reality, a large proportion of health care is delivered by theprivate sector. First, there are health care services in respect of which theprivate sector acts, in a sense, as a subcontractor and is paid by the state.There are also many services that are not delivered by the state, such as homecare or care provided by professionals other than physicians. In 2001, privatesector services not paid for by the state accounted for nearly 30 percentof total health care spending (Canadian Institute for Health Information, Publicand Private Shares of Total Health Expenditure, by Use of Funds, Canada, 2001).In the case of private sector services that are not covered by the public plan,Quebeckers may take out private insurance without the spectre of the two‑tiersystem being evoked. The Canada Health Act is therefore only a generalframework that leaves considerable latitude to the provinces. In analysing thejustification for the prohibition, I will have occasion to briefly review someof the provisions of Canadas provincial plans. The range of measures showsthat there are many ways to deal with the public sector/private sector dynamicwithout resorting to a ban.

18                              The basis for provincial jurisdiction over health care is more clear. TheConstitution Act, 1867 provides that the provinces have jurisdictionover matters of a local or private nature (s. 92(16)), property and civilrights (s. 92(13)), and the establishment of hospitals, asylums,charities and eleemosynary institutions (s. 92(7)). In Quebec,health care services are delivered pursuant to the Act respecting healthservices and social services, R.S.Q., c. S‑4.2 (AHSSS).The AHSSS regulates the institutions where health care services aredelivered and sets out the principles that guide the delivery of such servicesin Quebec. For example, under s. 5 AHSSS, Quebeckers are entitledto receive, with continuity and in a personalized and safe manner, healthservices and social services which are scientifically, humanly and sociallyappropriate.

19                              The other two main legislative instruments that govern the health caresystem in Quebec are the HOIA and the HEIA. The HOIAestablishes access to hospital services in Quebec; it also regulateshospitals. The purpose of the HEIA is to ensure that Quebeckers haveaccess to certain medical services that they need for health reasons.

20                              Before discussing the effect of waiting times on human rights, I willaddress the question of whether the province has the power to impose a prohibitionon private insurance.

II.  Validity of the Prohibition in Relation to ProvincialJurisdiction

21                              The appellant Chaoulli argues that the prohibition is a criminal lawmatter. In his submission, it was adopted because the provincial government ofthe time wished to impose an egalitarian system and to eliminate theopportunity for profit in the provision of health care services. He contendsthat the operation of a health care service for profit was regarded at thattime as socially undesirable.

22                              If the Court is to accept this argument, it must find, first, that theeffect of the prohibition on private insurance is to exclude the private sectorand, second, that the main purpose of excluding the private sector, as distinctfrom the overall purpose of the HOIA and the HEIA, is to avertcriminal conduct.

23                              The Superior Court judge found that the purpose of the prohibition is toensure that health care is available [translation]by significantly limiting access to, and the profitability of, the privatesystem in Quebec (at p. 812). I will review later in these reasonsthe evidence accepted by the Superior Court judge in finding that theprohibition is useful having regard to the intended purpose, and so for themoment I reserve comment on this point. It is sufficient, at the stage ofidentification of the intended purpose, to determine whether ensuring access tohealth care services by limiting access to the private system is a validobjective for the provincial government. On this point, and based on thedivision of powers analysis in the preceding section, it is indisputable thatthe provincial government has jurisdiction over health care and can putmechanisms in place to ensure that all Quebeckers have access to health care.

24                              It is difficult to see the argument that the provision of parallelprivate sector services was perceived as being socially undesirable as anindependent objective, unconnected with the social policy pursued by thegovernment in the area of health care. The appellants were alone in contendingthat the purpose of the prohibition was to eliminate morally reprehensibleconduct. The Attorney General of Quebec argued that the prohibition resultedfrom a desire to pool the financial resources available for health care. Thisexplanation coincides with the objective identified by the Superior Courtjudge, which is not, strictly speaking, a criminal law objective. Rather, itis a social objective that the provincial legislature may pursue in accordancewith the powers conferred on it by s. 92 of the Constitution Act, 1867.In my opinion, the argument that the provincial government has trenched on thefederal criminal law power cannot succeed.

III.  Priority Given to Arguments Based on the QuebecCharter

25                              The Canadian Charter is neither an ordinary statute nor anextraordinary statute like the Canadian Bill of Rights,R.S.C. 1985, App. III. It is a part of the Constitution:  LawSociety of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, atp. 365. As a result, the Canadian Charter is different from the QuebecCharter in that the Quebec Charter is the product of the legislativewill of Quebecs National Assembly. In addition, while the Quebec Charterhas no constitutional dimension, it is also different from ordinary statutes byvirtue of its considerably broader purpose: to guarantee respect for humanbeings (see A. Morel, La coexistence des Chartes canadienne et qubcoise : problmesdinteraction (1986), 17 R.D.U.S. 49). The Quebec Charterprotects not only the fundamental rights and freedoms, but also certain civil,political, economic and social rights. By virtue of s. 52, Quebec courtshave the power to review legislation to determine whether it is consistent withthe rules set out in the Quebec Charter. The Quebec Charter hasan identity that is independent of the statutes of Quebec.

26                              In the case of a challenge to a Quebec statute, it is appropriate tolook first to the rules that apply specifically in Quebec before turning to theCanadian Charter, especially where the provisions of the two chartersare susceptible of producing cumulative effects, but where the rules are notidentical. This is the approach suggested by Beetz J. in Singh v.Minister of Employment and Immigration, [1985] 1 S.C.R. 177, atp. 224:

Thus, the Canadian Bill of Rights retainsall its force and effect, together with the various provincial charters ofrights. Because these constitutional or quasi‑constitutional instrumentsare drafted differently, they are susceptible of producing cumulative effectsfor the better protection of rights and freedoms. But this beneficial resultwill be lost if these instruments fall into neglect.

27                              In the instant case, s. 7 of the Canadian Charter ands. 1 of the Quebec Charter have numerous points in common:

Canadian Charter

7. Everyone has the right to life, libertyand security of the person and the right not to be deprived thereof except inaccordance with the principles of fundamental justice.

Quebec Charter

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

28                              The similarities between these two provisions probably explain in partwhy the Superior Court and the Court of Appeal considered only the CanadianCharter in their decisions. With regard to certain aspects of the twocharters, the law is the same. For example, the wording of the right to lifeand liberty is identical. It is thus appropriate to consider the twotogether. Distinctions must be made, however, and I believe that it isimportant to begin by considering the specific protection afforded by the QuebecCharter for the reason that it is not identical to the protection affordedby the Canadian Charter.

29                              The most obvious distinction is the absence of any reference to theprinciples of fundamental justice in s. 1 of the Quebec Charter.The analysis dictated by s. 7 of the Canadian Charter is twofold.Under the approach that is generally taken, the claimant must prove, first,that a deprivation of the right to life, liberty and security of the person hasoccurred and, second, that the deprivation is not in accordance with theprinciples of fundamental justice (Gosselin v. Quebec (Attorney General),[2002] 4 S.C.R. 429, 2002 SCC 84, at para. 205, perBastarache J.). If this is proved, the state must show under s. 1 ofthe Canadian Charter that the deprivation is justified in a free anddemocratic society.

30                              According to established principles, the onus is on the claimant toprove a violation of constitutional rights:  R. v. Collins,[1987] 1 S.C.R. 265, and Rio Hotel Ltd. v. New Brunswick (LiquorLicensing Board), [1987] 2 S.C.R. 59; see also Hogg, atp. 44‑3. Under s. 7 of the Canadian Charter, theclaimant would thus have a dual burden. The effect of placing this burden ofproof on the claimant is that it makes his or her task more onerous. There isno such dual burden of proof under the Quebec Charter because theprinciples of fundamental justice are not incorporated into s. 1 of the QuebecCharter. For this reason, the Quebec Charter has a scope that ispotentially broader. This characteristic should not be disregarded.

31                              Ruling on the points in issue by applying the Quebec Charterenhances an instrument that is specific to Quebec; this approach is alsojustified by the rules of Canadian constitutional law.

32                              Before getting into the heart of the debate regarding s. 1 of the QuebecCharter, I must address three preliminary arguments raised by therespondent Attorney General of Quebec:  (a) that the protectionof the right to freedom and life is limited to situations involving theadministration of justice, (b) that the right asserted is economic and isnot a fundamental right, and (c) that the appellants do not have standing.

IV.  Preliminary Objections

A.  Scope of Section 1 of the Quebec Charter

33                              The trial judge adopted a liberal approach to applying the protectionafforded by s. 7 of the Canadian Charter. She expressed theopinion that the protection is not limited to situations involving theadministration of justice. This Court has not yet achieved a consensusregarding the scope of this protection. In Gosselin, at paras. 78 and 83,McLachlin C.J. did not consider it necessary to answer the questiondefinitively. In my opinion, the same question of law does not arise in thecontext of the Quebec Charter. The Quebec Charter has a verybroad scope of application. It extends to relationships between individualsand relationships between individuals and the state. Limiting the scope ofs. 1 of the Quebec Charter to matters connected with theadministration of justice is not justified in light of the general scope ofthis quasi‑constitutional instrument.

B.  Economic Right or Fundamental Right

34                              Delisle J.A. accepted the argument of the Attorney General ofQuebec and declined to apply s. 7 of the Canadian Charter on thebasis that the right in issue, which in his opinion is an economic right, isnot protected by the Charter. This appeal does not require the Court toestablish a general rule including or excluding economic rights in or from thescope of s. 1 of the Quebec Charter. The Superior Court judge madethe following observation in this regard (at pp. 822‑23):

[translation]. . . the economic barriers . . . are closely related tothe possibility of gaining access to health care. Having regard to the costsinvolved, access to private care without the rights in question is illusory.Accordingly, those provisions are an impediment to access to health careservices and therefore potentially infringe the right to life, liberty andsecurity of the person. [Emphasis deleted.]

Pich J.sanalysis is correct. Limits on access to health care can infringe the right topersonal inviolability. The prohibition cannot be characterized as aninfringement of an economic right.

C.  Standing

35                              Clearly, a challenge based on a charter, whether it be the CanadianCharter or the Quebec Charter, must have an actual basis infact:  Operation Dismantle Inc. v. The Queen, [1985]1 S.C.R. 441. However, the question is not whether the appellantsare able to show that they are personally affected by an infringement. Theissues in the instant case are of public interest and the test from Ministerof Justice of Canada v. Borowski, [1981] 2 S.C.R. 575, applies.The issue must be serious, the claimants must be directly affected or have agenuine interest as citizens and there must be no other effective meansavailable to them. These conditions have been met. The issue of the validityof the prohibition is serious. Chaoulli is a physician and Zeliotis is apatient who has suffered as a result of waiting lists. They have a genuineinterest in the legal proceedings. Finally, there is no effective way tochallenge the validity of the provisions other than by recourse to the courts.

36                              The three preliminary objections are therefore dismissed. I will nowturn to the analysis of the infringement of the rights protected by s. 1of the Quebec Charter.

V.  Infringement of the Rights Protected by s. 1 ofthe Quebec Charter

37                              The appellant Zeliotis argues that the prohibition infringes Quebeckersright to life. Some patients die as a result of long waits for treatment inthe public system when they could have gained prompt access to care in theprivate sector. Were it not for s. 11 HOIA and s. 15 HEIA,they could buy private insurance and receive care in the private sector.

38                              The Superior Court judge stated [translation]that there [are] serious problems in certain sectors of the health caresystem (at p. 823). The evidence supports that assertion. Aftermeticulously analysing the evidence, she found that the right to life andliberty protected by s. 7 of the Canadian Charter had beeninfringed. As I mentioned above, the right to life and liberty protected bythe Quebec Charter is the same as the right protected by the CanadianCharter. Quebec society is no different from Canadian society when itcomes to respect for these two fundamental rights. Accordingly, the trialjudges findings of fact concerning the infringement of the right to life andliberty protected by s. 7 of the Canadian Charter apply to theright protected by s. 1 of the Quebec Charter.

39                              Not only is it common knowledge that health care in Quebec is subject towaiting times, but a number of witnesses acknowledged that the demand forhealth care is potentially unlimited and that waiting lists are a more or lessimplicit form of rationing (report by J.‑L. Denis, Un avenir pourle systme public de sant (1998), at p. 13; report by Y. Brunelle,Aspects critiques dun rationnement planifi (1993), at p. 21).Waiting lists are therefore real and intentional. The witnesses also commentedon the consequences of waiting times.

40                              Dr. Daniel Doyle, a cardiovascular surgeon, testified thatwhen a person is diagnosed with cardiovascular disease, he or she is [translation] always sitting on a bomband can die at any moment. In such cases, it is inevitable that some patientswill die if they have to wait for an operation. Dr. Doyle testified thatthe risk of mortality rises by 0.45 percent per month. The right to lifeis therefore affected by the delays that are the necessary result of waitinglists.

41                              The Quebec Charter also protects the right to personalinviolability. This is a very broad right. The meaning of inviolability isbroader than the meaning of the word security used in s. 7 of the CanadianCharter. In civil liability cases, it has long been recognized in Quebecthat personal inviolability includes both physical inviolability and mental orpsychological inviolability. This was stated clearly in Quebec (PublicCurator) v. Syndicat national des employs de lhpital‑St‑Ferdinand,[1996] 3 S.C.R. 211, at para. 95:

Section 1 of the Charter guarantees theright to personal inviolability. The majority of the Court of Appeal was ofthe opinion, contrary to the trial judge's interpretation, that the protectionafforded by s. 1 of the Charter extends beyond physicalinviolability. I agree. The statutory amendment enacted in 1982 (see AnAct to amend the Charter of Human Rights and Freedoms, S.Q. 1982,c. 61, in force at the time this cause of action arose) which, inter alia,deleted the adjective physique, in the French version, which hadpreviously qualified the expression intgrit (inviolability), clearlyindicates that s. 1 refers inclusively to physical, psychological, moraland social inviolability.

Furthermore,arts. 1457 and 1458 of the Civil Code of Qubec, S.Q. 1991,c. 64, refer expressly to moral injury.

42                              In the instant case, Dr. Eric Lenczner, an orthopaedicsurgeon, testified that the usual waiting time of one year for patients whorequire orthopaedic surgery increases the risk that their injuries will becomeirreparable. Clearly, not everyone on a waiting list is in danger of dyingbefore being treated. According to Dr. Edwin Coffey, people may facea wide variety of problems while waiting. For example, a person with chronicarthritis who is waiting for a hip replacement may experience considerablepain. Dr. Lenczner also stated that many patients on non‑urgentwaiting lists for orthopaedic surgery are in pain and cannot walk or enjoy anyreal quality of life.

43                              Canadian jurisprudence shows support for interpreting the right tosecurity of the person generously in relation to delays. In R. v. Morgentaler,[1988] 1 S.C.R. 30, at p. 59, Dickson C.J. found, based onthe consequences of delays, that the procedure then provided for in s. 251of the Criminal Code, R.S.C. 1985, c. C‑46, jeopardized theright to security of the person. Beetz J., at p. 105, with Estey J.concurring, was of the opinion that the delay created an additional risk tohealth and constituted a violation of the right to security of the person.Likewise, in Rodriguez v. British Columbia (Attorney General), [1993]3 S.C.R. 519, at p. 589, Sopinka J. found that thesuffering imposed by the state impinged on the right to security of theperson. See also New Brunswick (Minister of Health and CommunityServices) v. G. (J.), [1999] 3 S.C.R. 46, and Blencoe v.British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307,2000 SCC 44, with respect to mental suffering. If the evidenceestablishes that the right to security of the person has been infringed, itsupports, a fortiori, the finding that the right to the inviolability ofthe person has been infringed.

44                              In the opinion of my colleagues Binnie and LeBel JJ., there is aninternal mechanism that safeguards the public health system. According tothem, Quebeckers may go outside the province for treatment where services arenot available in Quebec. This possibility is clearly not a solution for thesystems deficiencies. The evidence did not bring to light any administrativemechanism that would permit Quebeckers suffering as a result of waiting timesto obtain care outside the province. The possibility of obtaining care outsideQuebec is case‑specific and is limited to crisis situations.

45                              I find that the trial judge did not err in finding that the prohibitionon insurance for health care already insured by the state constitutes aninfringement of the right to life and security. This finding is no less truein the context of s. 1 of the Quebec Charter. Quebeckers aredenied a solution that would permit them to avoid waiting lists, which are usedas a tool to manage the public plan. I will now consider the justificationadvanced under s. 9.1 of the Quebec Charter.

VI.  Justification for the Prohibition

46                              Section 9.1 of the Quebec Charter sets out the standard forjustification. It reads as follows:

9.1. In exercising his fundamental freedoms and rights, a personshall maintain a proper regard for democratic values, public order and thegeneral well‑being of the citizens of Qubec.

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

47                              The Court had occasion to consider the scope of this provision in Fordv. Quebec (Attorney General), [1988] 2 S.C.R. 712. In its view,in the context of the relationship between citizens and the state, theprovision is of the same nature as s. 1 of the Canadian Charter (atpp. 769‑71):

It was suggested in argument that because of itsquite different wording s. 9.1 was not a justificatory provision similarto s. 1 but merely a provision indicating that the fundamental freedomsand rights guaranteed by the Quebec Charter are not absolute butrelative and must be construed and exercised in a manner consistent with thevalues, interests and considerations indicated in s. 9.1 democraticvalues, public order and the general well‑being of the citizens ofQubec. In the case at bar the Superior Court and the Court of Appeal heldthat s. 9.1 was a justificatory provision corresponding to s. 1 ofthe Canadian Charter and that it was subject, in its application, to asimilar test of rational connection and proportionality. This Court agreeswith that conclusion. The first paragraph of s. 9.1 speaks of the mannerin which a person must exercise his fundamental freedoms andrights. That is not a limit on the authority of government but rather doessuggest the manner in which the scope of the fundamental freedoms and rights isto be interpreted. The second paragraph of s. 9.1, however In thisrespect, the scope of the freedoms and rights, and limits to their exercise,may be fixed by law does refer to legislative authority to impose limits onthe fundamental freedoms and rights. The words In this respect refer to thewords maintain a proper regard for democratic values, public order and thegeneral well‑being of the citizens of Qubec. Read as a whole,s. 9.1 provides that limits to the scope and exercise of the fundamentalfreedoms and rights guaranteed may be fixed by law for the purpose ofmaintaining a proper regard for democratic values, public order and the generalwell‑being of the citizens of Quebec. That was the view taken ofs. 9.1 in both the Superior Court and the Court of Appeal. As for theapplicable test under s. 9.1, Boudreault J. in the Superior Courtquoted with approval from a paper delivered by Raynold Langlois, Q.C.,entitled Les clauses limitatives des Chartes canadienne et qubcoise des droitset liberts et le fardeau de la preuve, and published in Perspectives canadienneset europennes des droits de la personne (1986), in which the authorexpressed the view that under s. 9.1 the government must show that therestrictive law is neither irrational nor arbitrary and that the means chosenare proportionate to the end to be served. In the Court of Appeal, Bisson J.A.adopted essentially the same test. He said that under s. 9.1 thegovernment has the onus of demonstrating on a balance of probabilities that theimpugned means are proportional to the object sought. He also spoke of thenecessity that the government show the absence of an irrational or arbitrarycharacter in the limit imposed by law and that there is a rational link betweenthe means and the end pursued. We are in general agreement with thisapproach. . . . [I]t is an implication of the requirement that alimit serve one of these ends that the limit should be rationally connected tothe legislative purpose and that the legislative means be proportionate to theend to be served. That is implicit in a provision that prescribes that certainvalues or legislative purposes may prevail in particular circumstances over afundamental freedom or right. That necessarily implies a balancing exerciseand the appropriate test for such balancing is one of rational connection andproportionality.

48                              The interpretation adopted by the Court in that decision still appliestoday, and the analytical approach developed in R. v. Oakes, [1986]1 S.C.R. 103, must be followed. This approach is well known. First,the court must determine whether the objective of the legislation is pressingand substantial. Next, it must determine whether the means chosen to attainthis legislative end are reasonable and demonstrably justifiable in a free anddemocratic society. For this second part of the analysis, three tests must bemet:  (1) the existence of a rational connection between themeasure and the aim of the legislation; (2) minimal impairment of theprotected right by the measure; and (3) proportionality between the effectof the measure and its objective (Egan v. Canada, [1995]2 S.C.R. 513, at para. 182). It is the minimal impairmentanalysis that has proven to be the most delicate stage in the instant case.The other stages cannot, however, be bypassed.

A.  Purpose of the Statute

49                              The prohibitions are set out in the HOIA and the HEIA.The general objective of these statutes is to promote health care of thehighest possible quality for all Quebeckers regardless of their ability topay. Quality of care and equality of access are two inseparable objectivesunder the statutes. At trial, Claude Castonguay, who was QuebecsMinister of Health at the time when the HEIA was enacted, testifiedregarding the legislations objectives:

[translation]. . . we wanted to ensure that everyone would have access to healthcare, regardless of their ability to pay. Also, because the Health InsuranceAct was part of a whole there was Bill 65 respecting health services we wanted a thorough reform. We wanted access to health care to be as equal aspossible everywhere in Quebec, regardless of place of residence, regardless offinancial circumstances . . . .

50                              The quality objective is not formally stated, but it seems clear that ahealth care service that does not attain an acceptable level of quality of carecannot be regarded as a genuine health care service. Low‑qualityservices can threaten the lives of users. The legislature accordingly requiredthat there be supervision of health care. That supervision is essential toguarantee not only the quality of care, but also public safety.

51                              To ensure supervision of these services, the AHSSS provides forprogram planning (s. 346), organization of services (ss. 347‑49),allocation of financial resources (ss. 350‑51), coordination ofhealth services and social services (ss. 352‑70), and management ofhuman, material and financial resources (ss. 376‑85). Aninstitution that provides services may be private and may receive governmentfunding, in which case it is referred to as a private institution underagreement. In such cases, the state delegates its responsibilities to aprivate sector service provider. The services of public institutions andprivate institutions under agreement relate, on the whole, to a single offer ofservices, namely the one established by the government. If a legal or naturalperson wishes to provide health services or social services contemplated by theAHSSS from an institution, the person must obtain a permit to operate aninstitution (ss. 316 and 437). Because private institutions are notprohibited by the AHSSS, the Minister may not refuse to issue a permitsolely because he or she wishes to slow down the development of privateinstitutions that are not under agreement (Charles Bentley Nursing HomeInc. v. Ministre des Affaires sociales, [1978] C.S. 30)(see M. Laverdire, Le cadre juridique canadien et qubcois relatifau dveloppement parallle de services privs de sant et larticle 7 dela Charte canadienne des droits et liberts (1998‑1999), 29 R.D.U.S. 117).

52                              The HOIA and the HEIA provide that, within the frameworkthey establish, the state is responsible for the provision and funding ofhealth services. The HEIA provides (s. 3) that the state is to paythe cost of services rendered by a physician that are medically required aswell as certain other services provided by, inter alia, dentists,pharmacists and optometrists. The insured services are funded by the state outof public moneys. The only contribution made by recipients of services towardthe cost is through their income tax, if they are liable to pay income tax.The services covered must be provided by participating professionals or byprofessionals who have withdrawn, although these professionals may notreceive any fees in addition to those paid by the state (s. 22). Thepurpose of the HOIA is to ensure that hospital care is provided free ofcharge. The Act provides that hospital services are insured where they aremedically required so that Quebeckers receive hospital services without chargeand upon uniform terms and conditions (s. 2).

53                              It can be seen from this brief review of the legislation governinghealth services that such services are controlled almost entirely by the state.

54                              Although there are, at first glance, no provisions that prohibit theprovision of services by an individual or a legal person established for aprivate interest, a number of constraints are readily apparent. In addition tothe restrictions relating to the remuneration of professionals, the requirementthat a permit be obtained to provide hospital services creates a seriousobstacle in practice. This constraint would not be problematic if theprevailing approach favoured the provision of private services. However, thatis not the case. Not only are the restrictions real (Laverdire, atp. 170), but Mr. Chaoullis situation shows clearly that they are.Here again, the executive branch is implementing the intention of the Quebeclegislature to limit the provision of private services outside the publicplan. That intention is evident in the preliminary texts tabled in theNational Assembly, in the debate concerning those texts and, finally, in thewritten submissions filed by the Attorney General of Quebec in the instantcase.

55                              Section 11 HOIA and s. 15 HEIA convey thisintention clearly. They render any proposal to develop private professionalservices almost illusory. The prohibition on private insurance creates anobstacle that is practically insurmountable for people with average incomes.Only the very wealthy can reasonably afford to pay for entirely privateservices. Assuming that a permit were issued, the operation of an institutionthat is not under agreement is the exception in Quebec. In fact, the trialjudge found that the effect of the prohibition was to significantly limit theprivate provision of services that are already available under the public plan(at p. 812). This observation relates to the effects of the prohibition.These effects must not be confused with the objective of the legislation.According to the Attorney General of Quebec, the purpose of the prohibition isto preserve the integrity of the public health care system. From thisperspective, the objective appears at first glance to be pressing andsubstantial. Its pressing and substantial nature can be confirmed byconsidering the historical context.

56                              Government involvement in health care came about gradually. Initiallylimited to extreme cases, such as epidemics or infectious diseases, thegovernments role has expanded to become a safety net that ensures that thepoorest people have access to basic health care services. The enactment of thefirst legislation providing for universal health care was a response to a needfor social justice. According to Dr. Fernand Turcotte, [translation] it was recognized [duringthe 1920s] that illness had become the primary cause of impoverishment forCanadians, owing to the loss of work that almost always results from seriousillness and the loss of family assets, which were inevitably swallowed up topay for health care (report by F. Turcotte, Le temps dattente commeinstrument de gestion du rationnement dans les services de sant du Canada (1998),at p. 4). Since the government passed legislation based on its view thatit had to be the principal actor in the health care sphere, it is easy tounderstand its distrust of the private sector. At the stage of analysis of theobjective of the legislation, I believe that preserving the public plan is apressing and substantial purpose.

B.  Proportionality

(1)  Rational Connection

57                              The next question is whether the prohibition on private insurance has arational connection with the objective of preserving the public plan. Doesthis measure assist the state in implementing a public plan that provides high‑qualityhealth care services that are accessible to all residents of Quebec?

58                              According to the trial judge, the effect of the measure adopted by thestate is to significantly limit private health care. Although the effect ofa measure is not always indicative of a rational connection between the measureand its objective, in the instant case the consequences show an undeniableconnection between the objective and the measure. The public plan is preservedbecause it has a quasi‑monopoly.

(2)  Minimal Impairment

59                              The trial judge made certain assertions that suggest she found that themeasure met the minimal impairment test. However, her approach was notappropriate to s. 9.1 of the Quebec Charter. Her comments musttherefore be considered in their context, not only because she failed toaddress the Quebec Charter, but also because she appears to have placedthe onus on the appellants to prove that private insurance would provide asolution to the problem of waiting lists (at p. 796):

[translation]The Court further finds that although some of these specialists indicated adesire to be free to obtain private insurance, none of them gave their full andabsolute support to the applicants proposals, as they explained that it wasneither clear nor obvious that a reorganization of the health system with aparallel private system would solve all the existing problems of delays andaccess. On the contrary, the specialists who testified remained quitecircumspect about this complex and difficult question.

60                              The burden of proof does not rest on the appellants. Under s. 9.1of the Quebec Charter, the onus was on the Attorney General of Quebec toprove that the prohibition is justified. He had to show that the measure metthe minimal impairment test. The trial judge did not consider the evidence onthe basis that there was a burden on the Attorney General of Quebec.

61                              To determine whether the Attorney General of Quebec has discharged thisburden, I will begin by analysing the expert evidence submitted to the SuperiorCourt. I will then examine the situations in the other provinces of Canada andin certain countries of the Organization for Economic Cooperation andDevelopment (OECD). Finally, I will address the deference the Court mustshow where the government has chosen among a number of measures that may impairprotected rights.

(a) The Experts WhoTestified at Trial and Whose Evidence was Accepted by the Superior Court Judge

62                              As can be seen from the evidence, the arguments made in support of theposition that the integrity of the public system could be jeopardized byabolishing the prohibition can be divided into two groups. The first group ofarguments relates to human reactions of the various people affected by thepublic plan, while the second group relates to the consequences for the planitself.

63     (i)  Human reactions

1.  Some witnesses asserted that theemergence of the private sector would lead to a reduction in popular support inthe long term because the people who had private insurance would no longer seeany utility for the public plan.  Dr. Howard Bergman citedan article in his expert report. Dr. Theodore Marmor supported thisargument but conceded that he had no way to verify it.

2.  Some witnesses were of the opinionthat the quality of care in the public plan would decline because the mostinfluential people would no longer have any incentive to bring pressure forimprovements to the plan. Dr. Bergman cited a study by the World Bank insupport of his expert report. Dr. Marmor relied on this argument butconfirmed that there is no direct evidence to support this view.

3.  There would be a reduction in humanresources in the public plan because many physicians and other health careprofessionals would leave the plan out of a motive forprofit:  Dr. Charles D. Wright cited a study done inthe United Kingdom, but admitted that he had read only a summary and not thestudy itself. Although Dr. Marmor supported the assertion, he testifiedthat there is really no way to confirm it empirically. In his opinion, it issimply a matter of common sense.

4.  An increase in the use of privatehealth care would contribute to an increase in the supply of care for profitand lead to a decline in the professionalism and ethics of physicians workingin hospitals.  No study was cited in support of this opinion thatseems to be based only on the witnesses common sense.

64                              It is apparent from this summary that for each threat mentioned, nostudy was produced or discussed in the Superior Court. While it is true thatscientific or empirical evidence is not always necessary, witnesses in a casein which the arguments are supposedly based on logic or common sense should beable to cite specific facts in support of their conclusions. The humanreactions described by the experts, many of whom came from outside Quebec, donot appear to me to be very convincing, particularly in the context of Quebeclegislation. Participation in the public plan is mandatory and there is norisk that the Quebec public will abandon the public plan. The states role isnot being called into question. As well, the HEIA contains a clearprovision authorizing the Minister of Health to ensure that the public plan isnot jeopardized by having too many physicians opt for the private system(s. 30 HEIA). The evidence that the existence of the health caresystem would be jeopardized by human reactions to the emergence of a privatesystem carries little weight.

65     (ii)  Impact on the public plan

1.  There would be an increase in overallhealth expenditures:  the alleged increase would come primarily fromthe additional expenditures incurred by individuals who decide to take outprivate insurance; the rest of the increase in costs would be attributable tothe cost of management of the private system by the state.

2.  Insurers would reject the most acutepatients, leaving the most serious cases to be covered by the public plan.

3.  In a private system, physicians wouldtend to lengthen waiting times in the public sector in order to direct patientsto the private sector from which they would derive a profit.

66                              Once again, I am of the opinion that the reaction some witnessesdescribed is highly unlikely in the Quebec context. First, if the increase inoverall costs is primarily attributable to the individual cost of insurance, itwould be difficult for the state to prevent individuals who wished to pay suchcosts from choosing how to manage their own finances. Furthermore, because thepublic plan already handles all the serious cases, I do not see how the situationcould be exacerbated if that plan were relieved of the clientele with lessserious health problems. Finally, because of s. 1(e), non‑participatingphysicians may not practise as participants; they will not therefore be facedwith the conflict of interest described by certain witnesses. As forphysicians who have withdrawn (s. 1(d) HEIA), the statecontrols their conditions of practice by way of the agreements (s. 1(f)HEIA) they are required to sign. Thus, the state can establish aframework of practice for physicians who offer private services.

67                              The trial judges assessment of the evidence was founded on the ideathat the appellants had to prove that abolishing the prohibition would improvethe public plan. She also analysed the case from the perspective of s. 7of the Canadian Charter, which placed the burden on the appellantsrather than on the Attorney General of Quebec. Furthermore, a number ofwitnesses failed to consider the legislation specific to Quebec. Thecombination of these three oversights or errors means that the findings must bequalified and adapted to s. 9.1 of the Quebec Charter.

68                              Upon completing her analysis, the judge drew the following conclusion(at p. 827):

[translation] Theseprovisions are based on the fear that the establishment of a privatehealth care system would rob the public sector of a significant portion of theavailable health care resources. [Emphasis added.]

Thus, thejudges finding that the appellants had failed to show that the scope of theprohibition was excessive and that the principles of fundamental justice hadnot been violated was based solely on the fear of an erosion of resources ora threat [to] the integrity of the system (at p. 827; emphasisdeleted). But the appellants did not have the burden of disproving every fearor every threat. The onus was on the Attorney General of Quebec to justify theprohibition. Binnie and LeBel JJ. rely on a similar test in assertingthat private health care would likely have an impact on the public plan. Thisstandard does not meet the requirement of preponderance under s. 9.1 ofthe Quebec Charter. It can be seen from the evidence that the AttorneyGeneral of Quebec failed to discharge his burden of proving that a totalprohibition on private insurance met the minimal impairment test.

69                              There is other evidence in the record that might be of assistance in thejustification analysis. In this regard, it is useful to observe the approachesof the other Canadian provinces because they also operate within the financialframework established by the Canada Health Act.

(b)  Overview of Other ProvincialPlans

70                              The approach to the role of the private sector taken by the other nineprovinces of Canada is by no means uniform. In addition to Quebec, six otherprovinces have adopted measures to discourage people from turning to theprivate sector. The other three, in practice, give their residents freeaccess to the private sector.

71                              Ontario (Health Care Accessibility Act, R.S.O. 1990,c. H.3, s. 2), Nova Scotia (Health Services and Insurance Act,R.S.N.S. 1989, c. 197, s. 29(2)) and Manitoba (HealthServices Insurance Act, R.S.M. 1987, c. H35, s. 95(1))prohibit non‑participating physicians from charging their patients morethan what physicians receive from the public plan. In practice, there is nofinancial incentive to opt for the private sector. It is worth noting thatNova Scotia does not prohibit insurance contracts to cover health careobtained in the private sector. Ontario and Manitoba prohibit insurancecontracts but refund amounts paid by patients to non‑participatingphysicians.

72                              Alberta (Alberta Health Care Insurance Act, R.S.A. 2000,c. A‑20, s. 9(1)), British Columbia (Medicare Protection Act,R.S.B.C. 1996, c. 286, s. 18(2)) and Prince Edward Island (HealthServices Payment Act, R.S.P.E.I. 1988, c. H‑2, ss. 10,10.1 and 14.1) have adopted a very different approach. In those provinces, non‑participatingphysicians are free to set the amount of their fees, but the cost of theservices is not refunded and contracts for insurance to cover services offeredby the public plan are prohibited. This is the same policy as has been adoptedby Quebec.

73                              Saskatchewan (Saskatchewan Medical Care Insurance Act,R.S.S. 1978, c. S‑29, s. 18(1.1)), New Brunswick (MedicalServices Payment Act, R.S.N.B. 1973, c. M‑7, s. 2.01(a),and General Regulation ‑ Medical Services Payment Act, N.B.Reg. 84‑20, Sch. 2, para. n.1), and Newfoundland andLabrador (Medical Care Insurance Act, 1999, S.N.L. 1999, c. M‑5.1,s. 10(5), and Medical Care Insurance Insured Services Regulations,C.N.L.R. 21/96, s. 3) are open to the private sector.New Brunswick allows physicians to set their own fees. In Saskatchewan,this right is limited to non‑participating physicians. The cost is notrefunded by the public plan, but patients may purchase insurance to cover thosecosts. Newfoundland and Labrador agrees to reimburse patients, up to theamount covered by the public plan, for fees paid to non‑participatingphysicians. In Newfoundland and Labrador, patients may subscribe to privateinsurance to cover the difference.

74                              Even if it were assumed that the prohibition on private insurance couldcontribute to preserving the integrity of the system, the variety of measuresimplemented by different provinces shows that prohibiting insurance contractsis by no means the only measure a state can adopt to protect the systemsintegrity. In fact, because there is no indication that the public plans ofthe three provinces that are open to the private sector suffer fromdeficiencies that are not present in the plans of the other provinces, it mustbe deduced that the effectiveness of the measure in protecting the integrity ofthe system has not been proved. The example illustrated by a number of otherCanadian provinces casts doubt on the argument that the integrity of the publicplan depends on the prohibition against private insurance. Obviously, sinceQuebecs public plan is in a quasi‑monopoly position, its predominance isassured. Also, the regimes of the provinces where a private system isauthorized demonstrate that public health services are not threatened byprivate insurance. It can therefore be concluded that the prohibition is notnecessary to guarantee the integrity of the public plan.

75                              In the context of s. 9.1 of the Quebec Charter, I mustconclude that a comparison with the plans of the other Canadian provinces doesnot support the position of the Attorney General of Quebec.

76                              There are also many reports in the record on which to base an overviewof current practices in several OECD countries.

c)  Overview of Practices inCertain OECD Countries

77                              Mr. Chaoulli, echoed by at least one of the witnesses(Dr. Coffey), argued that Canada is the only OECD country to prohibitinsurance for health care provided by non‑participating physicians. Thisassertion must be clarified as it relates to Canada:  it is true ofonly six provinces. It must also be qualified in the internationalcontext:  while no such prohibition is found in any other OECD country,it should nonetheless be mentioned that measures to protect the public planhave been implemented in a number of countries, even some of the countrieswhose health care plans have been provided as models. There is no singlemodel; the approach in Europe is no more uniform than in Canada.

78                              In a number of European countries, there is no insurance paid fordirectly out of public funds. In Austria, services are funded throughdecentralized agencies that collect the necessary funds from salaries. Peoplewho want to obtain health care in the private sector in addition to theservices covered by the mandatory social insurance are free to do so, butprivate insurance may cover no more than 80 percent of the cost billed byprofessionals practising in the public sector. The same type of plan exists inGermany and the Netherlands, but people who opt for private insurance are notrequired to pay for the public plan. Only nine percent of Germans opt forprivate insurance.

79                              Australias public system is funded in a manner similar to the Quebecsystem. However, Australias system is different in that the private andpublic sectors coexist, and insurance covering private sector health care isnot prohibited. The government attempts to balance access to the two sectors byallowing taxpayers to deduct 30 percent of the cost of private insurance.Insurance rates are regulated to prevent insurers from charging higher premiumsfor higher‑risk individuals (C. H. Tuohy, C. M. Floodand M. Stabile, How Does Private Finance Affect Public Health CareSystems? Marshaling the Evidence from OECD Nations (2004), 29 J. HealthPol. 359).

80                              The United Kingdom does not restrict access to private insurance forhealth care (The Health of Canadians The Federal Role, Vol. 3, HealthCare Systems in Other Countries, Interim Report (2002), at p. 38).Nor does the United Kingdom limit a physicians ability to withdraw from thepublic plan. However, physicians working full‑time in public hospitalsare limited in the amounts that they may bill in the private sector tosupplement income earned in the public sector (at p. 40). Only11.5 percent of Britons had taken out private insurance in 1998 (Tuohy,Flood and Stabile, at p. 374), and only eight percent of hospital beds inthe United Kingdom are private (Quebec and France, HealthIndicators:  International Comparisons:  15 years ofEvolution:  Canada, France, Germany, Qubec, United Kingdom, UnitedStates (1998), at p. 55). New Zealand has a plan similar to thatof the United Kingdom with the difference that 40 percent ofNew Zealanders have private insurance (Tuohy, Flood and Stabile, atp. 363).

81                              Sweden does not prohibit private insurance, and the state does notrefund the cost of health care paid for in the private sector. Privateinsurance accounts for only two percent of total health care expenditures andthere are only nine private hospitals (The Health of Canadians The FederalRole, at pp. 31‑33).

82                              It can be seen from the systems in these various OECD countries that anumber of governments have taken measures to protect their public plans fromabuse. The measures vary from country to country depending on the nature oftheir specific systems. For example, in the United Kingdom, there are limitson the amounts physicians may earn in the private sector in addition to whatthey receive from the public plan. Australia has opted to regulate insurancepremiums, but it is alone in this respect.

83                              As can be seen from the evolution of public plans in the few OECDcountries that have been examined in studies produced in the record, there area wide range of measures that are less drastic, and also less intrusive inrelation to the protected rights. The Quebec context is a singular one, notonly because of the distinction between participating physicians, non‑participatingphysicians and physicians who have withdrawn (s. 1 HEIA), but alsobecause the Minister may require non‑participating physicians to providehealth services if he or she considers it likely that the services will not beprovided under uniform conditions throughout Quebec or in a particular region(s. 30 HEIA). A measure as drastic as prohibiting privateinsurance contracts appears to be neither essential nor determinative.

84                              It cannot therefore be concluded from the evidence relating to theQuebec plan or the plans of the other provinces of Canada, or from theevolution of the systems in place in various OECD countries, that the AttorneyGeneral of Quebec has discharged his burden of proof under s. 9.1 of the QuebecCharter. A number of measures are available to him to protect theintegrity of Quebecs health care plan. The choice of prohibiting privateinsurance contracts is not justified by the evidence. However, is this a casein which the Court should show deference?

(d)  Level of Deference Required

85                              In the past, the Court has considered the question of the basis of itspower of judicial review (Hunter v. Southam Inc., [1984]2 S.C.R. 145, at p. 155; Vriend v. Alberta, [1998]1 S.C.R. 493, at para. 56; Reference re Secession of Quebec,[1998] 2 S.C.R. 217, at para. 98), and it is not necessary toretrace the source of the powers deriving from s. 52 of the ConstitutionAct, 1982 and s. 52 of the Quebec Charter. Section 52 ofthe Quebec Charter reads as follows:

52. No provision of any Act, even subsequent to the Charter,may derogate from sections 1 to 38, except so far as provided by thosesections, unless such Act expressly states that it applies despite the Charter.

However, ascan be seen from the large number of interveners in this appeal, differences ofviews over the emergence of a private health care plan have a polarizing effecton the debate, and the question of the deference owed to the government by thecourts must be addressed. Some of the interveners urge the courts to step in,while others argue that this is the role of the state. It must be possible tobase the criteria for judicial intervention on legal principles and not on asocio‑political discourse that is disconnected from reality.

86                              Under the charters, the government is responsible for justifyingmeasures it imposes that impair rights. The courts can consider evidenceconcerning the historical, social and economic aspects, or any other evidencethat may be material.

87                              It cannot be said that the government lacks the necessary resources toshow that its legislative action is motivated by a reasonable objectiveconnected with the problem it has undertaken to remedy. The courts are anappropriate forum for a serious and complete debate. As G. Davidov saidin The Paradox of Judicial Deference (2000‑2001), 12 N.J.C.L. 133,at p. 143, [c]ourts do not have to define goals, choose means or come upwith ideas. They do not have to create social policies; they just have tounderstand what the other branches have created. No special expertise isrequired for such an understanding. In fact, if a court is satisfied that allthe evidence has been presented, there is nothing that would justify it inrefusing to perform its role on the ground that it should merely defer to thegovernments position. When the courts are given the tools they need to make adecision, they should not hesitate to assume their responsibilities. Deferencecannot lead the judicial branch to abdicate its role in favour of thelegislative branch or the executive branch.

88                              The question submitted by the appellants has a factual content that was analysedby the trial judge. One part of her findings must be adapted to the context ofs. 9.1 of the Quebec Charter. The other findings remainunchanged. The questions of law are not complex.

89                              The courts have a duty to rise above political debate. They leave it tothe legislatures to develop social policy. But when such social policiesinfringe rights that are protected by the charters, the courts cannot shy awayfrom considering them. The judicial branch plays a role that is not played bythe legislative branch. Professor Roach described the complementary roleof the courts vis‑‑vis the legislature asfollows (K. Roach, Dialogic Judicial Review and its Critics (2004),23 Sup. Ct. L. R. (2d) 49, at pp. 69‑71):

[Some] unique attributes of courts include their commitment to allowingstructured and guaranteed participation from aggrieved parties; theirindependence from the executive, and their commitment to giving reasons fortheir decisions. In addition, courts have a special commitment to make senseof legal texts that were democratically enacted as foundational documents.

. . . The pleader in court has a guaranteed right ofparticipation and a right to a reasoned decision that addresses the argumentsmade in court, as well as the relevant text of the democratically enactedlaw. . . .

Judges can add value to societal debates aboutjustice by listening to claims of injustice and by promoting values andperspectives that may not otherwise be taken seriously in the legislativeprocess.

90                              From this perspective, it is through the combined action of legislaturesand courts that democratic objectives can be achieved. In their analysis ofthe Quebec secession reference, Choudhry and Howse describe this division ofconstitutional responsibilities accurately (S. Choudhry and R. Howse,Constitutional Theory and The Quebec Secession Reference (2000),13 Can. J. L. & Jur. 143, at pp. 160‑61):

[I]nterpretive responsibility for particular constitutional norms isboth shared and divided. It is shared to the extent that courts areresponsible for articulating constitutional norms in their conceptuallyabstract form. But interpretive responsibility is divided because beyond thelimits of doctrine, constitutional interpretation is left to the politicalorgans. The image which emerges is one of judicial and legislativecooperation in the molding of concrete standards through which elusive andcomplex constitutional norms . . . come to be applied.

91                              To refuse to exercise the power set out in s. 52 of the QuebecCharter would be to deny that provision its real meaning and to depriveQuebeckers of the protection to which they are entitled.

92                              In a given case, a court may find that evidence could not be presentedfor reasons that it considers valid, be it due to the complexity of theevidence or to some other factor. However, the government cannot argue thatthe evidence is too complex without explaining why it cannot be presented. Ifsuch an explanation is given, the court may show greater deference to thegovernment. Based on the extent of the impairment and the complexity of theevidence considered to be necessary, the court can determine whether thegovernment has discharged its burden of proof.

93                              The courts reasons for showing deference must always reflect the twoguiding principles of justification: the measure must be consistent withdemocratic values and it must be necessary in order to maintain public orderand the general well‑being of citizens. The variety of circumstancesthat may be presented to a court is not conducive to the rigidity of anexhaustive list.

94                              In past cases, the Court has discussed a number of situations in whichcourts must show deference, namely situations in which the government isrequired to mediate between competing interests and to choose between a numberof legislative priorities (Irwin Toy Ltd. v. Quebec (Attorney General),[1989] 1 S.C.R. 927, at pp. 993‑94). It is also possibleto imagine situations in which a government might lack time to implementprograms or amend legislation following the emergence of new social, economicor political conditions. The same is true of an ongoing situation in which thegovernment makes strategic choices with future consequences that a court is notin a position to evaluate.

95                              In short, a court must show deference where the evidence establishesthat the government has assigned proper weight to each of the competinginterests. Certain factors favour greater deference, such as the prospectivenature of the decision, the impact on public finances, the multiplicity ofcompeting interests, the difficulty of presenting scientific evidence and thelimited time available to the state. This list is certainly not exhaustive.It serves primarily to highlight the facts that it is up to the government tochoose the measure, that the decision is often complex and difficult, and thatthe government must have the necessary time and resources to respond. However,as McLachlin J. (as she then was) said in RJR‑MacDonald Inc. v.Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 136,. . . care must be taken not to extend the notion of deference toofar.

96                              The instant case is a good example of a case in which the courts haveall the necessary tools to evaluate the governments measure. Ample evidencewas presented. The government had plenty of time to act. Numerous commissionshave been established (Commission dtude sur les services de sant et lesservices sociaux (Quebec) (Clair Commission), 2001; Comit sur la pertinence etla faisabilit dun rgime universel public dassurance mdicaments (Quebec) (MontmarquetteCommittee), 2001; Commission on the Future of Health Care in Canada (Canada) (RomanowCommission), 2002), and special or independent committees have publishedreports (Quebec, Emerging Solutions:  Report and Recommendations(2000) (Clair Report); Quebec, Pour un rgime dassurance mdicaments quitableet viable (2001) (Montmarquette Report); Canada, The Health ofCanadians The Federal Role, Vol. 6, Recommendations forReform, Final Report (2002) (Kirby Report); Canada, Waiting Listsand Waiting Times for Health Care in Canada: More Management!! More Money?(1998)). Governments have promised on numerous occasions to find a solution tothe problem of waiting lists. Given the tendency to focus the debate on asociopolitical philosophy, it seems that governments have lost sight of theurgency of taking concrete action. The courts are therefore the last line of defencefor citizens.

97                              For many years, the government has failed to act; the situationcontinues to deteriorate. This is not a case in which missing scientific datawould allow for a more informed decision to be made. The principle of prudencethat is so popular in matters relating to the environment and to medicalresearch cannot be transposed to this case. Under the Quebec plan, thegovernment can control its human resources in various ways, whether by usingthe time of professionals who have already reached the maximum for payment bythe state, by applying the provision that authorizes it to compel even non‑participatingphysicians to provide services (s. 30 HEIA) or by implementing lessrestrictive measures, like those adopted in the four Canadian provinces that donot prohibit private insurance or in the other OECD countries. While thegovernment has the power to decide what measures to adopt, it cannot choose todo nothing in the face of the violation of Quebeckers right to security. Thegovernment has not given reasons for its failure to act. Inertia cannot beused as an argument to justify deference.

98                              In the instant case, the effectiveness of the prohibition has by nomeans been established. The government has not proved, by the evidence in therecord, that the measure minimally impairs the protected rights. Moreover, theevidence shows that a wide variety of measures are available to governments, ascan be seen from the plans of other provinces and other countries.

(3)  Proportionality

99                              Having found that s. 15 HEIA and s. 11 HOIA donot meet the minimal impairment test, I do not need to considerproportionality. If the prohibition is not minimally impairing, it obviouslycannot be regarded as a measure that sufficiently addresses the effect of themeasure on the protected rights.

VII.  Conclusion

100                          The relief sought by the appellants does not necessarily provide acomplete response to the complex problem of waiting lists. However, it was notup to the appellants to find a way to remedy a problem that has persisted for anumber of years and for which the solution must come from the state itself.Their only burden was to prove that their right to life and to personalinviolability had been infringed. They have succeeded in proving this. TheAttorney General of Quebec, on the other hand, has not proved that the impugnedmeasure, the prohibition on private insurance, was justified under s. 9.1of the Quebec Charter. Given that this finding is sufficient todispose of the appeal, it is not necessary to answer the other constitutionalquestions.

101                          For these reasons, I would allow the appeal with costs throughout andwould answer the questions relating to the Quebec Charter as follows:

Question 1: Does s. 11 of the HospitalInsurance Act, R.S.Q., c. A‑28, infringe the rights guaranteedby s. 1 of the Quebec Charter?

Answer: Yes.

Question 2: If so, is theinfringement a reasonable limit prescribed by law as can demonstrably justifiedin a free and democratic society under s. 9.1 of the Quebec Charter?

Answer: No.

Question 3: Does s. 15 of the HealthInsurance Act, R.S.Q., c. A‑29, infringe the rights guaranteedby s. 1 of the Quebec Charter?

Answer: Yes.

Question 4: If so, is the infringementa reasonable limit prescribed by law as can be demonstrably justified in a freeand democratic society under s. 9.1 of the Quebec Charter?

Answer: No.

The reasons of McLachlin C.J. and Major and Bastarache JJ. weredelivered by

102                          The Chief Justice and Major J. We concur in the conclusion of our colleague Deschamps J. that the prohibitionagainst contracting for private health insurance violates s. 1 of the Quebec Charterof Human Rights and Freedoms, R.S.Q., c. C-12, and is not justifiable unders. 9.1. On the argument that the anti-insurance provision also violates s. 7of the Canadian Charter of Rights and Freedoms (Charter), weconclude that the provision impermissibly limits the right to life, liberty andsecurity of the person protected by s. 7 of the Charter and has notbeen shown to be justified as a reasonable limit under s. 1 of the Charter.

103                          The appellants do not seek an order that the government spend more moneyon health care, nor do they seek an order that waiting times for treatmentunder the public health care scheme be reduced. They only seek a ruling thatbecause delays in the public system place their health and security at risk,they should be allowed to take out insurance to permit them to access private services.

104                          The Charter does not confer a freestanding constitutional rightto health care. However, where the government puts in place a scheme toprovide health care, that scheme must comply with the Charter. We areof the view that the prohibition on medical insurance in s. 15 of the HealthInsurance Act, R.S.Q., c. A-29, and s. 11 of the Hospital Insurance Act,R.S.Q., c. A-28 (see Appendix A) violates s. 7 of the Charter because itimpinges on the right to life, liberty and security of the person in anarbitrary fashion that fails to conform to the principles of fundamentaljustice.

105                          The primary objective of the Canada Health Act, R.S.C. 1985, c.C-6, is to protect, promote and restore the physical and mental well‑beingof residents of Canada and to facilitate reasonable access to healthservices without financial or other barriers (s. 3). By imposingexclusivity and then failing to provide public health care of a reasonablestandard within a reasonable time, the government creates circumstances thattrigger the application of s. 7 of the Charter.

106                          The Canada Health Act, the Health Insurance Act, and the HospitalInsurance Act do not expressly prohibit private health services. However,they limit access to private health services by removing the ability tocontract for private health care insurance to cover the same services coveredby public insurance. The result is a virtual monopoly for the public healthscheme. The state has effectively limited access to private health careexcept for the very rich, who can afford private care without need ofinsurance. This virtual monopoly, on the evidence, results in delays in treatmentthat adversely affect the citizens security of the person. Where a lawadversely affects life, liberty or security of the person, it must conform tothe principles of fundamental justice. This law, in our view, fails to do so.

107                          While the decision about the type of health care system Quebec shouldadopt falls to the Legislature of that province, the resulting legislation,like all laws, is subject to constitutional limits, including those imposed bys. 7 of the Charter. The fact that the matter is complex, contentiousor laden with social values does not mean that the courts can abdicate theresponsibility vested in them by our Constitution to review legislation for Chartercompliance when citizens challenge it. As this Court has said on a number ofoccasions, it is the high duty of this Court to insure that the Legislaturesdo not transgress the limits of their constitutional mandate and engage in theillegal exercise of power: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R.486, at p. 497, per Lamer J. (as he then was), quoting AmaxPotash Ltd. v. Government of Saskatchewan, [1977] 2 S.C.R. 576, at p. 590, perDickson J. (as he then was).

108                          The government defends the prohibition on medical insurance on theground that the existing system is the only approach to adequate universalhealth care for all Canadians. The question in this case, however, is notwhether single-tier health care is preferable to two-tier health care. Even ifone accepts the governments goal, the legal question raised by the appellantsmust be addressed: is it a violation of s. 7 of the Charter to prohibitprivate insurance for health care, when the result is to subject Canadians tolong delays with resultant risk of physical and psychological harm? The merefact that this question may have policy ramifications does not permit us toavoid answering it.

I. Section7 of the Charter

109                          Section 7 of the Charter guarantees that everyone has the rightto life, liberty and security of the person and the right not to be deprivedthereof except in accordance with the principles of fundamental justice. Thedisposition of this appeal therefore requires us to consider (1) whether the impugnedprovisions deprive individuals of their life, liberty or security of theperson; and (2) if so, whether this deprivation is in accordance with theprinciples of fundamental justice: see e.g., R. v. Malmo-Levine,[2003] 3 S.C.R. 571, 2003 SCC 74, at para. 83.

A. Deprivationof Life, Liberty or Security of the Person

110                          The issue at this stage is whether the prohibition on insurance forprivate medical care deprives individuals of their life, liberty or security ofthe person protected by s. 7 of the Charter.

111                          The appellants have established that many Quebec residents face delaysin treatment that adversely affect their security of the person and that theywould not sustain but for the prohibition on medical insurance. It is commonground that the effect of the prohibition on insurance is to allow only thevery rich, who do not need insurance, to secure private health care in order toavoid the delays in the public system. Given the ban on insurance, mostQuebeckers have no choice but to accept delays in the medical system and theiradverse physical and psychological consequences.

112                          Delays in the public system are widespread and have serious, sometimesgrave, consequences. There was no dispute that there is a waiting list forcardiovascular surgery for life-threatening problems. Dr. Daniel Doyle, acardiovascular surgeon who teaches and practises in Quebec City, testified thata person with coronary disease is [translation]sitting on a bomb and can die at any moment. He confirmed, withoutchallenge, that patients die while on waiting lists: A.R., vol. 3, p. 461.Inevitably, where patients have life-threatening conditions, some will diebecause of undue delay in awaiting surgery.

113                          The same applies to other health problems. In a study of 200 subjectsaged 65 and older with hip fractures, the relationship between pre-operativedelay and post-operative complications and risk of death was examined. Whilethe study found no relationship between pre-operative delay and post-operativecomplications, it concluded that the risk of death within six months aftersurgery increased significantly, by 5 per cent, with the length ofpre-operative delay: A. Laberge, P. M. Bernard and P. A. Lamarche,Relationships between the delay before surgery for a hip fracture,postoperative complications and risk of death (1997), 45 Rev. Epidm. etSant Publ. 5, at p. 9.

114                          Dr. Eric Lenczner, an orthopaedic surgeon, testified that the one-yeardelay commonly incurred by patients requiring ligament reconstruction surgeryincreases the risk that their injuries will become irreparable (A.R., vol. 2,at p. 334). Dr. Lenczner also testified that 95 per cent of patients in Canadawait well over a year, and many two years, for knee replacements. While a kneereplacement may seem trivial compared to the risk of death for wait-listedcoronary surgery patients, which increases by 0.5 per cent per month (A.R.,vol. 3, at p. 450), the harm suffered by patients awaiting replacement kneesand hips is significant. Even though death may not be an issue for them, thesepatients are in pain, would not go a day without discomfort and arelimited in their ability to get around, some being confined to wheelchairs orhouse bound (A.R., vol. 2, at pp. 327-28).

115                          Both the individual members of the Standing Senate Committee on SocialAffairs, Science and Technology who intervened in this appeal and the CanadianMedical Association cited a Statistics Canada study demonstrating that over onein five Canadians who needed health care for themselves or a family member in2001 encountered some form of difficulty, from getting an appointment toexperiencing lengthy waiting times: C. Sanmartin, et al., Access toHealth Care Services in Canada, 2001 (June 2002), at p. 17.Thirty-seven per cent of those patients reported pain.

116                          In addition to threatening the life and the physical security of theperson, waiting for critical care may have significant adverse psychologicaleffects. Serious psychological effects may engage s. 7 protection for securityof the person. These need not rise to the level of nervous shock orpsychiatric illness, but must be greater than ordinary stress or anxiety: NewBrunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3S.C.R. 46, at para. 60.

117                          Studies confirm that patients with serious illnesses often experiencesignificant anxiety and depression while on waiting lists. A 2001 studyconcluded that roughly 18 per cent of the estimated five million people whovisited specialists for a new illness or condition reported that waiting forcare adversely affected their lives. The majority suffered worry, anxiety orstress as a result. This adverse psychological impact can have a serious andprofound effect on a persons psychological integrity, and is a violation ofsecurity of the person (Access to Health Care Services in Canada, 2001,at p. 20).

118                          The jurisprudence of this Court holds that delays in obtaining medicaltreatment which affect patients physically and psychologically trigger theprotection of s. 7 of the Charter. In R. v. Morgentaler, [1988]1 S.C.R. 30, Dickson C.J. concluded that the delay in obtaining therapeuticabortions, which increased the risk of complications and mortality due tomandatory procedures imposed by the state, was sufficient to trigger thephysical aspect of the womans right to security of the person: Morgentaler,at p. 59. He found that the psychological impact on women awaitingabortions constituted an infringement of security of the person. Beetz J.agreed with Dickson C.J. that [t]he delays mean therefore that the state hasintervened in such a manner as to create an additional risk to health, andconsequently this intervention constitutes a violation of the womans securityof the person: see Morgentaler, at pp. 105-106.

119                          In this appeal, delays in treatment giving rise to psychological andphysical suffering engage the s. 7 protection of security of the person just asthey did in Morgentaler. In Morgentaler, as in this case, theproblem arises from a legislative scheme that offers health services. In Morgentaler,as in this case, the legislative scheme denies people the right to accessalternative health care. (That the sanction in Morgentaler was criminalprosecution while the sanction here is administrative prohibition and penaltiesis irrelevant. The important point is that in both cases, care outside thelegislatively provided system is effectively prohibited.) In Morgentalerthe result of the monopolistic scheme was delay in treatment with attendantphysical risk and psychological suffering. In Morgentaler, as here,people in urgent need of care face the same prospect: unless they fall withinthe wealthy few who can pay for private care, typically outside the country,they have no choice but to accept the delays imposed by the legislative schemeand the adverse physical and psychological consequences this entails. As in Morgentaler,the result is interference with security of the person under s. 7 of the Charter.

120                          In Morgentaler, Dickson C.J. and Wilson J. found a deprivation ofsecurity of the person because the legislative scheme resulted in the loss ofcontrol by a woman over the termination of her pregnancy: see Morgentaler,at pp. 56 and 173.

121                          The issue in Morgentaler was whether a system for obtainingapproval for abortions (as an exception to a prohibition) that in practiceimposed significant delays in obtaining medical treatment unjustifiablyviolated s. 7 of the Charter. Parliament had established a mandatorysystem for obtaining medical care in the termination of pregnancy. Thesanction by which the mandatory public system was maintained differed:criminal in Morgentaler, administrative in the case at bar. Yet theconsequences for the individual in both cases are serious. In Morgentaler,as here, the system left the individual facing a lack of critical care with nochoice but to travel outside the country to obtain the required medical care ather own expense. It was this constraint on s. 7 security, taken from theperspective of the woman facing the health care system, and not the criminalsanction, that drove the majority analysis in Morgentaler. We thereforeconclude that the decision provides guidance in the case at bar.

122                          In Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R.519, Sopinka J., writing for the majority, held that security of the personencompasses a notion of personal autonomy involving, at the very least,control over ones bodily integrity free from state interference and freedomfrom state-imposed psychological and emotional stress (pp. 587-88). Theprohibition against private insurance in this case results in psychological andemotional stress and a loss of control by an individual over her own health.

123                          Not every difficulty rises to the level of adverse impact on security ofthe person under s. 7. The impact, whether psychological or physical, must beserious. However, because patients may be denied timely health care for acondition that is clinically significant to their current and future health, s.7 protection of security of the person is engaged. Access to a waiting list isnot access to health care. As we noted above, there is unchallenged evidencethat in some serious cases, patients die as a result of waiting lists for publichealth care. Where lack of timely health care can result in death, s. 7protection of life itself is engaged. The evidence here demonstrates that theprohibition on health insurance results in physical and psychological sufferingthat meets this threshold requirement of seriousness.

124                          We conclude, based on the evidence, that prohibiting health insurancethat would permit ordinary Canadians to access health care, in circumstanceswhere the government is failing to deliver health care in a reasonable manner,thereby increasing the risk of complications and death, interferes with lifeand security of the person as protected by s. 7 of the Charter.

125                          The remaining question is whether this inference is in accordance withthe principles of fundamental justice. [I]f the state [interferes] withsecurity of the person, the Charter requires such interference toconform with the principles of fundamental justice: Morgentaler, at p.54, per Dickson C.J.

B. Deprivationin Accordance with the Principles of Fundamental Justice

126                          Having concluded that the ban on private medical insurance constitutes adeprivation of life and security of the person, we now consider whether thatdeprivation is in accordance with the principles of fundamental justice. Ourcolleagues Binnie and LeBel JJ. argue that the record here provides no groundfor finding that the deprivation violates the principles of fundamentaljustice. With respect, we cannot agree.

127                          In Rodriguez, at pp. 590-91 and 607, Sopinka J. for a majority ofthis Court defined the principles of fundamental justice as legal principlesthat are capable of being identified with some precision and are fundamental inthat they have general acceptance among reasonable people.

128                          The principle of fundamental justice implicated in this case is thatlaws that affect the life, liberty or security of the person shall not bearbitrary. We are of the opinion that the evidence before the trial judgesupports a finding that the impugned provisions are arbitrary and that thedeprivation of life and security of the person that flows from them cannottherefore be said to accord with the principles of fundamental justice.

(1) Laws Shall Not Be Arbitrary: A Principleof Fundamental Justice

129                          It is a well-recognized principle of fundamental justice that lawsshould not be arbitrary: see, e.g., Malmo-Levine, at para. 135; Rodriguez,at p. 594. The state is not entitled to arbitrarily limit its citizens rightsto life, liberty and security of the person.

130                          A law is arbitrary where it bears no relation to, or is inconsistentwith, the objective that lies behind [it]. To determine whether this is thecase, it is necessary to consider the state interest and societal concerns thatthe provision is meant to reflect: Rodriguez, at pp. 594-95.

131                          In order not to be arbitrary, the limit on life, liberty and securityrequires not only a theoretical connection between the limit and thelegislative goal, but a real connection on the facts. The onus of showing lackof connection in this sense rests with the claimant. The question in everycase is whether the measure is arbitrary in the sense of bearing no realrelation to the goal and hence being manifestly unfair. The more serious theimpingement on the persons liberty and security, the more clear must be theconnection. Where the individuals very life may be at stake, the reasonableperson would expect a clear connection, in theory and in fact, between themeasure that puts life at risk and the legislative goals.

132                          In Morgentaler, Beetz J., Estey J. concurring, found that thelimits on security of the person caused by rules that endangered health weremanifestly unfair and did not conform to the principles of fundamentaljustice, in reasons that invoke arbitrariness. Some of the limitations bore noconnection to Parliaments objectives, in his view, while others wereunnecessary to assure that those objectives were met (p. 110).

133                          While cloaked in the language of manifest unfairness, this reasoningevokes the principle of fundamental justice that laws must not be arbitrary,and was so read in Rodriguez, at p. 594. Beetz J.s concurring reasonsin Morgentaler thus serve as an example of how the rule againstarbitrariness may be implicated in the particular context of access to healthcare. The fact that Dickson C.J., Lamer J. concurring, found that the schemeoffended a different principle of fundamental justice, namely that defences tocriminal charges must not be illusory, does not detract from the propositionadopted by Beetz J. that rules that endanger health arbitrarily do not complywith the principles of fundamental justice.

(2) Whether the Prohibition on PrivateMedical Insurance is Arbitrary

134                          As discussed above, interference with life, liberty and security of theperson is impermissibly arbitrary if the interference lacks a real connection onthe facts to the purpose the interference is said to serve.

135                          The government argues that the interference with security of the personcaused by denying people the right to purchase private health insurance isnecessary to providing effective health care under the public health system.It argues that if people can purchase private health insurance, they will seektreatment from private doctors and hospitals, which are not banned under theAct. According to the governments argument, this will divert resources fromthe public health system into private health facilities, ultimately reducingthe quality of public care.

136                          In support of this contention, the government called experts in healthadministration and policy. Their conclusions were based on the common senseproposition that the improvement of health services depends on exclusivity(R.R., vol. 3, at p. 591). They did not profess expertise in waiting times fortreatment. Nor did they present economic studies or rely on the experience ofother countries. They simply assumed, as a matter of apparent logic, thatinsurance would make private health services more accessible and that this inturn would undermine the quality of services provided by the public health caresystem.

137                          The appellants, relying on other health experts, disagreed and offeredtheir own conflicting common sense argument for the proposition thatprohibiting private health insurance is neither necessary nor related tomaintaining high quality in the public health care system. Quality publiccare, they argue, depends not on a monopoly, but on money and management. Theytestified that permitting people to buy private insurance would makealternative medical care more accessible and reduce the burden on the publicsystem. The result, they assert, would be better care for all. The appellantsreinforce this argument by pointing out that disallowing private insuranceprecludes the vast majority of Canadians (middle-income and low-income earners)from accessing additional care, while permitting it for the wealthy who canafford to travel abroad or pay for private care in Canada.

138                          To this point, we are confronted with competing but unproven commonsense arguments, amounting to little more than assertions of belief. We arein the realm of theory. But as discussed above, a theoretically defensiblelimitation may be arbitrary if in fact the limit lacks a connection to thegoal.

139                          This brings us to the evidence called by the appellants at trial on theexperience of other developed countries with public health care systems whichpermit access to private health care. The experience of these countriessuggests that there is no real connection in fact between prohibition of healthinsurance and the goal of a quality public health system.

140                          The evidence adduced at trial establishes that many western democraciesthat do not impose a monopoly on the delivery of health care have successfullydelivered to their citizens medical services that are superior to and moreaffordable than the services that are presently available in Canada. Thisdemonstrates that a monopoly is not necessary or even related to the provisionof quality public health care.

141                          In its report The Health of Canadians The Federal Role, theStanding Senate Committee on Social Affairs, Science and Technology discussedin detail the situations in several countries, including Sweden, Germany andthe United Kingdom. The following discussion of the health care systems inthese three countries is drawn directly from the findings in volume 3 of thereport The Health of Canadians The Federal Role, vol. 3, HealthCare Systems in Other Countries, Interim report (2002) (Kirby Report).

142                          In Sweden, as in Canada, access to public health care is universal. Thepublic health care system is financed predominantly by the public sectorthrough a combination of general taxation and social insurance (i.e.,employer/employee contributions) and employs a user fee mechanism. Unlike inCanada, private health care insurance that covers the same benefits as publicinsurance is legal in Sweden. However, only a small minority of thepopulation purchase private insurance. The result is a system of public healthcare coverage that provides quality care on a broader basis than in Canada andencompasses physicians, hospital services, drugs and dental care: KirbyReport, vol. 3, at pp. 29-36. In Sweden, the availability of private healthcare insurance appears not to have harmed the public health care system.

143                          In Germany, public health care insurance is administered by 453 SicknessFunds private non‑profit organizations structured on a regional task oroccupational basis. Sickness Fund membership is compulsory for employees withgross incomes lower than approximately $63,000 Canadian, and voluntary forthose with gross incomes above that level. Although all Sickness Funds areregulated at the federal level through what is known as the Social Code Book,they are essentially run by representatives of employees and employers. As inSweden, public health care coverage is broader in Germany than in Canada,including physician services, hospitals, prescription drugs, diagnosticservices, dental care, rehabilitative care, medical devices, psychotherapists,nursing care at home, medical services by non‑physicians(physiotherapists, speech therapists, occupational therapists, etc.) and incomesupport during sick leave: Kirby Report, vol. 3, at p. 14.

144                          In Germany, as in Sweden, private health insurance is available toindividuals at a certain income level who may voluntarily opt out of theSickness Funds. Private coverage is currently offered by 52 private insurancecompanies that are obliged to offer an insurance policy with the same benefitsas the Sickness Funds at a premium that is no higher than the average maximumcontribution to the Sickness Funds. Private health care coverage is alsoavailable to self‑employed people who are excluded from the SicknessFunds and public servants who are de facto excluded from participatingin Sickness Funds as their health care bills are reimbursed at the rate of 50per cent by the federal government. Private insurance covers the remainder:Kirby Report, vol. 3, at p. 15.

145                          Despite the availability of alternatives, 88 per cent of the Germanpopulation are covered by the public Sickness Funds: this includes 14 per centto whom private insurance is available. Of the remaining 12 per cent, only 9per cent are covered by private insurance and less than 1 per cent have nohealth insurance at all. The remaining 2 per cent are covered by governmentinsurance for military and other personnel: Kirby Report, vol. 3, at p. 15.

146                          The United Kingdom offers a comprehensive public health care system the National Health Service (NHS) while also allowing for private insurance.Unlike Canada, the United Kingdom allows people to purchase private health careinsurance that covers the same benefits as the NHS if these services aresupplied by providers working outside of the NHS. Despite the existence ofprivate insurance, only 11.5 per cent of the population have purchased it:Kirby Report, vol. 3, at pp. 37-44. Again, it appears that the public systemhas not suffered as a result of the existence of private alternatives.

147                          After reviewing a number of public health care systems, the StandingSenate Committee on Social Affairs, Science and Technology concluded in theKirby Report that far from undermining public health care, privatecontributions and insurance improve the breadth and quality of health care forall citizens, and it ultimately concluded, at p. 66:

The evidence suggests that a contribution of directpayments by patients, allowing private insurance to cover some services, evenin publicly funded hospitals, and an expanded role for the private sector inthe delivery of health services are the factors which have enabled countries toachieve broader coverage of health services for all their citizens. Some countrieslike Australia and Singapore openly encourage private sector participation as ameans to ensure affordable and sustainable health services.

148                          Nor does it appear that private participation leads to the eventualdemise of public health care. It is compelling to note that not one of thecountries referred to relies exclusively on either private insurance or thepublic system to provide health care coverage to its citizens. Even in theUnited States, where the private sector is a dominant participant in the fieldof health care insurance, public funding accounts for 45% of total health carespending: Kirby Report, vol. 3, at p. 66.

149                          In summary, the evidence on the experience of other western democraciesrefutes the governments theoretical contention that a prohibition on privateinsurance is linked to maintaining quality public health care.

150                          Binnie and LeBel JJ. suggest that the experience of other countries isof little assistance. With respect, we cannot agree. This evidence was properlyplaced before the trial judge and, unless discredited, stands as the best guidewith respect to the question of whether a ban on private insurance is necessaryand relevant to the goal of providing quality public health care. The task ofthe 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. This is supported byour jurisprudence, according to which the experience of other westerndemocracies may be relevant in assessing alleged arbitrariness. In Rodriguez,the majority of this Court relied on evidence from other western democracies,concluding that the fact that assisted suicide was heavily regulated in othercountries suggested that Canadas prohibition was not arbitrary: p. 601.

151                          Binnie and LeBel JJ. also suggest that the governments continuedcommitment to a monopoly on the provision of health insurance cannot bearbitrary because it is rooted in reliance on a series of authoritativereports [that analysed] health care in this country and in other countries (para.258); they are referring here to the reports of Commissioner Romanow (Buildingon Values: The Future of Health Care in Canada: Final Report (2002)), andSenator Kirby. We observe in passing that the import of these reports, whichdiffer in many of their conclusions, is a matter of some debate, as attested byour earlier reference to the Kirby Report. But the conclusions of other bodieson other material cannot be determinative of this litigation. They cannotrelieve the courts of their obligation to review government action forconsistency with the Charter on the evidence before them.

152                          When we look to the evidence rather than to assumptions, the connectionbetween prohibiting private insurance and maintaining quality public healthcare vanishes. The evidence before us establishes that where the public systemfails to deliver adequate care, the denial of private insurance subjects peopleto long waiting lists and negatively affects their health and security of theperson. The government contends that this is necessary in order to preservethe public health system. The evidence, however, belies that contention.

153                          We conclude that on the evidence adduced in this case, the appellantshave established that in the face of delays in treatment that causepsychological and physical suffering, the prohibition on private insurancejeopardizes the right to life, liberty and security of the person of Canadiansin an arbitrary manner, and is therefore not in accordance with the principlesof fundamental justice.

II. Section1 of the Charter

154                          Having concluded that the prohibition on private health insuranceconstitutes a breach of s. 7, we must now consider whether that breach can bejustified under s. 1 of the Charter as a reasonable limit demonstrablyjustified in a free and democratic society. The evidence called in this casefalls short of demonstrating such justification.

155                          The government undeniably has an interest in protecting the publichealth regime. However, given the absence of evidence that the prohibition onthe purchase and sale of private health insurance protects the health caresystem, the rational connection between the prohibition and the objective isnot made out. Indeed, we question whether an arbitrary provision, which byreason of its arbitrariness cannot further its stated objective, will ever meetthe rational connection test under R. v. Oakes, [1986] 1 S.C.R. 103.

156                          In addition, the resulting denial of access to timely and effectivemedical care to those who need it is not proportionate to the beneficialeffects of the prohibition on private insurance to the health system as awhole. On the evidence here and for the reasons discussed above, theprohibition goes further than necessary to protect the public system: it isnot minimally impairing.

157                          Finally, the benefits of the prohibition do not outweigh the deleteriouseffects. Prohibiting citizens from obtaining private health care insurancemay, as discussed, leave people no choice but to accept excessive delays in thepublic health system. The physical and psychological suffering and risk ofdeath that may result outweigh whatever benefit (and none has been demonstratedto us here) there may be to the system as a whole.

158                          In sum, the prohibition on obtaining private health insurance, while itmight be constitutional in circumstances where health care services arereasonable as to both quality and timeliness, is not constitutional where thepublic system fails to deliver reasonable services. Life, liberty and securityof the person must prevail. To paraphrase Dickson C.J. in Morgentaler,at p. 73, if the government chooses to act, it must do so properly.

159                          We agree with Deschamps J.s conclusion that the prohibition againstcontracting for private health insurance violates s. 1 of the Quebec Charterof Human Rights and Freedoms and is not justifiable under s. 9.1. We alsoconclude that this prohibition violates s. 7 of the Canadian Charterof Rights and Freedoms and cannot be saved under s. 1.

160                          We would allow the appeal, with costs to the appellants throughout.

The reasons of Binnie, LeBel and Fish JJ. were delivered by

Binnie and LeBel JJ. (Dissenting)

I. Introduction

161                          The question in this appeal is whether the province of Quebec not onlyhas the constitutional authority to establish a comprehensive single-tierhealth plan, but to discourage a second (private) tier health sector byprohibiting the purchase and sale of private health insurance. The appellantsargue that timely access to needed medical service is not being provided in thepublicly funded system and that the province cannot therefore deny to thoseQuebeckers (who can qualify) the right to purchase private insurance to pay formedical 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 protracteddebate across Canada through several provincial and federal elections. We areunable to agree with our four colleagues who would allow the appeal that such adebate 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 healthcare of a reasonable standard within a reasonable time, the governmentcreates 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. BritishColumbia (Attorney General), [2004] 3 S.C.R. 657, 2004 SCC 78, that thegovernment was not required to fund the treatment of autistic children. It didnot on that occasion address in constitutional terms the scope and nature ofreasonable health services. Courts will now have to make thatdetermination. What, then, are constitutionally required reasonable healthservices? What is treatment within a reasonable time? What are the benchmarks?How short a waiting list is short enough? How many MRIs does the Constitutionrequire? The majority does not tell us. The majority lays down no manageableconstitutional standard. The public cannot know, nor can judges or governmentsknow, how much health care is reasonable enough to satisfy s. 7 of the CanadianCharter of Rights and Freedoms (Canadian Charter) and s. 1 ofthe Charter of Human Rights and Freedoms, R.S.Q. c. C-12 (QuebecCharter). 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 itsprovincial counterparts is to provide health care based on need rather than onwealth or status. The evidence certainly established that the public healthcare system put in place to implement this policy has serious and persistentproblems. This does not mean that the courts are well placed to perform therequired surgery. The resolution of such a complex fact-laden policy debatedoes not fit easily within the institutional competence or procedures of courtsof law. The courts can use s. 7 of the Canadian Charter topre-empt the ongoing public debate only if the current health plan violates anestablished principle of fundamental justice. Our colleagues McLachlin C.J.and Major J. argue that Quebecs enforcement of a single-tier health plan meetsthis legal test because it is arbitrary. In our view, with respect, theprohibition against private health insurance is a rational consequence ofQuebecs 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 whoare prepared to spend money to get access to health care that is, inpractice, not accessible in the public sector because of waiting lists may bevalidly 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 Quebeckerswho do not have the money to afford private health insurance, or whocannot qualify for it, or who are not employed by establishments that provideit, are not put at risk by the absence of upper tier health care. It isQuebeckers who have the money to afford private medical insurance and can qualifyfor it who will be the beneficiaries of the appellants constitutionalchallenge.

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

Some have described it as a perversion of Canadianvalues that they cannot use their money to purchase faster treatment from aprivate provider for their loved ones. I believe it is a far greaterperversion 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: FinalReport (2002), at p. xx (Romanow Report))

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

167                          We believe our colleagues the Chief Justice and Major J. have extendedtoo far the strands of interpretation under the Canadian Charter laiddown 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 Canadaa principle of fundamental justice dispositive of the problems of waitinglists in the Quebec health system. In our view, the appellants case does notrest on constitutional law but on their disagreement with the Quebec governmenton aspects of its social policy. The proper forum to determine the socialpolicy 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 toevaluate the issue in the light, not just of common sense or theory, but of theevidence. [para. 150]

This, ofcourse, is precisely what the learned trial judge did after weeks of listeningto expert testimony and argument. In general, we agree with her conclusions.There is nothing in the evidence to justify our colleagues disagreement withher conclusion that the general availability of health insurance will lead to asignificant expansion of the private health sector to the detriment of thepublic health sector. While no one doubts that the Quebec health plan is undersustained and heavy criticism, and that at least some of the criticisms weresupported by the trial judge on the basis of the evidence, the trial judge rejectedthe appellants contention (now accepted by our colleagues the ChiefJustice and Major J.) that the prohibition on private insurance is contrary tothe principles of fundamental justice. The trial judges conclusion wasendorsed 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 onthis point. Whatever else it might be, the prohibition is not arbitrary.

169                          We can all support the vague objective of public health care of areasonable standard within a reasonable time. Most people have opinions, manyof them conflicting, about how to achieve it. A legislative policy is notarbitrary just because we may disagree with it. As our colleagues the ChiefJustice and Major J. fully recognize, the legal test of arbitrariness isquite well established in the earlier case law. In our view that test is notmet in this case, for reasons we will develop in some detail. Suffice it tosay at this point that in our view, the appellants argument aboutarbitrariness is based largely on generalizations about the public systemdrawn from fragmentary experience, an overly optimistic view of the benefitsoffered by private health insurance, an oversimplified view of the adverseeffects on the public health system of permitting private sector healthservices to flourish and an overly interventionist view of the role the courtsshould play in trying to supply a fix to the failings, real or perceived, ofmajor social programs.

A.       TheArgument 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 healthcare systems: a publicly funded system and a privately funded system. Thisdefinition implies that there is a differential access to health servicesbased on ones ability to pay, rather than according to need. In otherwords, those who can afford it may either obtain access to better quality careor to quicker care in the privately funded system, while the rest of thepopulation continues to access health care only through the publicly fundedsystem. [Emphasis added.]

(The Health of Canadians The Federal Role, vol. 4, Issuesand Options, Interim report (2001), p. 67 (Kirby Report))

It is evident,of course, that neither Quebec nor any of the other provinces has a puresingle-tier system. In the area of uninsured medical services, forexample, the private sector is the dominant supplier. In other cases, theprivate sector may perform the service but is paid by the state. The issuehere, 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 theother side of a line is wrong. Still less can we say that the boundaries ofthe Quebec health plan are dictated by the Constitution. Drawing the linearound social programs properly falls within the legitimate exercise of thedemocratic mandates of people elected for such purposes, preferably after apublic debate.

B.       Backgroundto the Health Policy Debate

171                          Prior to 1961, only 53 per cent of Canadians were covered by some formof health insurance, leaving approximately 8 million Canadians withoutinsurance coverage (Voluntary Medical Insurance and Prepayment (1964) (BerryCommission)). At that time, health care costs were the number one causeof personal bankruptcy in Canada.

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

The maintenance of the peoples health more and more is accepted asa collective responsibility. This is not surprising since it must beadmitted that without vigorous State action, the right to health would remain apurely theoretical notion, without any real content. [Emphasis added.]

(Rapport de la Commission denqute sur la sant et le bien-tresocial: La sant, 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 ofcollective responsibility for the provision of health care has remained largelyintact despite a shift towards more individualistic values (vol. 4, p. 137;see also Emerging Solutions: Report and Recommendations (2000), p. 243(Clair Report); La complmentarit du secteur priv dans la poursuite des objectifsfondamentaux du systme public de sant au Qubec: Rapport du groupe de travail(1999), p. 34 (Arpin Report)). Both the Kirby Report and the RomanowReport contained extensive investigations into the operations and problems ofthe current public health systems across Canada. They acknowledged that thefinancing of health care is putting a growing stress on public finances andnational resources. For fiscal year 2004-2005, federal/provincial/territorialspending on health care is estimated to be about $88 billion (FederalSupport for Health Care: The Facts, Finance Canada (September 2004)).Whether this growing level of expenditure is sustainable, justified or wise isa matter on which we all have opinions. In the absence of a violation of arecognized principle of fundamental justice, the opinions that prevail shouldbe those of the legislatures.

174                          Not all Canadian provinces prohibit private health insurance, but all ofthem (with the arguable exception of Newfoundland) take steps to protect thepublic health system by discouraging the private sector, whether by prohibitingprivate insurance (Quebec, Ontario, Manitoba, British Columbia, Alberta and PrinceEdward Island) or by prohibiting doctors who opt out of the public sector, frombilling their private patients more than the public sector tariff, therebydulling the incentive to opt out (Ontario, Manitoba and Nova Scotia), oreliminating any form of cross-subsidy from the public to the private sector(Quebec, British Columbia, Alberta, Prince Edward Island, Saskatchewan and NewBrunswick). The mixture of deterrents differs from province to province, butthe underlying policies flow from the Canada Health Act and are thesame: i.e. as a matter of principle, health care should be based onneed, not wealth, and as a matter of practicality the provinces judgethat growth of the private sector will undermine the strength of the publicsector 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 ordinaryCanadians to access private health care. Indeed, this is the view taken by ourcolleagues the Chief Justice and Major J. who quote the appellants argumentthat 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 mandateto save middle‑income and low-income Quebeckers from themselves, becauseboth the Romanow Report and the Kirby Report found that the vast majority ofordinary Canadians want a publicly financed single-tier (more or less) healthplan to which access is governed by need rather than wealth and where theavailability of coverage is not contingent on personal insurability. Ourcolleagues rely in part on the experience in the United States (para. 148) andthe fact that public funding in that country accounts for only 45 per cent oftotal health care spending. But if we look at the practical reality of theU.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 in2003, including about 8.4 million children. As to making health care availableto medium and low-income families, the effect of two-tier health coverage inthe U.S. is much worse for minority groups than for the majority. Hispanicshad an uninsured rate of 32.7 per cent, and African Americans had an uninsuredrate of 19.4 per cent. For 45 million Americans, as for those ordinaryQuebeckers who cannot afford private medical insurance or cannot obtain itbecause they are deemed to be bad risks, it is a matter of public health careor 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. Noone suggests that there is anything in our Constitution to prevent it. But todo so would be contrary to the policy of the Quebec National Assembly, and itspolicy in that respect is shared by the other provinces and the federalParliament. As stated, Quebec further takes the view that significant growthin the private health care system (which the appellants advocate) wouldinevitably damage the public system. Our colleagues the Chief Justice andMajor J. disagree with this assessment, but governments are entitled to act ona 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, andhave access to a broader range of information, more points of view, and a moreflexible investigative process than courts do.

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

II. Analysis

177                          The appellants principal argument is that the existence of waitinglists in Quebec and the concurrent prohibition on private health insuranceviolate s. 7 of the Canadian Charter, which guarantees everyone theright to life, liberty and security of the person, and the right not to bedeprived thereof except in accordance with the principles of fundamentaljustice.

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

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

180                          Our colleagues the Chief Justice and Major J. agree with the appellantsthat there is a violation of s. 7 of the Canadian Charter. Asmentioned earlier, their opinion rests in substantial part on observations madeby various members of this Court in Morgentaler. At issue in that casewas the criminal liability of doctors and their patients under s. 251 ofthe Criminal Code, R.S.C. 1970, c. C-34, for performing abortions. Thenub of the legal challenge was that in creating the abortion offence Parliamenthad qualified the charge with a therapeutic abortion defence, but the defencewas not working. The factual and legal issues raised in that criminal lawproblem are, we think, far removed from the debate over a two-tiered healthsystem. Morgentaler applied a manifest unfairness test which hasnever been adopted by the Court outside the criminal law, and certainly not inthe context of the design of social programs. The Morgentaler judgmentfastened on internal inconsistencies in s. 251 of the CriminalCode, which find no counterpart here. In our view, with respect, Morgentalerprovides no support for the appellants in this case, as we discuss commencingat para. 259.

181                          As stated, we accept the finding of the courts below that a two-tierhealth 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 thisfinding is disputed by our colleagues the Chief Justice and Major J. (a pointto which we will return), it cannot be contested that as a matter of principle,access to private health care based on wealth rather than needcontradicts one of the key social policy objectives expressed in the CanadaHealth Act. The state has established its interest in promoting the equaltreatment of its citizens in terms of health care. The issue of arbitrarinessrelates only to the validity of the means adopted to achieve that policyobjective. Counsel for the appellant Zeliotis was not oblivious to thepotential danger posed by the re-allocation of health resources to the privatesector. In opening his oral submissions to the Court, he acknowledged the needas a matter of social policy to protect the public health system:

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

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

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

While Quebec does not outlaw private health care, which is thereforeaccessible 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 threatto the Quebec health plan. Failure to stop private health insurance will, asthe trial judge found, do so. Private insurance is a condition precedent to,and aims at promoting, a flourishing parallel private health care sector. ForDr. Chaoulli in particular, that is the whole point of this proceeding.

A. Preliminary Objections

182                          The Attorneys General made two preliminary objections: first, that theclaims raised on this appeal are not properly justiciable; and second, thatneither 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 claimsadvanced by the appellants are inherently political and, therefore, notproperly justiciable by the courts. We do not agree. Section 52 of the ConstitutionAct, 1982 affirms the constitutional power and obligation of courtsto declare laws of no force or effect to the extent of their inconsistency withthe Constitution. Where a violation stems from a Charter breach, thecourt may also order whatever remedy is appropriate and just in thecircumstances under s. 24. There is nothing in our constitutional arrangementto exclude political questions from judicial review where the Constitutionitself is alleged to be violated.

184                          Nevertheless, a correct balance must be struck between the judiciaryand the other branches of government. Each branch must respect the limits ofits 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 invitedto perform that role by the Constitution itself. But respect by the courts forthe legislature and executive role is as important as ensuring that the otherbranches respect each others role and the role of the courts (para. 136).

185                          In the present case, the appellants are challenging the legality ofQuebecs prohibition against private health insurance. While the issue raisespolitical questions of a high order, the alleged Charter violationframed by the appellants is in its nature justiciable, and the Court shoulddeal 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, requiresthat the party bringing an action have a sufficient interest in thelitigation. In our view, for the reasons given by the trial judge, aspreviously mentioned, Mr. Zeliotis has not demonstrated that systemic waitinglists were the cause of his delayed treatment.

187                          Dr. Chaoullis situation is different. He offers himself as an advocatefor private health insurance. He is a medically trained individual who has ahistory of conflict with the Quebec health authorities and of disobedience totheir rules governing medical practice. The trial judge found Dr. Chaoullismotives to be questionable:

[translation]At first, Dr. Chaoulli was supposed to complete his initial contract in aremote region. He did not do so but returned to Montral and, contrary to whathe was entitled to do, began practising on the South Shore. He thenobstinately insisted on practising medicine as he pleased, disregarding theregional boards decisions. Dr. Chaoulli never testified that he had receivedinadequate care or that the system had not responded to his personal healthneeds. He still faces substantial penalties at the Rgie de l'assurance‑maladiedu Qubec. He was released from his obligations, returned to the publicsystem, and is still not satisfied. All this leads the Court to question Dr. Chaoullisreal motives in this dispute. It is impossible not to be struck by thecontradictions in his testimony and by the impression that Dr. Chaoulli hasembarked on a crusade that now raises questions transcending his own personalcase. [p. 795]

188                          Nevertheless, we accept that the appellants have a sufficient interestin 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 mustsatisfy three requirements:

[T]o establish status as a plaintiff in a suit seeking a declarationthat 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 agenuine interest as a citizen in the validity of the legislation and that thereis no other reasonable and effective manner in which the issue may be brought beforethe Court.

See also CanadianCouncil 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, thereis a serious challenge to the invalidity of the impugned provisions. Access tomedical care is a concern of all Quebec residents. Second, Dr. Chaoulli andMr. Zeliotis are both Quebec residents and are therefore directly affected bythe provisions barring access to private health insurance. Third, theappellants advance the broad claim that the Quebec health plan isunconstitutional for systemic reasons. They do not limit themselves tothe circumstances of any particular patient. Their argument is not limited toa case-by-case consideration. They make the generic argument that Quebecschronic waiting lists destroy Quebecs legislative authority to draw the lineagainst private health insurance. From a practical point of view, whileindividual patients could be expected to bring their own cases to court if theywished to do so, it would be unreasonable to expect a seriously ailing personto bring a systemic challenge to the whole health plan, as was done here. Thematerial, physical and emotional resources of individuals who are ill, and quitepossibly dying, are likely to be focussed on their own circumstances. In thissense, there is no other class of persons that is more directly affected andthat could be expected to undertake the lengthy and no doubt costly systemicchallenge to single-tier medicine. Consequently, we agree that the appellantsin this case were rightly granted public interest standing. However, thecorollary to this ruling is that failure by the appellants in their systemicchallenge would not foreclose constitutional relief to an individual based on,and limited to, his or her particular circumstances.

B. TheCanadian Charter of Rights and Freedoms

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

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

191                          Like our colleagues McLachlin C.J. and Major J., we accept the trialjudges conclusion that in some circumstances some Quebeckers mayhave their life or security of the person put at risk by the prohibitionagainst private health insurance. However, unlike our colleagues, we agreewith the trial judge and the Quebec Court of Appeal that this situation,however deplorable, is not capable of resolution as a matter of constitutionallaw. At the same time, we reject some of the constraints that the AttorneyGeneral of Quebec would place on the Courts analysis.

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

192                          The Attorney General of Quebec argues that s. 7 does not protecteconomic rights. This is true, but is somewhat beside the point. Theappellants seek access to a two-tier health system. The fact it will costmoney 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 CanadianCharter litigation. Because s. 7 protects the most basic interests ofhuman beings life, liberty and security claimants call on the courts toadjudicate 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 societysconception of principles of fundamental justice as to be constitutionallyentrenched.

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 CanadianCharter. The provisions sought to be invalidated provide:

15. No person shall make or renew a contract of insurance or make apayment under a contract of insurance under which an insured service isfurnished or under which all or part of the cost of such a service is paid to aresident or a deemed resident of Qubec or to another person on his behalf. ...

11. (1) No one shall make or renew, or make a payment under a contractunder which

(a) a resident is to be provided with or to be reimbursedfor the cost of any hospital service that is one of the insured services;

(b) payment is conditional upon the hospitalization of aresident; or

(c) payment is dependent upon the length of time theresident is a patient in a facility maintained by an institution contemplatedin section 2.

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

196                          It will likely be a rare case where s. 7 will apply in circumstancesentirely unrelated to adjudicative or administrative proceedings. That said,the Court has consistently left open the possibility that s. 7 may applyoutside 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 and414.

197                          The Court has been moving away from a narrow approach to s. 7, whichrestricted the scope of the section to legal rights to be interpreted in lightof the rights enumerated in ss. 8-14: see, e.g., Reference re ss. 193 and195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (ProstitutionReference), at pp. 1171-74. In Blencoe v. British Columbia (HumanRights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44, the majority heldthat s. 7 can apply outside of the criminal context. Further, in WinnipegChild and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48, theCourt held that the wardship provisions of the Child Welfare Act, S.A.1984, c. C‑8.1, denying parents the ability to choose medicaltreatment for their infants, implicated the s. 7 liberty interests of parents.

198                          Placing s. 7 under the heading Legal Rights in the Canadian Charterdoes not narrow or control its scope. Such a result would be undulyformalistic and inconsistent with the large, liberal and purposiveinterpretation of s. 7 that has been the hallmark of this Courts approachsince Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486. This is evidencedby the refusal of the majority in that case to restrict principles offundamental justice solely to procedural guarantees. Lamer J. observed thatthe principles of fundamental justice are to be found in the basic tenets andprinciples, not only of our judicial process, but also of the othercomponents of our legal system (p. 512 (emphasis added)).

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

(2) Which Section 7 Interests AreEngaged?

200                          Section 7 interests are enumerated as life, liberty and security of theperson. As stated, we accept the trial judges finding that the current stateof the Quebec health system, linked to the prohibition against health insurancefor insured services, is capable, at least in the cases of someindividuals on some occasions, of putting at risk their life or securityof the person.

201                          We do not agree with the appellants, however, that the Quebec HealthPlan puts the liberty of Quebeckers at risk. The argument that libertyincludes freedom of contract (in this case to contract for private medicalinsurance) is novel in Canada, where economic rights are not included in the Charterand discredited in the United States. In that country, the liberty ofindividuals (mainly employers) to contract out of social and economic programswas endorsed by the Supreme Court in the early decades of the 20th century onthe theory that laws that prohibited employers from entering into oppressivecontracts with employees violated their liberty of contract; see, e.g., Lochnerv. New York, 198 U.S. 45 (1905), at p. 62:

... a prohibition to enter into any contract of labor in a bakery formore than a certain number of hours a week, is, in our judgment, so wholly besidethe matter of a proper, reasonable and fair provision, as to run counter tothat liberty of person and of free contract provided for in the FederalConstitution.

Of this lineof 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 Courtof the United States:

... relied on the Fourteenth Amendments Due Process Clause to strikedown economic legislation that the Court saw as improperly infringing on contractualliberty, but in which the Court was widely (even if not always correctly)perceived to be substituting its own judgment, in the absence of any actualconstitutional 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 Charterguarantees Dr. Chaoulli the liberty to deliver health care in a privatecontext. The trial judge correctly concluded that [translation] s. 7 of the Canadian Charter doesnot protect a physicians right to practise his or her profession withoutrestrictions in the private sector. That is a purely economic right (p.823). The fact that state action constrains an individuals freedom byeliminating career choices that would otherwise be available does not in itselfattract the protection of the liberty interest under s. 7. The libertyinterest does not, for example, include the right to transact business wheneverone wishes: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, atp. 786. Nor does it protect the right to exercise ones chosenprofession: Prostitution Reference, at p. 1179, per LamerJ. We would therefore reject Dr. Chaoullis claim on behalf of care providersthat their liberty interest under either the Canadian Charter or the QuebecCharter has been infringed by Quebecs single-tier public health system.

(3) Is There a Constitutional Right to SpendMoney?

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

In essence, the question is whether Quebeckers whoare 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 validlyprevented from doing so by the state.

While we donot accept that there is a constitutional right to spend money, which wouldbe a property right, we agree that if the public system fails to deliverlife-saving care and an individual is simultaneously prevented from seekinginsurance to cover the cost of that care in a private facility, then theindividual is potentially caught in a situation that may signal a deprivationof his or her security of the person.

204                          This is not to say that every encounter with a waiting list will triggerthe application of s. 7. The interference with ones mental well-being mustnot be trivial. It must rise above the ordinary anxiety caused by thevicissitudes of life, but it need not be so grave as to lead to serious mentalanguish or nervous breakdown. Some individuals that meet this test areto be found entangled in the Quebec health system. The fact such individualsdo not include the appellants personally is not fatal to their challengebecause they come here as plaintiffs purporting to represent the publicinterest.

205                          The Court has found a deprivation of ones psychological integritysufficient to ground a s. 7 claim in a range of cases. In Morgentaler,the majority held that the impugned abortion provisions seriously compromised awomans physical and psychological integrity in a manner that constituted aninfringement of her security of the person: at pp. 56-57, per DicksonC.J. (Lamer J. concurring), at pp.104-105, per Beetz J. (Estey J.concurring); at pp. 173-74, per Wilson J. The Court subsequently heldthat the criminal prohibition against assisting someone to commit suicideconstituted an impingement of the claimants physical and psychologicalintegrity that amounted to a deprivation of the right to security of the personunder s. 7; the claimant in that case was suffering from Lou Gehrigs disease,a rapidly deteriorating condition, which results in paralysis and eventuallyrequires invasive life-prolonging measures to be taken: Rodriguez v. BritishColumbia (Attorney General), [1993] 3 S.C.R. 519. More recently, in NewBrunswick (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 childfrom parental custody by the state pursuant to its wardship jurisdictionconstituted a serious interference with the psychological integrity of theparent 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 physicalsecurity of the patient at risk. The condition of a cardiac or cancerpatient, for example, may seriously deteriorate if treatment is not availablequickly.

207                          As stated, the principal legal hurdle to the appellants Charterchallenge is not the preliminary step of identifying a s. 7 interestpotentially affected in the case of some Quebeckers in somecircumstances. The hurdle lies in their failure to find a fundamentalprinciple of justice that is violated by the Quebec health plan so as tojustify the Court in striking down the prohibition against private insurancefor what the government has identified as insured services.

C. Principlesof Fundamental Justice

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

The requirement of general acceptance amongreasonable people enhances the legitimacy of judicial review of state action,and ensures that the values against which state action is measured are not justfundamental in the eye of the beholder only: Rodriguez, at pp.607 and 590 (emphasis in original). In short, for a rule or principle toconstitute a principle of fundamental justice for the purposes of s. 7, it mustbe a legal principle about which there is significant societalconsensus that it is fundamental to the way in which the legal systemought fairly to operate, and it must be identified with sufficient precision toyield a manageable standard against which to measure deprivations oflife, liberty or security of the person. [First emphasis in original;subsequent emphasis added.]

See also CanadianFoundation 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 arethreefold. First, it must be a legal principle. Second, the reasonableperson must regard it as vital to our societal notion of justice, which impliesa significant societal consensus. Third, it must be capable of being identifiedwith precision and applied in a manner that yields predictable results.These requirements present insurmountable hurdles to the appellants. The aimof health care to a reasonable standard within reasonable time is not a legalprinciple. There is no societal consensus about what it means or how toachieve it. It cannot be identified with precision. As the testimony inthis case showed, a level of care that is considered perfectly reasonable bysome doctors is denounced by others. Finally, we think it will be verydifficult for those designing and implementing a health plan to predict whenits provisions cross the line from what is reasonable into the forbiddenterritory of what is unreasonable, and how the one is to be distinguishedfrom the other.

(1) The Experts Recognized that the PotentialMarket for Health Services Is Almost Limitless, and the Supply Must ThereforeBe Rationed Whether by Governments in the Public Sector or Insurers or OtherHealth Care Providers in the Private Sector

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

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

[translation] The truthis that, in light of his personal medical impediments, the fact that he wasalready suffering from depression, his indecision and his complaints, which inmany respects were unwarranted, it is hard to conclude that the delays thatoccurred resulted from lack of access to public health services, and in facteven Mr. Zeliotiss complaints about delays are questionable. It was he whoinitially wanted a second opinion, it was his surgeon who hesitated because ofhis problems, and so on. Thus, his complaint to the director of professionalservices at the Royal Victoria Hospital . . . was not corroborated. An out‑of‑courtexamination in connection with another case is puzzling, as Mr. Zeliotis saidhe 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 believedthat Mr. Zeliotis was not an ideal candidate for the surgery because he hadsuffered a heart attack and undergone bypass surgery earlier that year.Accordingly, neither the mere existence of waiting lists, nor the fact thatcertain individuals like Mr. Zeliotis feel unfairly dealt with, necessarilypoints to a constitutional problem with the public health system as a whole.

(a) There Is No ConsensusAbout What Constitutes Reasonable Waiting Times

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

So the issue of defining what is a reasonablewaiting list is a very difficult one because if you have a hundred (100)surgeons, you have a hundred (100) opinions, its very difficult to come to aconsensus on these questions. [A.R. p. 1186]

There arecurrently 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-listmismanagement: 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, notto dispute the existence of waiting list problems or to understate the level ofpublic anxiety they create, but simply to illustrate the complexity of thesituation and the dangers of oversimplification.

(b) The Experts Accepted by The Trial JudgeRelied on More Than Just Common Sense

214                          Our colleagues the Chief Justice and Major J. dismiss the expertsaccepted by the trial judge as relying on little more than common sense (para.137). Although we agree that the experts offered common sense, they offereda good deal more. The experts heard by the trial court included Mr. Claude Castonguay,who was Quebecs Minister of Health in 1970 (the [translation] father of Quebec health insurance) and who chaired the Commission of Inquiry on Health and SocialWelfare, as well as a number of other public health experts, including Dr. FernandTurcotte, a professor of medicine at Laval University, who holds degrees fromthe University of Montreal and Harvard and has been certified by the RoyalCollege of Physicians and Surgeons of Canada as a specialist in communitymedicine; Dr. Howard Bergman, Chief of the Division of Geriatric Medicine atMontreals Jewish General Hospital, Director of the Division of GeriatricMedicine and a professor in the departments of Internal Medicine and FamilyMedicine at McGill University, and a fellow of the American Geriatrics Societyand an associate professor at the University of Montreal in the department ofhealth administration; Dr. Charles J. Wright, a physician specialized insurgery, Director of the Centre for Clinical Epidemiology & Evaluation atthe Vancouver Hospital & Health Sciences Centre, faculty member of theUniversity of British Columbia and of the British Columbia Office of HealthTechnology Assessment; Professor Jean-Louis Denis, a community health doctor ofthe University of Montreals [translation]health services organization; Professor Theodore R. Marmor, a professor ofpublic policy and management and of political science at Yale University, whoholds a PhD from Harvard University in politics and history and is a graduateresearch fellow at Oxford; and Dr. J. Edwin Coffey, a graduate of McGillUniversity in medicine who specializes in obstetrics and gynecology, a fellowof the Royal College of Physicians and Surgeons of Canada and of the AmericanCollege of Obstetricians and Gynecologists, and a former associate professor inthe McGill University Faculty of Medicine. The respondents experts testifiedand were cross-examined. The trial judge found them to be credible andreliable. 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 obtainprivate insurance, none of them gave their full and absolute support to theapplicants' proposals, as they explained that it was neither clear norobvious that a reorganization of the health system with a parallel privatesystem would solve all the existing problems of delays and access. On thecontrary, the specialists who testified remained quite circumspect about thiscomplex and difficult question. [Emphasis added; p. 796.]

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

216                          In addition, the court was presented with a number of government reportsand independent studies. They bear out the wisdom of the comment in Un avenirpour le systme public de sant (1998), at p. 20 (Denis Report): [translation] It is important that wequickly distance ourselves from a position advocating simple solutions tocomplex problems.

(c) The Lack of AccurateData

217                          How serious is the waiting-list problem? No doubt it is serious; but howserious? The first major evidentiary difficulty for the appellants is the lackof accurate data. The major studies concluded that the real picture concerningwaiting lists in Canada is subject to contradictory evidence and conflictingclaims (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 expertswho testified at trial in the present case (see Waiting Lists in Canada andthe Potential Effects of Private Access to Health Care Services (1998), p.7 (Wright Report); Le temps dattente comme instrument de gestion du rationnementdans les services de sant du Canada (1998) (Turcotte Report)), and fromthe available literature (see Waiting Lists and Waiting Times for HealthCare in Canada: More Management!! More Money? (1998) (McDonaldReport)). At trial, Dr. Wright also discounted the value of random opinionsurveys:

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

(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 classiccase 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 consequenceis that information and management defects are almost always prematurelydiagnosed as financial shortages. [p. 1299]

219                          Professor Marmor also subscribed to the view that waiting lists cannotserve as a simple indicator of a failing health care system (ExpertWitness Report (1998), at p. 11 (Marmor Report)) in part because studiesof waiting lists have demonstrated that up to one third of patients on lists nolonger need to be on them because the procedure has already been performedelsewhere; the patient has already been admitted on an emergency basis; thepatient no longer wishes the procedure to be performed; the procedure is nolonger medically necessary; the patient has already been called in to have theprocedure but refused for personal reasons or due to inconvenient timing; orthe patient is on multiple waiting lists at different hospitals therebyinflating 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 awaiting list on a particular patient. The most comprehensive overview of theliterature on waiting lists available to the trial judge was the McDonaldReport, p. 14. It presents a review of studies of patients experienceswhile awaiting surgery. That review prompted the authors to conclude, amongother things, that patients awaiting care for a range of procedures includingknee and hip replacement, cardiac care and cataract care may experienceemotional strains such as increased levels of anxiety due to a range offactors including lack of information and uncertainty regarding thetimeline for care (p. 267 (emphasis added)) or the normal anxiety orapprehension felt by anyone faced with a serious surgical procedure. In otherwords, waiting lists may be serious in some cases, but in how many cases andhow serious?

(e) The Need to Ration Services

221                          Waiting times are not only found in public systems. They are found inall health care systems, be they single-tier private, single-tier public, orthe 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 carecoupled with limited resources, be they public or private, is to rationservices. As noted by the Arpin Report, Constats et recommandations sur lespistes explorer: Synthse, at p. 37:

[translation] In anyhealth care system, be it public or private, there is an ongoing effort tostrike the proper balance. . . . For a public system like our own, waitinglists, insofar as priority is given to urgent cases, do not in themselvesrepresent a flaw in the system. They are the inevitable result of a publicsystem that can consequently offer universal access to health services withinthe limits of sustainable public spending. Thus, to a certain extent, theyplay a necessary role.

222                          The expert witnesses at trial agreed that waiting lists are inevitable (Expertisedpose par Howard Bergman (1998), p. 5 (Bergman Report); Marmor Report,p. 11). The only alternative is to have a substantially overbuilt health caresystem with idle capacity (Wright Report, p. 6). This is not a financiallyfeasible 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 andcollective responsibility, rationing occurs on the basis of clinical needrather than wealth and social status (see e.g., Turcotte Report, at pp. 4 and10; Denis Report, p. 11; Clair Report, p. 135; Rapport de la Commission denqutesur les services de sant et les services sociaux (1988), at p. 651 (RochonReport)). As a result, there exists in Canada a phenomenon of static queueswhereby a group of persons may remain on a waiting list for a considerable timeif their situation is not pressing. Patients who are in greater need of healthcare 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, theevidence suggests that patients who need immediate medical care receive it.There are of course exceptions, and these exceptions are properly the focus ofcontroversy, but in our view they can and should be addressed on a case-by-casebasis.

(g) Availability of Public Funding forOut-of-Province Medical Care

224                          Section 10 of the Health Insurance Act provides that in certaincircumstances Quebeckers will be reimbursed for the cost of insured servicesrendered outside Quebec but in Canada (Regulation respecting the applicationof the Health Insurance Act, R.R.Q. 1981, s. 23.1), or outside Canadaaltogether (s. 23.2). There is no doubt that the power of reimbursementis exercised sparingly, and on occasion unlawfully; see for example Stein v.Tribunal administratif du Qubec, [1999] R.J.Q. 2416 (S.C.). One of thedifficulties in assessing the effectiveness of this individual remedy is thatneither Dr. Chaoulli nor Mr. Zeliotis is before the Court with an actualmedical problem. (The trial judge, as stated, dismissed Mr. Zeliotis personalhealth complaints as unsubstantiated.) The reimbursement scheme forout-of-province services exists as a form of safety valve for situations inwhich Quebec facilities are unable to respond. As Stein shows, there arelapses of judgment, as there will be in the administration of any governmentplan. The existence of the individual remedy, however, introduces an importantelement of flexibility, if administered properly.

(h) The Evidence Relied on by the ChiefJustice 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. 114but the trial judge pointed out that Dr. Lenczner had not been qualified as anexpert witness and counsel for Mr. Zeliotis agreed (A.R., vol. 11, at pp.330-31). Dr. Lenczners comments were largely anecdotal and of littlegeneral application. He described a patient who was a golfer, and thus losthis access to his golf membership for that season. He also stated that a tearcan increase over time and get to the point of being irreparable, but nostudies or general evidence was adduced to show the incidence of such cases inQuebec. Our colleagues comment at para. 112 that a person with coronarydisease is [translation] sittingon a bomb and can die at any moment. This is true, of course. He or she candie at home, or in an ambulance on the way to a hospital. Again, ourcolleagues write, patients die while on waiting lists (para. 112). This,too, is true. But our colleagues are not advocating an overbuilt system withenough idle capacity to eliminate waiting lists, and such generalized commentsprovided no guidance for what in practical terms would constitute anappropriate level of resources to meet their suggested standard of publichealth care of a reasonable standard within reasonable time (para. 105).

226                          We have similar concerns about the use made by the appellants of variousreports in connection with other OECD countries. These country reports wereincluded in an Interim Kirby Report but not in its final version. TheFinal Kirby Reports recommendation was to stick with a single-tier system. Wethink the Court is sufficiently burdened with conflicting evidence about ourown health system without attempting a detailed investigation of the merits oftrade-offs made in other countries, for their own purposes. A glance at theevidence shows why.

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

The growing rate of the number of insured, or people on privatehealth care insurance, is some 80% or something like that now. It is growingvery fast due to the normal waiting lists and the problems within the systemtoday. [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 insuranceis they want the peace of mind of being able to have elective operations forthemselves or their families more quickly or at more convenient times than ifthey must depend on the National Health Service. That is seen, of course, as acause of unfairness, which is one of the reasons that the government iscommitted to bringing down waiting times for National Health Service patientsas rapidly as it can. [Emphasis in original.]

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

In fact, inthe actual conclusion of vol. 3 of the Interim Kirby Report on Health CareSystems in Other Countries, the reports authors state (at p. 73):

Canadians may find some consolation in the factthat Canada is not alone in confronting complex health care issues. Everywherein the industrialized world health care policy is thoroughly intertwined withthe political, social, and even cultural life of each country. As such, everyhealth care system is unique. Therefore, no single international modelconstitutes a blueprint for solving the challenges confronted by the Canadianhealth care system. However, experts told the Committee that carefulconsideration must be given to the repercussions in Canada of introducing, on apiecemeal basis, changes undertaken in other countries.

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

230                          Taking the good with the bad, the Final Kirby Report recommendedcontinuation of a single-tier health system (as did the Romanow Report). Theauthors of the Kirby Report were fully aware of the extracts from their interimreport relied upon by our colleagues McLachlin C.J. and Major J., yet theyspecifically rejected two-tier health care:

Repeated public opinion polling data have shown that having to waitmonths for diagnostic or hospital treatment is the greatest concern andcomplaint that Canadians have about the health care system. The solution tothis problem is not, as some have suggested, to allow wealthy Canadians to payfor services in a private health care institution. Such a solution wouldviolate the principle of equity of access. The solution is the careguarantee 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 tourdhorizon data published in the Interim Kirby Report do not displace theconclusion of the trial judge, let alone the conclusion of the Kirby Reportitself. Apart from everything else, it leaves out of consideration thecommitment 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 lawwhich arbitrarily violates life or security of the person is unconstitutional.We agree that this is a principle of fundamental justice. We do not agree thatit applies to the facts of this case.

232                          A deprivation of a right will be arbitrary and will thus infringe s. 7if it bears no relation to, or is inconsistent with, the state interest thatlies 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 doeslittle or nothing to enhance the states interest (whatever it may be), itseems to me that a breach of fundamental justice will be made out, as theindividuals rights will have been deprived for no valid purpose. ... Itfollows that before one can determine that a statutory provision is contrary tofundamental justice, the relationship between the provision and the stateinterest must be considered. One cannot conclude that a particular limitis 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 liesbehind the legislation without considering the state interest and the societalconcerns which it reflects. [Emphasis added.]

233                          We agree with our colleagues the Chief Justice and Major J. that a lawis arbitrary if it bears no relation to, or is inconsistent with, theobjective that lies behind [the legislation] (para. 130). We do not agreewith the Chief Justice and Major J. that the prohibition against privatehealth insurance bears no relation to, or is inconsistent with thepreservation of access to a health system based on need rather than wealth inaccordance with the Canada Health Act. We also do not agree with ourcolleagues expansion of the Morgentaler principle to invalidate aprohibition simply because a court believes it to be unnecessary for thegovernments purpose. There must be more than that to sustain a validobjection.

234                          The accepted definition in Rodriguez states that a law isarbitrary only where it bears no relation to, or is inconsistent with, theobjective that lies behind the legislation. To substitute the termunnecessary for inconsistent is to substantively alter the meaning of theterm arbitrary. Inconsistent means that the law logically contradicts itsobjectives, whereas unnecessary simply means that the objective could be metby other means. It is quite apparent that the latter is a much broader termthat involves a policy choice. If a court were to declare unconstitutionalevery law impacting security of the person that the court considersunnecessary, there would be much greater scope for intervention under s. 7than has previously been considered by this Court to be acceptable. (In Rodriguezitself, for example, could the criminalization of assisted suicide simply havebeen dismissed as unnecessary? As with health care, many jurisdictions havetreated euthanasia differently than does our Criminal Code.) The courtsmight find themselves constantly second-guessing the validity of governmentspublic policy objectives based on subjective views of the necessity ofparticular means used to advance legitimate government action as opposed toother means which critics might prefer.

235                          Rejecting the findings in the courts below based on their own reading ofthe 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 supportsa finding that the impugned provisions are arbitrary and that the deprivationof life and security of the person that flows from them cannot therefore besaid to accord with the principles of fundamental justice.

We note thatour colleagues refer to the evidence before the trial judge rather thanthe view taken of that evidence by the trial judge. The trial judgereached a contrary conclusion on the facts, and deference is due to her view ofthat evidence; see Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC33. In any event, with respect, we accept the contrary conclusions of thetrial judge and the Quebec Court of Appeal. We approach the issue ofarbitrariness in three steps:

(i) what is the state interest to beprotected?

(ii) what is the relationship between thestate interest thus identified and the prohibition against private healthinsurance?

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

We willaddress each question in turn.

(a) What Is the State Interest Sought To BeProtected?

236                          Quebecs legislative objective is to provide high quality health care,at a reasonable cost, for as many people as possible in a manner that isconsistent with principles of efficiency, equity and fiscal responsibility. Quebec(along with the other provinces and territories) subscribes to the policyobjectives of the Canada Health Act, which include (i) the equalprovision of medical services to all residents, regardless of status, wealth orpersonal insurability, and (ii) fiscal responsibility. An overbuilthealth system is seen as no more in the larger public interest than a systemthat on occasion falls short. The legislative task is to strike a balanceamong competing interests.

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

(b) What Is the Relationship Between theState Interest thus Identified and the Prohibition Against Private HealthInsurance?

238                          The relationship lies both in principle and in practicality.

239                          In principle, Quebec wants a health system where access isgoverned by need rather than wealth or status. Quebec does not want people whoare uninsurable to be left behind. To accomplish this objective endorsed bythe Canada Health Act, Quebec seeks to discourage the growth ofprivate-sector delivery of insured services based on wealth andinsurability. We believe the prohibition is rationally connected to Quebecsobjective and is not inconsistent with it.

240                          In practical terms, Quebec bases the prohibition on the view thatprivate 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 apublic health care plan open to all residents of Quebec. These enactments areintended to promote the overall health of all Quebeckers without discriminationbased on economic circumstances. In short, they constitute a governmentaction whose purpose is to promote the well-being of all the people of theprovince.

Plainly, s. 15 HEIA and s. 11 HOIA erect economicbarriers to access to private health care. However, these measures are notreally intended to limit access to health care; rather, their purpose is toprevent the establishment of a parallel private system. These provisionsare based on the fear that the establishment of a private health care systemwould rob the public sector of a significant portion of the available healthcare resources. The Quebec government enacted s. 15 HEIA and s. 11 HOIA toguarantee that virtually all the existing health care resources in Quebec wouldbe available to all the people of Quebec. That is clear.

The purpose of the impugned provisions isto guarantee equal and adequate access to health care for all Quebeckers.The enactment of s. 15 HEIA and s. 11 HOIA was motivated by considerationsof equality and human dignity, and it is therefore clear that there is noconflict with the general values expressed in the Canadian Charter or in theQuebec Charter of human rights and freedoms. [Emphasis in original.]

We agree.

(c) Have the AppellantsEstablished 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 expansionof private health care would undoubtedly have a negative impact on the publichealth system (at p. 827):

[translation]The evidence has shown that the right of access to a parallel privatehealth care system claimed by the applicants would have repercussions on therights 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 tothreaten the integrity, proper functioning and viability of the public system.Section 15 HEIA and s. 11 HOIA prevent this from happening and secure theexistence in Quebec of a public health care system of high quality.

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

These findingswere explicitly adopted by Forget J.A. of the Court of Appeal and implicitlyendorsed by the other judges of that court. The trial judge relied on thereports 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. Wetherefore agree with the trial judge and the Quebec Court of Appeal that theappellants failed to make out a case of arbitrariness on the evidence.Indeed the evidence proves the contrary. We now propose to review briefly someof the evidence supporting the findings of the trial judge.

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

243                          The appellants argument in favour of a parallel private regime is oneof a win/win prediction; i.e. that waiting times in the public regime will bereduced if those who can afford private insurance leave the public waitinglists in order to receive private health care. However, the Kirby Reportstates flatly that allowing a private parallel system will ... make thepublic waiting lines worse (vol. 4, at p. 42 (emphasis added)). Thisconclusion is supported by the Romanow Report (p. 139: [P]rivatefacilities may improve waiting times for the select few ... but ... worse[nthem for the many]), the Turcotte Report (p.13-14), and the expert witnessesat trial (Marmor Report; Wright Report; Bergman Report).

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

245                          The Australian experience, as reported by Dr. Wright, is that at presentdelays in the Australian public system are caused largely by surgeonsreluctance to work in public hospitals and by their encouragement of patientsto 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 healthsystem where physicians who want to practise privately are required to practisea minimum number of hours in the public system. There, an Audit Commission ofthe National Health Service reported that surgeons do on average a third tohalf 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 thepublic system in order to conduct private practice (Wright Report, at p. 16;see also Le financement priv des services mdicaux et hospitaliers, p.30).

247                          Both the Romanow Report and the Kirby Report examine the currentshortage 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 ruralparts of Canada in particular (Kirby Report, vol. 2, at p. 137; Romanow Report,at pp. 166). Dr. Wright testified that the experience in alljurisdictions with two-tier health care systems (e.g., the United Kingdom,Australia, New Zealand and Israel) demonstrates a diversion of energy andcommitment by physicians and surgeons from the public system to the morelucrative private option (Wright Report, at pp. 15 and 22). This evidence issupported by the Romanow Report (at pp. 92), the Kirby Report (vol. 1, at p.105) and a 2003 Quebec report (Le financement priv des services mdicaux ethospitaliers, 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 datawhatsoever showing that a parallel private system would enhance potential forrecruiting highly trained specialists (see Wright Report, at p. 19).

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

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

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

249                          The evidence suggests that parallel private insurers prefer to siphonoff high income patients while shying away from patient populations thatconstitute a higher financial risk, a phenomenon known as cream skimming(Wright Report, at p. 17; Kirby Report, vol. 6, at p. 301). The public systemwould therefore carry a disproportionate burden of patients who are consideredbad 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 likely to wind up carrying the more complex high acuityend of the health care spectrum and, as a consequence, increase rather thanreduce demand (proportionately) in the public system for certain services(Wright Report, at p. 18).

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

251                          Reference has already been made to the U.S. health care system, which isthe most expensive in the world, even though by some measures Americans areless 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 noteliminated waiting times. The availability, extent and timeliness of healthcare is rationed by private insurers, who may determine according to cost, notneed, what is medically necessary health care and where and when it is tooccur (Kirby Report, vol. 3, at p. 48; Denis Report, pp. 12 and 16). Whetheror not the private system in the U.S. is better managed is a matter of debateamongst policy analysts. The point here is simply that the appellants faithin the curative power of private insurance is not borne out by the evidence putbefore the Court.

(v) Moreover the Governments Interest inFiscal 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 mostcost-effective method of providing health care is through public single-tierfinancing. Dr. Wright testified at trial that the public administrationcriterion [of the Canada Health Act] renders the Canadian health caresystem one of the most efficient in terms of the ratio of productivity toadministrative costs in the world (Wright Report, at p. 2; see also MarmorReport, 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 Report1999: Making a Difference (1999); Report of the National Advisory Councilon 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 resultof lower administrative costs and advertising expenses, the absence of overheadand the fact that the risk is spread over the entire population (see RomanowReport, at pp. 60ff; Kirby Report, vol. 4, at p. 31).

254                          Not only is there no evidence [that the] adoption [of a private healthcare system] would produce a more efficient, affordable or effective system (RomanowReport, at p. xxiv), there is also no clear evidence that private surgicalservices are more efficient or less costly (Wright Report, at p. 14; RomanowReport, at p. 8; Le financement priv des services mdicaux et hospitaliers,at pp. 23 and 33).

255                          With respect to the impact on the financial resources of the publicsystem, the experts testified that the introduction of a parallel privatehealth regime would likely increase the overall cost of health care toCanadians (Marmor Report, at pp. 8 and 10; Bergman Report, at p. 7; TurcotteReport, at p. 11; see also Le financement priv des services mdicaux et hospitaliers,at p. 24).

(vi) Conclusion on Arbitrariness

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

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

258                          As to our colleagues dismissal of the factual basis for Quebecslegislative choice, the public has invested very large sums of money in aseries of authoritative reports to analyse health care in this country and inother countries. The reports uniformly recommend the retention of single-tiermedicine. People are free to challenge (as do the appellants) the governmentsreliance on those reports but such reliance cannot be dismissed asarbitrary. People are also free to dispute Quebecs strategy, but in ourview it cannot be said that a single-tier health system, and the prohibition onprivate health insurance designed to protect it, is a legislative choice thathas been adopted arbitrarily by the Quebec National Assembly as that term hasbeen understood to date in the Canadian Charter jurisprudence.

(3) The Morgentaler Case Is NotApplicable

259                          Our colleagues the Chief Justice and Major J. rely substantially oncomments made by Beetz J. (concurred in by Estey J.) in Morgentaler whenhe invoked a principle of manifest unfairness. Nowhere in his analysispertaining to the principles of fundamental justice did Beetz J. use the wordsarbitrary or arbitrariness. Moreover the context for his remarks was theprospect of a criminal prosecution of a pregnant woman. Section 251(2) of the CriminalCode stated that a pregnant woman who used any means or permit[ed] anymeans to be used for the purpose of procuring her own miscarriage was guiltyof an indictable offence punishable with imprisonment for two years.Parliament provided a defence if the continued pregnancy would or would belikely to, in the opinion of a therapeutic abortion committee, endanger herlife or health (s. 251(4)(c)). The Court struck down the criminalprohibition because the prohibition was designed to operate only with thestatutory defence, and the Court found that in practice these committeesoperated unevenly and that the statutory scheme contain[ed] so many potentialbarriers to its own operation that the defence it create[ed would] in manycircumstances be practically unavailable to women who would prima faciequalify ... (at pp. 72-73, per Dickson C.J.). For Beetz J., too, a keyissue was that a significant proportion of Canadas population is not served byhospitals 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 Chartermust include a right of access to medical treatment for a condition representinga danger to life or health without fear of criminal sanction (emphasisadded). The context of this appeal is entirely different. This case, on thecontrary, invites the application of the dictum of Dickson C.J. in Morgentalerthat 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. particularconcern. Firstly, s. 251 required that abortions be performed in aneligible hospital, and not in clinics like those operated by Dr. Morgentaler(p. 114). This limitation, he found, had no logical connection with thestates avowed interest in the protection of the foetus (p. 115),i.e. the termination of the foetus would be the same wherever the abortionwas performed. Secondly, Beetz J. objected to the requirement that thecommittee come from the accredited or approved hospital in which the abortionis to be performed (p. 119). He said:

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

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

263                          On the contrary, given its goal of providing necessary medical servicesto all Quebec residents based on need, Quebecs determination to protect theequity, 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 Quebecresidents to obtain essential health care outside the province when they areunable to receive the care in question at home in a timely way is ofimportance. If, as the appellants claim, this safety valve is opened toosparingly, the courts are available to supervise enforcement of the rights ofthose patients who are directly affected by the decision on a case-by-casebasis. Judicial intervention at this level on a case-by-case basis ispreferable to acceptance of the appellants global challenge to the entiresingle-tier health plan. It is important to emphasize that rejection of theappellants global challenge to Quebecs health plan would not forecloseindividual patients from seeking individual relief tailored to their individualcircumstances.

(4) Conclusion Under Section 7 of the CanadianCharter

265                          For the foregoing reasons, even accepting (as we do) the trial judgesconclusion that the claimants have established a deprivation of the life andsecurity of some Quebec residents occasioned in somecircumstances by waiting list delays, the deprivation would not violate any legalprinciple of fundamental justice within the meaning of s. 7 of the CanadianCharter. On that point, too, we share the opinion of the trial judge andthe Quebec Court of Appeal, as previously mentioned.

D. The AppelantsChallenge 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 personalsecurity, 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, aperson shall maintain a proper regard for democratic values, public order andthe general well-being of the citizens of Qubec.

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

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

269                           As to the legal principles applicable under the QuebecCharter, 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 CanadianCharter and s. 9.1 of the Quebec Charter. However, s. 9.1 hasthe added feature of placing on the claimant the obligation to exercise QuebecCharter rights with proper regard to democratic values, public order andthe general well-being of the citizens of Qubec. These limitations haveparticular 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 derogatefrom its ss. 1-38 (s. 52). It was adopted and came into force severalyears before the Canadian Charter. It applies not only to state actionbut also to many forms of private relationships. It often covers the samegrounds as the Canadian Charter. Nevertheless, it remains distinct inits drafting and methodology (A. Morel, La coexistence des Chartes canadienneet qubcoise: problmes dinteraction (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 thesame ground as s. 7 of the Canadian Charter, but it does notmention the principles of fundamental justice. As stated earlier, it reads:

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

He also possesses juridical personality.

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

273                          In our view, on the evidence, the exercise by the appellants of theirclaimed Quebec Charter rights to defeat the prohibition against private insurancewould not have proper regard for democratic values or public order, as thefuture of a publicly supported and financed single‑tier health planshould be in the hands of elected representatives. Nor would it have properregard for the general well‑being of the citizens of Qubec, who arethe designated beneficiaries of the health plan, and in particular for the well‑beingof the less advantaged Quebeckers.

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

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

The concern,of course, is that once the health needs of the wealthier members of societyare looked after in the upper tier, they will have less incentive to continueto 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 QuebecCharter given its broad scope and its potential application to a wide rangeof 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 privateinsurance under the Quebec Charter. The objectives are compelling. Arational connection is demonstrated. The decision boils down to an applicationof the minimal impairment test. In respect of questions of social and economicpolicy, this test leaves a substantial margin of appreciation to the Quebeclegislature. Designing, financing and operating the public health system of amodern democratic society like Quebec remains a challenging task. It calls fordifficult choices. In the end, we find that the choice made a generation agoby the National Assembly of Quebec remains within the range of options that arejustifiable under s. 9.1. Shifting the design of the health system to thecourts is not a wise choice.

277                          In this respect, we should bear in mind that the legislative provisionschallenged under s. 1 concern all citizens of Quebec. They address concernsshared by all and rights belonging to everyone. The legislative solutionaffects not only individuals but also the society to which all thoseindividuals belong. It is a problem for which the legislature attempted tofind a solution that would be acceptable to everyone in the spirit of thepreamble of the Quebec Charter:

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

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

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

Whereas the rights and freedoms of the human personare inseparable from the rights and freedoms of others and from the commonwell-being;

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

279                          We would dismiss the appeal.

APPENDIXA

HealthInsurance Act, R.S.Q., c. A-29:

15. No personshall make or renew a contract of insurance or make a payment under a contractof insurance under which an insured service is furnished or under which all orpart of the cost of such a service is paid to a resident or a deemed residentof Qubec or to another person on his behalf.

.. .

HospitalInsurance Act, R.S.Q., c. A-28

11. (1) No oneshall make or renew, or make a payment under a contract under which

(a) a resident is to be provided with or to be reimbursed forthe cost of any hospital service that is one of the insured services;

(b) payment is conditional upon the hospitalization of aresident; or

(c) payment if dependent upon the length of time the resident isa patient in a facility maintained by an institution contemplated in section 2.

(2) This section does not apply for such timeafter a person arrives in Qubec 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.