CHAOULLI V. QUEBEC (AG), 2005

CASE SUMMARY WAIT TIMES QUEBEC’S HEALTH INSURANCE ACT (s.15) QUEBEC’S HOSPITAL INSURANCE ACT (s.11) VIOLATION OF QUEBEC’S CHARTER OF HUMAN RIGHTS AND FREEDOMS + LIFE SECURITY INVIOLABILITY

3 OPINIONS  DESCHAMPS  REFERRED ONLY TO THE QUEBEC CHARTER AND NOT THE CANADIAN CHARTER.  VIOLATES s1 OF THE QUEBEC CHARTER (LIFE & SECURITY)  s9.1 (JUSITICIFACTION FOR PROHIBITION)  DEMOCRATIC VALUES, PUBLIC ORDER, & GENERAL WELL- BEING OF THE CITIZENS OF QUEBEC  OAKES TEST  QUEBEC AG FAILED TO PROVE THAT SUCH RESTRICTION WAS MINIMALLY IMPAIRING

3 OPINIONS  CHIEF JUSTICE & MAJOR  VIOLATES s7 OF THE CANADIAN CHARTER  PRINCIPLES OF FUNDAMENTAL JUSTICE:  LAWS SHALL NOT BE ARBITRARY  ARBITRARY = NO RELATION TO OR INCONSISTENT WITH ITS OBJECTIVE  INTL. EVIDENCE SHOWS PROHIBITION OF PRIVATE INSURANCE IS ARBITRARY AND THEREFORE BREACHES s7 BUT CAN IT BE JUSTIFIED UNDER s1 - AS A REASONBLE LIMIT DEMONSTRABLY JUSTIFIED IN A FREE AND DEMOCRATIC SOCIETY?  OAKES TEST  FAILED TO PROVE A RATIONAL CONNECTION FOR THE SAME REASON THAT IT BREACHED s7

3 OPINIONS  BINNIE & LEBEL  “WHAT, THEN, ARE CONSTITUTIONALLY REQUIRED SERVICES?”  NOT AN ISSUE OF CONSTITUTIONAL LAW BUT ONE OF SOCIAL POLICY  “proper regard for democratic values, public order and the general well- being of the citizens of Québec.” Vs  Principles of fundamental justice  LEGAL PRINCIPLE  SOCIETAL CONSENSUS  IDENTIFIED WITH PRECISION/PREDICTABLE RESULTS

Charter-Based Judicial Review  INTERPRETATION  OAKES TEST  MINIMAL IMPAIRMENT  ROLL BACK LEGISLATURE

QUESTIONS -WHY DO YOU THINK THIS CHARTER CHALLENGE HAS BEEN ALL “BARK AND NO BITE”? -THE EXISTENCE OF METHODOLOGIES, SUCH AS THE “MINIMAL IMPAIRMENT CLAUSE” ALLOW LEGISLATURES TO RETAIN POWER OVER POLICY MAKING. TO WHAT EXTENT, GIVEN THE BROAD SCOPE FOR INTERPRETATION OF KEY PRINCIPLES, SUCH AS THOSE OF FUNDAMENTAL JUSTICE, SHOULD COURTS INTERVENE IN SOCIAL POLICY? OR SHOULD THEY BE INVOLVED AT ALL?

REFERENCES  Monahan, P. (2006). Constitutional Law: 3 rd Ed. Toronto: Irwin Law, 2006  Peter H. Russell, Rainer Knopff, Thomas M.J. Bateman, Janet L. Hiebert,.(2008) The Court and the Constitution: Leading Cases Toronto: Emond Montgomery.  Cohn, D. (2010). Chaoulli Five Years On: All Bark and No Bite? A Paper Presented at the 2010 Annual Meeting of the Canadian Political Science Association. Concordia University.