Chaoulli's Legacy for the Future of Canadian Health Care Policy

Abstract

In Chaoulli, the majority of the Supreme Court of Canada struck down a Quebec law that prohibited the purchase of private health insurance for essential hospital and physician services. The majority found it to be in breach of the Quebec Charter of Human Rights and Freedoms. The Court was split 3-3 on whether it was also in breach of the Canadian Charter of Rights and Freedoms. The decision was initially considered of limited importance by many given that technically it applied only to Quebec. In the six months since the decision was released, however, it has become clear that the legal impact of Chaoulli will be dwarfed by its normative impact on policy debates across the country. Chaoulli has brought Canadian medicare to a fork in the road. At the time of writing, critical decisions are about to be taken across the country. Unfortunately, the level of debate about public and private insurance that has been sparked by Chaoulli reflects the poor account of public and private insurance dynamics in the Chaoulli decision itself. This article discusses the majority judges' poor appreciation of the interface between public and private health insurance across different health care systems and how, subsequently, this lack of understanding has been reflected in media discussions of policy options. The article also discusses likely future challenges in other provinces before moving on to the most critical aspect of all of this-governmental response and what the future holds for Canadian medicare.

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