From Supremes, An Illusory "right"

Is Medicare still legal? It is one of the many curiosities of the Supreme Court's recent decision on private health insurance that Canadians do not truly know the answer to that question.

"It is emphatically the province and duty of the judicial department to say what the law is." So wrote U.S. Supreme Court Chief Justice John Marshall in Marbury v. Madison, the case that established judicial review in the United States 200 years ago.

So what is it? Is it OK to sell private medical insurance in Canada, or at least in Quebec? That result would seem to follow from the top court's decision in Choualli v. Quebec -- but what is logical is not necessarily true.

Despite the headlines, Choualli v. Quebec did not exactly create a new right to buy private health insurance. Instead, the judgment created a weirdly conditional (and largely useless) right: When, in the opinion of a court, the delays in Quebec's health system grow so long that they threaten the lives and health of Quebec residents, then and only then those residents have a right under the Quebec Charter of Rights to purchase some form of private insurance.

Notice please how flimsy this "right" is. It fades in and out of existence depending on the Supreme Court's assessment of the reasonableness of Quebec's waiting times. If those waiting times were to be reduced, then the right might vanish again. How much would they have to be reduced? Why, that's up to the court to decide.

As a practical matter, then, Choualli v. Quebec has created not a new right for the citizen, but a new power for the judiciary. The courts from now on will supervise waiting times in Quebec and (probably) other provinces to decide whether those waits are too long. Health care used to be a shared responsibility of the federal and provincial governments; from here on, the judiciary will have to be included as third -- and senior -- partner.

But as for the ordinary patient, he or she remains almost as much a non-entity as ever. Over the coming weeks, there will be a huge fuss and fury over health care reform. New resources will be pledged, changes promised. The desperate and cynical Martin government will endeavour to present itself as the champion and savior of "single-tier" medicine. At the end of it all, some entrepreneur or corporation will have to make the decision whether to offer private insurance to Canadians or Quebecers. When it does so, the whole issue will have to be re-litigated from scratch. Governments will present the courts with a long list of alterations to the system, arguing that these alterations have improved matters to the point where private insurance is no longer needed to meet constitutional muster. And the courts will ... well, what will they do then?

Myself, I'm inclined to think that Globe and Mail columnist Jeffrey Simpson is right (hey -- it happens) that the courts will ultimately back down. The composition of the court will alter, and the judges' nerve will falter in the face of the campaign of demagoguery about to be waged against them by the Liberal government and the left. It's one thing to be attacked from the socially conservative right: In the law schools, that's a badge of honour. But to be attacked by their own constituency, by their own patrons, by their own former admirers -- that will be more than I think the judges will be able to bear.

So while the future almost certainly holds considerably more health care litigation, it is unlikely that the courts can be counted on to make good on their half-promise of reform. Which means that the job will fall back upon those to whom it always properly belonged: elected leaders, the media, the citizenry.

The court's bold bid to insert itself into health care decision-making did accomplish at least one good thing: It forever put the lie to the old propaganda about "the best health care system on earth." No Canadian politician can any longer get away with denying that Canada's hugely costly government health care monopoly is also dangerously, lethally, flawed -- and that it is lethally flawed precisely because it is a monopoly.

Sometime soon, Paul Martin will fill the airwaves with ads urging Canadians to overlook the corruption of his government and keep him in Ottawa to "save Medicare." The Supreme Court of Canada has written the text of the rebuttal ads:

"The evidence in this case shows that delays in the public health care system are widespread, and that, in some serious cases, patients die as a result of waiting lists for public health care.

"The evidence also demonstrates that the prohibition against private health insurance and its consequence of denying people vital health care result in physical and psychological suffering.

"It cannot be concluded ... that an absolute prohibition on private insurance is necessary to protect the integrity of the public plan."

But maybe the most scathing reply to this two-faced Prime Minister came from his own lips, during the debate on second reading of the gay marriage bill on February 16 of this year: "The Charter is a living document, the heartbeat of our Constitution. It is also a proclamation. It declares that as Canadians, we live under a progressive and inclusive set of fundamental beliefs about the value of the individual."

The surest way to demonstrate that value will be to liberate those individuals from a health care system that their own highest court has now condemned as a threat to their health and their lives.