A Critical Reading of Chaoulli v Quebec

Since the Canadian Charter of Rights and Freedoms was enacted in 1982 the

Supreme Court of Canada has worked diligently to establish the interests of its enumerated

provisions. A provision’s interest determines the pattern of analysis a court must use when the

particular provision is engaged. For example, if a law is found to violate a Charter right the

court assesses whether the violation is justified by s. 1. The interest of s. 1 is to uphold

reasonable limits of Charter rights that are “prescribed by law” and “demonstrably justified”.

Based on this interest the Supreme Court developed the four-step Oakes Test for s. 1 analysis.1

Since 1986 every time s. 1 is engaged the courts follow the Oakes’ pattern of analysis. This

“interest-pattern” cycle holds true for all Charter provisions. It is argued here that in a recent

Supreme Court decision, Chaoulli v Quebec2, the pattern of analysis for s. 7 of the

Charter was incorrectly employed by the concurring and dissenting judgements.

Interest-Pattern Context of Section 7

Section 7 states that “Everyone has the right to life, liberty and security of the

person and the right not to be deprived thereof except in accordance with the

principles of fundamental justice.” But what is the interest of s. 7? As Lamer J. noted in

Reference re Section 94(2) of the Motor Vehicle Act (BC):3

In the framework of a purposive analysis...it is clear to me that the interests which are meant to be
protected by the words “and the right not to be deprived thereof except in accordance with the
principles of fundamental justice” of s. 7 are the life, liberty and security of the person. The
1 1986 1 SCR 103. In order to be upheld by s. 1 of the Charter, an impugned law must meet all four
requirements of Oakes. The law must (1) possess a “pressing and substantial” objective; (2) employ means
that are rationally connected to its objective; (3) impair the Charter right “as minimally as reasonably
possible; and (4) maintain proportionality between its impairing-means and its objective and
proportionality between its deleterious effects and its salutary benefits.
2 2005 1 SCR 791, “Chaoulli” hereinafter.
3 1985 2 SCR 486, Casebook, 1162, “BC Motor Reference” hereinafter.
 principles of fundamental justice...are not protected interests, but rather a qualifier of the right not
to be deprived of life, liberty and security of the person.

Accordingly, two interests emerge from s. 7: the protected interest and the qualifying

interest.

The pattern of analysis for s. 7 reflects this two-fold interest. First, a court asks whether

an impugned law breaches one’s right to “life, liberty and security of the person.” If there is no

breach, the analysis ends. If there is a breach, however, the court proceeds to determine whether

the breach is in accordance with “principles of fundamental justice.” If it is, then s. 7 has not

been violated. However, if the deprivation is not in accordance, then s. 7 as a whole has been

violated. The court would then assess whether the violation can be upheld under s. 1 of the

Charter. This characterization of the s. 7 analysis reveals the central issue on which this

critique rests: what are the principles of fundamental justice?

In BC Motor Reference, Lamer J. states that principles of fundamental justice are “to

be found in the basic tenets of our legal system.” Our legal system is based upon, for instance,

the belief in “the dignity and worth of the human person” as well as on “the rule of law.” 4 But

Lamer J. included no indication that such beliefs are the only ones. This, accordingly, left the

judiciary with the implication that there could be more. In R v Morgentaler, Dickson CJ.

recognized that, as a basic tenet of the Canadian criminal justice system, it is a principle of

fundamental justice that a defence created by Parliament “should not be illusory or so difficult to

attain as to be practically illusory.”5 McLachlin J. (as she then was) in Rodriguez v British

Columbia (AG) also recognized it is a principle of fundamental justice that laws not be

4 Casebook, 1163.
5 1998 1 SCR 30, Casebook 1168.
arbitrary. “A particular limit will be arbitrary if it bears no relation to, or is

inconsistent with, the objective that lies behind the legislation.”6

Based on the assessment of the interest-pattern analysis of s. 7, the seeds of this critique

are exposed. Lamer J.’s recognition that principles of fundamental justice are found in the “basic

tenets” of the legal system and the subsequent jurisprudential search for appropriate principles of

fundamental justice in cases such as Morgentaler and Rodriguez, no exhaustive list for such

principles exists. Furthermore, as a result of the rational connection principle established in

Rodriguez, any law that violates the protected interest of s. 7 but is related to, or is at least

not inconsistent with, its objective cannot violate s. 7 on the basis of arbitrariness. In applying

these principles to the Chaoulli case, it is argued here that first, McLachlin CJ. and Major J.

misapply the rational connection principle; and second, that in their dissent, Binnie and LeBel JJ.

misconstrue the method for identifying “principles of fundamental justice” by resting their

argument on a dangerous assumption that such principles must be previously “recognized.”

Statement of Two Problems in Chaoulli

Chaoulli concerned a challenge against two provincial health laws that prohibited

Quebeckers from accessing health insurance to cover private services if those services were also

provided by the public system. It was argued that as the public health system is plagued with

wait-times, Quebeckers who cannot afford private health services without insurance assistance

are forced to wait for public health services. The laws violate their life and personal inviolability

right guaranteed by s.1 of the Quebec Charter of Human Rights and Freedoms and

echoed in s. 7 of the Canadian Charter. In a 4 to 3 majority the provisions were found in

violation of s. 1 of the Quebec Charter. This was dispositive of the issue. However, this

6 1993 3 SCR 519, Casebook 1185.

finding was articulated only by Deschamps J. The remaining six judges split evenly in their

assessment of the laws under s. 7 of the Canadian Charter.

In their concurring judgement, McLachlin CJ., Major and Bastarache JJ. found that the

laws violated s. 7 by infringing its protected interests and being contrary to principles of

fundamental justice.7 This later point was established on the basis that the laws were not

rationally connected to their objective. The dissenting judgement of Binnie, LeBel and Fish JJ. ,

however, would have saved the laws. Though they found that the protected interests of s. 7 were

infringed the laws did not infringe any “recognized” principle of fundamental justice and

therefore did not violate s. 7.8 After considering expert testimony about the nature of wait-times

within the public health system, the concurring and dissenting agreed that this management

mechanism created avoidable delays. The concurring judges reasoned that the “effect” of the

prohibition against private health insurance deprived Quebeckers of life, liberty and security of

the person because such delays can increase “the risk of complications and death.”9 The judges

moved then to consider principles of fundamental justice at which point their judgements

diverged.

McLachlin CJ. and Major J. attempted to apply the rational connection principle as set

down in Rodriguez. There, McLachlin stated concerning “principles of fundamental justice”:

They are, we are told, the basic tenets of our legal system whose function is to ensure that state
intrusions on life, liberty and security of the person are effected in a manner which comports with
our historic, and evolving, notions of fairness and justice...Without defining the entire content of
the phrase "principles of fundamental justice", it is sufficient...to note that a legislative scheme
which limits the right of a person to deal with her body as she chooses may violate the principles
of fundamental justice under s. 7 of the Charter if the limit is arbitrary. A particular limit will be

7 Chaoulli, para. 153.

8 Ibid., para. 242.
9 Ibid., para. 124.
 arbitrary if it bears no relation to, or is inconsistent with, the objective that lies behind the
legislation.10

If this statement is a valid principle of law (and for the purpose of this critique we can assume so

because both the concurring and dissenting judges in Chaoulli accepted it as so), then two

questions of significant importance arise: (1) do the basic tenets of our justice system “evolve”

as our “notions of fairness and justice” develop? (2) what is the standard for assessing a law’s

relation to its objective under s. 7 analysis? The former goes to the dissent, the latter to the

concurrent.

1. Do the Basic Tenets of Our Judicial System Evolve?

This question must be considered with two qualifications. First, evolution cannot be

defined as mere change, as this would be completely insensical. One cannot justifiably argue

that the basic tenet like our belief in “the the rule of law”, for instance, may tomorrow change to

a belief in “the rule of lawlessness” on the ground that these things evolve. That is bad

philosophy. In this context “evolution” must mean “progress.” As new social issues arise and

societal values embraced, legal principles and conceptions articulated in the past are necessarily

altered to reflect our refined understanding. Given this meaning, evolution is consistent with the

nature of our legal system, namely, the role of precedent within common law. Our conception of

evolution therefore rests on two ideas: progress and precedent. But neither ideas connote

stagnancy. The nature of our legal system requires evolution, refinement and discovery, as was

evident in the development of the s. 7 interest-pattern jurisprudence. Therefore, one cannot

understand why Binnie, LeBel and Fish JJ., in their reflection on the health-care debate in

Chaoulli make the following statement:

10 Rodriguez, emphasis mine.

 Whether [the] growing level of expenditure [in health care] is sustainable, justified or
wise is a matter on which we all have opinions. In the absence of a violation of a
recognized “principle of fundamental justice”, the opinions that prevail should be those
of the legislatures.

This is astounding. Given our above discussion of evolution within the common law, assumes

that a law may only breach s. 7 if the protected interests are infringed and the law is not in

accordance with an already identified (“recognized”) principle of fundamental justice.

The dissent’s assumption is dangerous because it undermines the very nature of our legal

system. If all principles of fundamental justice are recognized, then an exhaustive list exists. No

refinement can occur. Progress is lost and so is precedent. If a new social issue arises that reveals

a law’s infringement s. 7‘s protected interests, the Canadian Charter cannot protect any of the

potential innocent if the law does not violate an item on the exhaustive list. This is problematic

as it goes straight to the heart of the Charter’s purpose.

2. What is the Standard for the Rational Connection Principle under s.

7?

As noted above, it was found that the health laws prohibiting private insurance breached

s.7 as they were arbitrary. In other words, they possessed no relation to the stated objective of the

legislation. Although the dissenting judges argue against this point, two other points of criticism

arise from this issue that were not considered by the dissent.

First, Deschamps J. in her analysis of the laws under the Oakes Test finds that the laws

“show an undeniable connection” with their objective.11 This is inconsistent with the eventual

findings of the concurring judges.

11 Chaoulli, para. 58.

 Second, the concurrent judges find that the laws have no rational connection with their

objective because they misconstrue the objective of the provisions. The concurring judges

incorrectly conceive of the law’s objective by conflating the meanings of “effective” health care

with “quality” health care. There is a difference. It was argued in the case that the purpose of the

provisions was to protect the health care system in order to maintain “effective health care

under the public health system.”12 However, after assessing the evidence from other countries the

judges impose another objective: “maintaining quality public health care”.13 The difference

between effective health care and quality health care is subtle. However, quality implies

comparison whereas effective implies measurement. If something is good it has a quality of

goodness which is assessed by comparing it to the good. If something is “designed” to be good,

it either does so effectively or it does not, and this is a matter of measurement. It was the position

of the government that the laws were designed to protect effective public health care by

funneling all finances to that end and limiting funds form going elsewhere. The court misses this

by employing a different standard, that of quality.

It is argued here that both of these concerns challenge s. 1 analysis by calling into

question the importance of the rational connection stage of the Oakes Test.

Word Count: 2,199.

12 Ibid., para. 135, emphasis mine.

13 Ibid., para. 152, emphasis mine.