Wednesday, July 27, 2005

Senator Kirby Predicted Supreme Court Ruling in Quebec

Senator Michael Kirby's report into health care reforms clearly predicted the Supreme Court ruling in Quebec, and clearly indicates that a challenge could be made against the Canadian Charter as well. There are much smarter people out there than me - did somebody else notice this?

Also, it predicts the Liberal Party will ultimately allow a parallel private system. By "it" I mean "I".

Section 5.3, Timely Health Care and Section 7 of the Canadian Charter of Rights and Freedoms, within the report:
[I]n the Committee’s opinion, the failure to deliver timely health services in the publicly funded system, as evidenced by long waiting lists for services, is likely to lay the foundation for a successful Charter challenge to laws that prevent or impede Canadians from personally paying for medically necessary services in Canada, even if these services are included in the set of publicly insured health services.
The challenge would come against Section 7 of the Charter quoted in the report:
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.
The weakness in the argument is that the Charter does not provide for the "right" to provide health care:
In 1994, the Canadian Bar Association Task Force on Health Care expressed the opinion that there is no right to health care under the Charter. This conclusion was based on the view that the Charter is often interpreted as a negative rather than a positive instrument – one that generally does not compel governments to act in a particular manner, but rather protects Canadians against coercive government action.
That said, the report goes on:
In the context of health care, then, the Charter might not require governments to ensure that a certain level of health care is available in the publicly funded system, but the Charter could be employed to stop governments from taking restrictive measures that deny individuals from having the freedom to seek health care on their own in Canada when the publicly funded system fails to provide such care in a timely manner.
So, while it's okay for provinces to delist services, they then cannot say you are not allowed to access those services. Similarly, if the public system is unable to deliver those services due to long wait times, etc., and indicating that a patient cannot seek alternative remedies, that's a potential Charter violation.

And here is where Paul Martin is going to have troubles because he relies on court rulings to advance his causes:
It is the Committee’s strong belief that governments should not be passive and wait for the courts to determine how Canadians will gain timely access to medically necessary care. The time has come when governments must address the waiting time problem.
Remember, this report was issued in October of 2002.

The Quebec Supreme court ruling came on June 9, 2005. So, the report predicted almost 3 years in advance the court ruling striking down a government's inability to adequately deliver health care services. Either that, or the Supreme Court reviewed the report.

And, I'd like to once again draw attention to the fact that I again came independently to the same conclusion that the report did to avoid a "parallel" system:
The Committee’s preferred approach to solve the problem of long waiting times, and thus avoid the development of a parallel private system, is twofold: first, more money must be invested in health care for the purposes described in the other chapters of this report; and second, governments must establish a national health care guarantee – a set of nationwide standards for timely access to key health services
Can we fund the existing health care model, as proposed in option one? I have to assume not, because if I believe my "moderate, mainstream, Canadian-value centred" Liberal Party, the government would have done so, instead of flitting money on $2 billion gun registries and advertising programs in Quebec.

I know a certain federal party that does want to ensure the survival and strengthen the public health care system and they're here.

the full report is here:

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