2004: A Year of Mixed Messages from the Court

Abstract

Predicting Supreme Court of Canada decision making can be risky business. At Osgoode Hall's Constitutional Cases conference, which was held on April 15, 2004, this presentation claimed that the Court, at present, can be described as a "play it safe" institution. That observation was tempered, a little, by the suggestion that the Court has also shown "institutional mettle" in a couple of instances. This assessment predated its blockbuster decision in Chaoulli v. Quebec (Attorney General), which was released, literally, as the conference publication went to press. The question is whether Chaoulli discredits that view of the Court.

In Chaoulli, the Court invalidated Quebec's prohibition on private health insurance, which was aimed at protecting the state's monopoly on health care services. While Deschamps J. provided the tie-breaking vote under Quebec's Charter of human rights and freedoms, the rest of the panel comprising seven judges in ail faced off evenly on the question whether restricting access to private health insurance violated section 7 of the Canadian Charter of Rights and Freedoms. Given the 2004 jurisprudence, which either rejected most claims under the Charter or decided them narrowly, Chaoulli came as a surprise.

For the time being, it is unclear whether this should be regarded as an isolated decision, or understood as a sign of renewed activism. In general, the Court under Chief Justice McLachlin is cautious, and has chosen its moments of intervention under the Charter with care. Knowing the perils of doing so, this comment predicts that Chaoulli will not set off a wave of activism at the Court; it suggests, instead, that the decision should be seen as an exception to the current temper of risk-averse adjudication.

Keywords: Chaoulli v. Quebec (Attorney General), private health insurance, health care services, Canadian Charter, s. 7

JEL Classification: K39