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Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology

Issue 18 - Evidence

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OTTAWA, Wednesday, June 6, 2001

The Standing Senate Committee on Social Affairs, Science and Technology met this day at 5:35 p.m. to examine the state of the health care system in Canada.

Senator Michael Kirby (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, it may come as a surprise that the Social Affairs Committee's study on health care really is somewhat of a preamble to laying out what, in our view, the federal role ought to be in health care. Further, in the course of that study, it is amazing that perhaps we should have found ourselves confronting a constitutional question. Let me, just for the record, explain to you how this issue arose, and in so doing thank my colleague Senator Beaudoin, who is a constitutional expert in the Senate and who was able to find for us our two witnesses today, Professor Jackman and Professor Martin.

The issue that arose is the following: Given the fact that health care is regarded by most people - and indeed, if you look at some of the words used by people such as Justice Bertha Wilson, health care is regarded as one of those essential services that if it is not protected by the Charter, it probably ought to be. Yet in the evidence before the committee over the last several months, it has become increasingly clear that government has restricted access to health care services for budgetary reasons. That is to say that what has happened is that, by limiting the amount of money available for health care, government has, essentially, made timely access in certain fields no longer possible.

Thus the question that arose before the committee was essentially the following: Suppose someone is on a waiting list for a health care procedure for a considerable period of time, and as a result of the delay engendered by being on that waiting list, they die. The question then is, given the fact that the waiting list was created by government in an attempt to control money, which is the fundamental cause of the lack of timely access, has that person's Charter rights been violated or, alternatively, is it possible for government to have a lengthy waiting list for health care procedures and thus restrict timely access, and simultaneously deny individuals the right to purchase the service from a parallel private system? That is to say, can you simultaneously make it difficult to obtain a service in the public system and make it equally impossible, or very difficult, to obtain that same service through a private system? In other words is that, in fact, the situation that we now have in the country, and is it constitutional, in particular vis-à-vis the Charter of Rights?

That is the question we have posed to our two witnesses and, as I understand it, Professor Jackman will comment on it from the point of view of section 7, which is the life, liberty and security of the person provision, and Professor Martin will comment on it from the point of view of section 15, which is the famous equality rights provision. I suggest that each of you take 10 minutes or so to summarize your views on the question, following which we will have a round table discussion, recognizing that our ultimate end is to get a pretty good fix on the question of whether or not the Canada Health Act is as it is popularly interpreted. In my opinion, that is an important milestone because, in a report that we have already made, it is very clear that many things that people think about the Canada Health Act are not, in fact, true. In fact, a great many things that elected politicians of all parties say about the Canada Health Act are not true - or, at the very best, they are misleading. Therefore, it would be important for us to understand how far government can go in denying people access to a parallel system. That is really the question. With that as the laying out of the issue, Professor Jackman, would you care to give us your views?

Ms Martha Jackman, Professor, Faculty of Law, University of Ottawa: Mr. Chairman, this is a topic that is dear to my heart, and I am very glad to be able to talk to you about it.

I think, as a preamble, it is probably important to take just a minute or two to understand how the Charter applies in the health care context because, initially, the Supreme Court seemed to indicate that private and semi-private health care providers - hospitals, most notably - were not subject to Charter review. That was illustrated in the early Stoffman v. Vancouver General Hospital case where a physician complained about being forced to retire at 65. He challenged this ruling, and the court said that the Charter did not apply to the hospital's decision.

In a subsequent case, the Eldridge case, which Professor Martin will surely discuss in greater depth, the court revisited that issue and essentially held that while it remains true that hospitals, for the purposes of the Charter, are considered as private rather than governmental entities, the Charter does apply to government delegates when they are delivering publicly funded public services. Therefore, when hospitals are making decisions about the delivery of health care, those decisions are clearly subject to review. That being the case, then, so government entities such as federal, provincial and municipal governments and public health authorities would be subject to Charter review. Thus many or all quasi-public institutions that deliver publicly funded health care are also subject to Charter review, and I personally would argue that even physicians are so subject because they are simply another mechanism for delivering publicly funded services. However, the issue of the application of the Charter to physicians has not yet been addressed by the court. Nevertheless, I think we can take as a given now that the Charter does apply in the health care sector, and certainly to the decisions of government which we are talking about here in the context of the Canada Health Act.

In terms of your hypothetical person who is ill or dying while on a waiting list for a rationed health care service, he or she would have to overcome a few hurdles before succeeding in a Charter claim. First of all, section 7 guarantees the right to life, liberty and security of the person, and provides that those rights can only be deprived in accordance with principles of fundamental justice. Thus the first stage of the analysis for the patient is to prove that either her death whilst on a waiting list for a rationed health care procedure, or the risks of her illness remaining untreated while on such a waiting list are a threat to her security of the person, or indeed her life.

I would argue that, absolutely, section 7, the right to life and security of the person, does include a right to health and to health care services, and indeed to publicly funded health care services. How I get there is really by looking at section 7 in the context within which it was adopted and, as Justice Bertha Wilson suggested in the Stoffman case, which Senator Kirby alluded to, it is a defining feature of our society. I think Canadians consider access to publicly funded health care as a right of social citizenship, and if you went around and asked ordinary Canadians what they think the right to security of the person might mean, surely they would refer to fundamental social programs such as welfare, unemployment insurance and health care.

In addition, shortly before the enactment of the Charter, Canada ratified the International Covenant on Civil and Political Rights as well as the International Covenant on Economic, Social and Cultural Rights. The right to life under the International Covenant on Civil and Political Rights has been interpreted quite expansively, and in fact in a recent report of the UN Human Rights Committee on Canada's compliance with that covenant, the committee remarked critically on Canada's failure to address poverty and other social welfare problems, including the lack of access for poor women to certain aspects of the health care system. Therefore, certainly in terms of the civil and political rights covenant, one could argue that the right to life should include a health care aspect.

However, what is more important, the International Covenant on Economic, Social and Cultural Rights explicitly recognizes the right to health and the right to publicly funded health care services. In addition, the Supreme Court of Canada has recognized increasingly that when we are interpreting Charter guarantees, we must do that in a way that corresponds with, or gives effect to, the international human rights commitments which Canada has undertaken, and these are obviously binding on the provinces as well. Therefore I think one could argue, at least in principle, that the right to life, liberty and security should protect health care related interests.

Where it becomes difficult is to identify what exactly that means. In other words, to state broadly that publicly funded health care and access to it is an aspect of a section 7 right, and then to get from there to saying that when someone is languishing on a waiting list, or even potentially dying while they are waiting for service, that this represents a section 7 violation, that is a lot more difficult. The reasons for my saying that is that the Supreme Court of Canada, and even more so the lower courts, have been very reluctant to interpret the Charter in a way that imposes positive obligations on government. Obviously, the repercussions of finding a right to health under section 7 is that the government has to spend money to ensure that we have access to that right, or that we can actually enjoy that right. Therefore, in terms of judicial attitudes to these types of claims, you have some problems.

In addition, as I mentioned, once you demonstrate that you have been deprived of a life or security of a person-related interest, that deprivation is only unconstitutional if it does not respect principles of fundamental justice. What does that notion mean in the health care context?

In a non-health care context, decisions which have been found to not be in accordance with principles of fundamental justice have been decisions which violate fundamental tenets of our legal system, for example the rule of law, decision-making which is arbitrary and discriminatory, and there is some suggestion that decision-making which violates international human rights norms could also be characterized as not being in accordance with principles of fundamental justice.

To date, most of the decisions that the court has rendered on this issue have been in the criminal or quasi-criminal area, and the procedures which have been considered fundamentally unjust have really been found lacking on due process type grounds. Thus, failure to provide an adequate hearing; in one case, for example, failure to provide access to Legal Aid in a child apprehension situation. However, the court has not gone anywhere near any kind of decision-making such as we are talking about here.

What kinds of arguments would you need to make, then, to support a claim that having a person wait for costly, rationed health care service is a violation of fundamental justice? I think that claim would be difficult to make for a number of reasons. The biggest obstacle is that clearly there is some rhyme or reason to the decision-making in this area. After all, there is a process for rationing services through provincial health insurance regimes. Services are listed and then they are made available within the means of governments. The real problem here again, though, is one of judicial attitudes and a general reluctance on the part of the courts to interfere in things that they consider to be social and economic policy-making, and clearly, health care decision-making falls into that category. Thus it would be up to the patient able to convince the court that her right to life or security had been infringed, that the process whereby it was infringed was not in accordance with principles of fundamental justice because it was simply irrational, that this decision-making really does not have any rhyme or reason to it, that it is just ad hoc decision-making based on what costs the most, what sectors of the medical profession are best at advocating for funding for their interventions, et cetera.

The final obstacle for the patient is under section 1 of the Charter because section 1 provides governments with the opportunity to attempt to justify violations of individual rights. Section 1 says, essentially, that individuals are guaranteed their rights subject to such reasonable limits as are demonstrably necessary in a free and democratic society. The court has developed a fairly legalistic set of rules for deciding when a violation of an individual right is justifiable and when it is not. The first thing that the government has to show is that the objectives it was pursuing when it violated the individual's right were sufficiently important. The second set of things that it has to demonstrate is that the means it adopted to pursue those objectives were rational and proportionate. If we take again the example of the patient on the waiting list, what we would really say is that the patient, as Senator Kirby has presented it, is a victim of our single-payer health care system where resources have been rationed.

Is rationing of health care services an important objective? Here I think I would have to argue that absolutely it is. Senator Kirby sent me a recent Quebec Superior Court case that addressed this issue, and one of the expert witnesses who appeared on that case was Theodore Marmor from the Yale School of Public Administration, as I recall, and he, along with just about anybody else who has ever looked at this issue, acknowledges that the most rational, effective and accessible health care system is a single-payer system such as the one we have in Canada. It has been clearly demonstrated that private health care costs more, and that parallel public and private health care costs more, and that, in the end patients do not end up better served. In particular, patients who are economically disadvantaged are not better served in a parallel or a private health care system. Therefore when the government suggests that people are on waiting lists because, by necessity, in a single-payer system we wait in turn to have access to certain particularly costly health care interventions where there are human resource or other constraints, and that maintaining a single-payer, public health care system that is accessible without barriers related to costs could be easily characterized by the government as an important objective.

Are the means rational that the state has pursued in achieving the objective of a publicly funded health care system that is successful, without barriers to cost? Again, I think it would be relatively easy for the government to demonstrate, given all the study that has been applied to this issue, that that regime is a rational one. I guess where the problem comes in is at the level of proportionality. That is to say, are the benefits that we as taxpayers gain from the fact that we have capped our spending in this area proportionate to the harm to that individual acute care patient who is waiting on a waiting list, and potentially even dies while on that waiting list? I think it is here that my bias will probably become obvious. In my opinion, they are, from a public policy perspective, when you look at the potentially bottomless pit of acute care health funding, and the extent to which acute care health spending dominates public budgets at the expense, for example, of welfare and social services. The changes under the CHST clearly illustrate this. We had a regime under the Canada Assistance Plan whereby social assistance and social services had to meet conditions equivalent to what we impose on provinces - accessibility, rights of appeal, et cetera - that was repealed under the CHST, but the criteria for the Canada Health Act were retained. That has simply exacerbated the focus - and I think we saw that in the last election - on acute health care spending as being the sole and most important objective of government. This is an area of public spending that really is difficult to control. Therefore I would have to say that, even on the proportionality test, the Canada Health Act is probably, in my view, defensible.

Therefore, in short, the answer to your question is that in principle, yes, the patient has a Charter right which she can claim, but absent - as I think Professor Martin will probably discuss - evidence of proof of discriminatory allocation of health care spending, the challenge would probably be difficult.

The Chairman: Thank you for that, and we will hear from Professor Martin, but just let me pose for you two questions to ponder and to which we can return later. The first is that you talked about the right to health care services. I would argue that the right is to timely health care services, and I think the adjective is absolutely critical. Second, I guess I could not disagree with you more on your section 1 comments. I am glad you used the word "bias": You said that you have a bias toward the egalitarian nature of the single-payer system, and so do a lot of us on the committee. However, I think one can reasonably argue - and I would argue - that the Canada Health Act effectively makes a parallel private system infeasible, and indeed, even though it is a misnomer, it is often interpreted as doing that, and since Canada is the only country in the world, of the major industrialized countries, that operates a one hundred per cent public system, it is difficult for me to accept that if your rights are infringed by not having timely access to service, that that is defensible under section 1. I would argue that it is not, but we can come back on that.

Professor Martin, that was just to give Professor Jackman something to think about. Now it is over to you. Thank you for coming, all the way from Calgary, and all the way by video conference. That is great.

Dr. Sheilah Martin, Professor, Faculty of Law, University of Calgary: I would like to thank you for inviting me to your meeting. I am surprised that you have reached this stage in your deliberations without addressing constitutional issues, Senator Kirby. They seem to be the perennial Canadian questions. Health care has usually raised constitutional issues in terms of division of powers and collaborative and cooperative federalism.

However, the issues that we will speak about today deal more with individual rights being claimed under the Charter against government action. As Professor Jackman illustrated in her introductory comments, it is very important for us to understand that the Charter only applies where the state is acting. In the health care context, we have seen that the state will act if it has laws, if it puts forward a definition of what is a medically necessary service, if it allocates hospital beds and positions, and exercises due control of doctors' numbers - all of those sorts of things. Therefore there is a great scope for the use of the Charter in these cases.

However, before we get to the Charter, perhaps I should add that the example you provided of an individual questioning the government's allocation and timely access to medical services raises a whole other area of law that does not depend on the Charter, and that is personal injury law, or torts, or "des obligations, en français." There, the claim is that the government has provided services in such a negligent manner that an individual has suffered damage and claims compensation. In fact, in Alberta a case is currently proceeding through the civil courts in which an individual plaintiff on a waiting list has questioned the allocation of resources leading to that individual's deteriorated health. That is a whole other area that may have an impact on your deliberations, and I just raise it at this stage.

In terms of the Charter itself, one of the questions that I was asked in the written materials that I received related to the provision in the Canada Health Act which, in essence, sets up as a term and condition of payment for a province to receive full compensation that there not be private clinics or extra billing. I must say that most of my research in relation to the Charter and health care has been from a different angle. Most of my analysis has been from the perspective of an individual who wants access to something that they would say is a medically necessary service, but that is not covered by the province. For example, someone who wants to have in vitro fertilization treatment in Ontario challenges the Ontario legislation, saying that it is depriving them of equal access to a facility that they need to exercise their reproductive rights. The focus of that kind of Charter challenge is equal access to have the service funded under the public system.

Perhaps the most famous medical case on equality is the decision of the Supreme Court of Canada in the Eldridge case. In that case, the plaintiff sought government funding for sign language interpretation while attending at the doctor. This person was basically saying "In order to have equal access to health care, I need a translator who can help me communicate with my physician. I need the accommodation or the bridge of translation services in order for me to exercise my health care rights in an equal manner as compared to someone who does not suffer from my disability."

What was interesting in that case, and will relate to some things I want to say in a moment, is that the decision that sign language interpretation was not available was made by the medical commission that determined what was a medically necessary service in that province. What the plaintiff was attacking was the decision by this administrative tribunal, by this commission, as to how it interpreted what qualified as a medically necessary service.

The Supreme Court of Canada said that there is a differentiation here; that the definition it is discriminatory; that it deprives hearing-impaired individuals of their equality rights; that it offends their dignity; that it does not give them equal access to necessary health care services. In addition, the Supreme Court of Canada, in quite a novel sort of approach, held that health care providers were required to provide sign language interpretation and to facilitate this individual's rights.

When we look at this case, it is important to understand that, in the history of this legislation, this service had previously been provided but had been cut because of government cutbacks, and nothing else had been done or provided to accommodate this particular class of patient. The cost involved was in the range of about $150,000. The court, which is usually very mindful of imposing costs and spending health care dollars, nevertheless, in this instance, by its interpretation of this act, was saying that it required the health care providers to spend funds in this fashion.

I mention the Eldridge decision because I think it is a good comparison case and a good starting point. The problem that arises when I turn my mind to the question of how to frame an equality challenge to the allocation of health care dollars is to ask: What would the plaintiff be attacking? The written materials that I received suggested that perhaps there could be an attack to the Canada Health Act insofar as it sets up a system which may appear to preclude access to private health care.

When considering the vulnerability of the Canada Health Act to challenge, I think that we must first contemplate the nature of that act. Yes, it is an act of the federal government, but I am not sure that it is the type of legislation that would be subject to Charter scrutiny. Generally, the act looks very much more like an intergovernmental agreement in which the federal government is laying out the terms and conditions under which a province can enjoy full compensation, rather than legislation to determine the allocation of health care resources in a direct way to a particular individual. That is my first comment.

My second comment in relation to the case posed is that even if you read the Canada Health Act as a health charter for Canadians, I am not so sure that individuals could claim under its terms, argue about its content, and seek to use the Charter to enforce their rights under the Canada Health Act. In other words, I am not sure that the Canada Health Act itself can be read as prohibiting access to private health care. I think that when you look at the set-up of the Canada Health Act, it is quite clever. It says to the provinces, "If you do the following, then you will receive full compensation. If you do not do the following, you will be subject to a penalty system." That does not necessarily translate into a prohibition or a preclusion of an individual from obtaining access to private health care. I think that that is quite a big issue.

In contemplating the individual who might want to challenge on the basis of unequal allocation of benefits, such individuals would probably target their claims to provincial governments as opposed to the federal government. It is not at all clear that an individual could go against the federal government directly using the Canada Health Act. The Canada Health Act, of course, would be important and relevant to the provinces. I think that that is a very big initial question.

The next thing I would ask is: How would this individual frame their claim under section 15 of the Charter? Section 15 is an equality rights section. It basically says that the court can review whether or not an individual has received the equal benefit or protection of the law, or equality under the law, on the basis of certain prohibited grounds. We also know that while some of those prohibited grounds are enumerated, we can add other, different grounds to them.

In my opinion, the equality sections have a bit more promise in terms of some of the arguments than the section 7 arguments. As Professor Jackman rightly notes, there is a real problem under section 7 with whether or not the government is under a positive obligation to pay. It is one thing to say that an individual has a right, and that the government cannot burden that right; it is quite another thing to say that the government needs to pay to a certain level.

It is easier when dealing with equality rights to scrutinize allocations. Equality rights involve particular action and a comparative exercise. In other words, you must know what are you comparing it to. However, intrinsic in that idea is that if the government gives a benefit, it has already established a presence of sorts. It has already discharged whatever obligation it may have. Also, the scrutiny is a bit different: It is not must the government provide funds, which is more like section 7, but the question under equality is when the government provides funds, or when the government makes provisions about medically necessary services, it has to do so in a non-discriminatory way. That is a different question, and one that, in my opinion, sometimes allows greater scope into the allocation of resources.

Turning now to the kinds of cases that have been undertaken under equality rights, the Eldridge case, as I mentioned, was to do with access to sign language translation for medically necessary services. There have also been challenges for pensions, unemployment insurance, social benefits, the allocation of citizenship rights, so the terrain of equality rights is a bit different.

In addition, equality rights tend to be invoked within a context in which the individual is not prejudiced by notions, like under section 7, that all that he or she is doing is exerting an economic right. I am sure Professor Jackman will talk about this aspect some more later, but under section 7 it is not clear that, if you characterize what the person is asserting as an economic right, it will get a whole lot of protection. That same sort of thinking does not necessarily seem to apply in the equality context.

When we go through the equality analysis, there are some real questions that would arise even if the plaintiff was attacking legislation in an appropriate way. The claimant needs to show that they are receiving different treatment than other people are receiving. Here you get into problems of what comparison groups you establish and how you frame the case. For example, is the person an Albertan saying "Our funding is reduced because we are receiving penalties under the Canada Health Act, therefore our lines are longer than they are for someone, for example, in Manitoba, who is not subject to the same kind of penalty structure"? In addition, it is not entirely clear how the categories would be framed by an individual in order for him to say "I want to compare myself to this other individual." That is a problem. It is also a problem to attempt to base a case on geographic discrimination between provinces because, of course, the provinces have the ability to set their own standards for medically necessary services. Thus the comparison is a little bit problematic.

A person may argue that "I have money and I can afford to pay for access to services, but these services are not available here because of this overall government structure." That would be a hard argument, I think, to put forward, because oftentimes the court says that the question is not just: Is there a difference between those who can pay and those who cannot? The court goes the next step and says: Is that a prohibited ground of discrimination? Is that either listed in the Charter - which it is not - or is it so similar to the grounds that are listed in the Charter that we will grant protection to individuals because of that characteristic: those who can pay and those who cannot? It is not entirely clear that the court would, under its current tests, affirm that the ability to pay is a proper differentiation. Sometimes they will say that the inability to pay is a ground that can be sort of protected because they look to things like vulnerability, historic discrimination, or relative powerlessness in society, and so those kinds of considerations, as I said, might make this exercise very difficult.

Thus, in my opinion, there will be difficulties in establishing a breach of an equality right, even though, with a bit more thought, I might say that there are definite equality implications to the allocation of medical services. But then we move to a section 1 analysis, because all sections of the Charter - 7 or 15 - have the same criteria: that the plaintiff would need to prove a breach, and once the plaintiff proves the breach, then the government must justify its action under section 1.

In the equality context, we see a bit of a blurring between whether or not there is a breach and the justification under section 1, especially in cases where the court is asked to consider complex social legislation which deals with the allocation of expensive resources. I can send the committee multiple citations where the court has said, "We will respect Parliament's choices. We will defer to their selection of an appropriate regime if it has these characteristics." Professor Jackman raised the issue of what costs more.In my assessment, the court would not be looking at what costs more, in the same way that your committee would be assessing rationality. The court has a different question. The court says: Was Parliament rational? Was Parliament allowed to make the choices that it made when it assessed the cost-versus-care equation, on how it came to prioritize its allocation of resources? It is very difficult for courts to second-guess Parliament on these complex issues. Even though the courts are prepared to review the allocation of benefits, there is still a huge amount of deference that arises.

It is interesting - and I will end on this note - that there have been about 45 cases before the Supreme Court of Canada on equality rights, but it is only in the context of mandatory retirement that the Supreme Court has ever said that there was a breach of a right and that the government could save it. They made that extraordinary sort of finding because they looked at all of the benefits, all of the complexities, all of the give-and-take that went into mandatory retirement policies. If I were to look for cases that might have parallels with a government reviewing health care allocation, the mandatory retirement cases are probably at the same level of complexity, and may invite the same level of deference.

A recent case in the Supreme Court of Canada was the Lovelace decision, which dealt with the allocation of monies from aboriginal casinos or First Nations casinos and whether that money should also go to individuals who were not members of that specific First Nations. In that case the court was very deferential to the agreement aspect, and the notion that these were arrangements that were more in the nature of contract than legislation. That brings me back to my first point that the overall structure of the Canada Health Act makes it difficult to grab something with which to start the argument in the first place.

The Chairman: Thank you, Professor Martin. Let me just make two comments before we proceed with questions. With respect to the Canada Health Act, I can assure you that it was not a federal/provincial agreement, in spite of the fact that it reads that way. At the time that the Canada Health Act was introduced, there were a number of provinces which were strongly opposed to it.

Second, I agree with you that the Canada Health Act does not explicitly prohibit access to private health care, but I would argue that the way in which the legislation is structured, in terms of the penalties it imposes and in terms of the requirement that a doctor either be entirely in the public system or entirely out of it, has the net effect, from a practical, economic standpoint, of prohibiting private parallel systems. Therefore, while I would agree with you that it does not do so explicitly, I would only argue that because of the structure of it, the way in which it was done was - and I think the words you used were "very clever," and I would agree with that - but that its net effect is that it prohibits private care.

Indeed, I would argue that most politicians of all parties who address the question take that as one of the consequences of the Canada Health Act. I would argue, therefore, that when I say that that is its practical effect, that is also the view that most elected officials have of its effect, and indeed they claim that that is really what it was designed to do.

Senator Beaudoin: Obviously, as Professor Martin has said, up until recently it was under the division of powers that we had cases in health, but now with the Charter of Rights and Freedoms and the famous sections 7, 15 and 1, it has become a huge debate under the Charter.

We have absolutely no case clearly on the point that we are considering today. However, it will come. It is obvious that it will come. It cannot be otherwise. We know that section 7 has not been generously interpreted in the field of economy. In some other areas, yes, no doubt, but in the field of property, property rights or economy, it is quite different.

However, I have to say that the right to life certainly or implicitly includes the right to health. It cannot be otherwise in our society. I know that the courts are not there to legislate, but they are there to interpret, and the interpretation of constitutional law - and we are used to it now after 450 cases on the Charter - is something that is huge.

Thus I would like to come first to the question of the imposition of an obligation to do something. Both of our witnesses referred to the Eldridge case, but in that case the Supreme Court imposed an obligation to do something. That case was based on section 12, and then, of course, we have section 7. Therefore, on one hand, there is, in my opinion, a certain right that is implicit in 7, a right to health, because how can you have the right to life without having the right to health? That is my first point. As Professor Jackman stated, that is in accord with our international covenants that we have signed. Therefore, in that sense, there is already a protection.

The court are very hesitant to be involved in economic cases. It is up to the Parliament to do that, and the spending power, of course, is a power of the legislative branch of the state. However, I would like first to say that the right to impose an obligation under section 15 is certainly a possible, and they did it in the Eldridge case.

We have a great deal of legislation in this country, and all of that legislation is subject to the Charter of Rights and Freedoms. We cannot avoid that, and the courts will not avoid that. As far as legislation is concerned, and I agree with the Chair that health, to a great extent, is in the formula of the legislation. There is no doubt in the world about that. Under the division of powers, we know what the provinces can do, we know what the Parliament of Canada may do, and that is legislation. Therefore I think that the courts will probably go a little bit further in this field because this point will be raised, it will be discussed, and since the Parliament and the legislatures have not avoided legislation, one of these days we will have a case before the Supreme Court exactly on the point that we are discussing tonight: whether it is possible to have two systems or a parallel system. Some people will say, "Under section 7, the right to life includes the right to health, and in a very difficult situation the private system becomes necessary." Some others will say "No, section 15 will apply, and we must have equality before the law." Of course, the court will not give precedence to either section 7 or to section 15. The court will try to give effect to both sections at the same time. I would like to know your reaction to that scenario.

I am of the opinion that the court made it clear that there is an obligation to do something, and whether it is based on section 7 or section 15, it is still a mandatory obligation. They did that in some other cases that have nothing to do with the issue before us today. For example, take the secession case, or that of constitutional obligation. Therefore I think there is such a thing as the right to impose something.

Ms Jackman: You are absolutely right that the notion is simply inaccurate that somehow the Charter only prevents the state from acting and does not impose positive obligations. It does not reflect the legislative history of the Charter, and it is also incompatible with international human rights treaties that we have ratified which do not create this false distinction between negative and positive obligations. The court, in the recent Baker case, recognized very clearly that as you mentioned, sections 7 and 15 must be read together, and that reinforces the argument that section 7 has a positive content to it, but as well that they must be read consistently with international obligations.

What will probably be decided more quickly than the health case is the welfare case. Before the Supreme Court of Canada at the moment is the case of Gosselin in Quebec. Essentially, what Louise Gosselin is challenging is a provincial welfare rate of $170 a month for those who are under 30 years of age, and even the government recognized that it was impossible to live on $170 a month. The consequence of that rate was that people receiving that rate were homeless, they were engaging in prostitution to obtain food, and they were ill and hungry.

In the fall, the court will be hearing a claim that by setting rates so low, the province violated sections 7 and 15 of the Charter. Implicit in both those claims is the positive obligation. Therefore, in order to find for Louise Gosselin under section 7 in this case, what the court must recognize is that there is a duty on governments to provide a minimum level of economic assistance for people who cannot otherwise provide for themselves.

Essentially, the health care claim is in the same vein. The claim is that a right to health in a capitalist economy does not have a lot of value unless it includes a right to publicly-funded or subsidized health care services. I absolutely agree that the notion that the Charter does not impose Charter obligations was completely rejected in Eldridge and that it will be just a matter of time before the individual aspects of our welfare system are tested.

Dr. Martin: I would agree as well. I think section 7 does provide grounds for the right to health. The question then is: What are the parameters of that right, and is there state action that takes it away? I think section 15, in addition, provides an equal right to health and health care services, and will be the way in which you scrutinize whether there is discrimination in the allocation.

I would also agree that there is the power to impose remedies, although the courts are sometimes reluctant to find breaches or to find that legislation is not saved under section 1 in certain circumstances. However, there is no doubt that that power exists. It is a very theoretical discussion on positive rights or negative rights. If you look, for example, at the case that Senator Kirby posed about a prohibition against private health care, is that a burden on the individual because it prohibits access to services, or is it a positive right in the sense that the individual is asking the government to have full access to services? Therefore, it becomes a characterization game on positive and negative rights, and I think that we should be aware of that. There should not really be a substantive difference between whether you frame it as a positive or a negative right, or as a prohibition or an "underinclusion." Those are just different ways that people will argue about it from their own side.

The Chairman: I will come back for my final question, but I will tell you what it is because I want to use the exact words that Professor Martin just used. You said that both you and Professor Jackman agree that there is a right. That is step one. You then said that the question is, and your words were "is there state action which takes it away?" Therefore my question to you would basically be: Does the Canada Health Act, in effect - rather than explicitly - constitute an action which takes away that right in the light of services that are rationed? That is the question that I really want to come back to because that is fundamentally another way of stating the problem I posed to you at the beginning.

Senator Joyal: There are three points I would like to propose for comment to our expert witnesses. The first one is in relation to what the Chairman has mentioned about the obligation of the state to provide health care service. By the very specific five characters of the federal legislation, and especially the one that says "public," it seems to me that the net conclusion on that is that the government has occupied the whole field. In practical terms, the government has left no space for the private sector or for a private system in parallel. In other words, the net effect of the word "public," as one of the essential conditions of our system, puts on the government the whole of the obligation. A citizen is not free to say "If the government does not provide it, I am going to buy it with my own money in the private sector." The net effect is that the Canadian citizen, unique as you said in the world, well I would say maybe in the -

The Chairman: I said the industrialized world.

Senator Joyal: - in the industrialized world, is, in fact, captive to a situation that the government has created in the legislation. I do not say that it is wrong; I just says that the reality, from a reading of the legislation, is that. Therefore there are conclusions that we have to draw from this when we interpret section 7.

Senator Beaudoin: That is right.

Senator Joyal: Because the government itself in fact has put itself in the position of having to deliver the service because the government has occupied the whole of the field. Therefore the obligations of the government and the rights of the citizen have to be interpreted in that context. In my view, that situation has to be read, I should say, with the fact that the Canadian government has signed the international covenants. If you read the last judgment of the Supreme Court on Burns and Raffy, the one dealing with the issue of the right to life, the court said that because the federal government has signed the international covenant and has taken upon itself to promote life, it has an additional obligation in domestic legislation. In other words, not only has the government, for itself, occupied the whole field, but also the government internationally has said "We will be promoting the right to health." Therefore I would say that you must visualize the reality of the situation in which we live in Canada, which is in a way unique based on this, I should say, essential element.

The other point I want to put forward is the following: In a recent case - I say "recent" because it deals with government cuts. It was the Penetanguishene Parents case in Ontario. It is a case, if my memory serves me well, from 1997 of the Court of Appeal of Ontario. The parents of Penetanguishene were suing the Government of Ontario, and in particular the Attorney General of Ontario, for having cut from the budget of the Ministry of Education the allocation for building a school for French-speaking students. The Attorney General of Ontario replied that the Government of Ontario had inflicted cuts in education as they had done in transport, health and all the other departments. The court came to the conclusion that even though the budgetary exercise of the government is its sole discretion, nevertheless the government had some constitutional obligation to provide for services in both languages, and singularly in the case of the Ontario parents.

Can we not reason on those rights? If the federal government has, in fact, assumed and occupied the whole of the responsibility, how can governments manage their cuts to the services? It could certainly be sustained that the situation cannot be worse thereafter than it was before the cuts. In other words, the courts cannot impose on the government the whole of the budget, but they could say, "In that particular case you are not really assuming the responsibility that you have cut for yourself."

I think that this case needs to be reflected upon to see how the reasoning that the court has followed in a very clear case where the government refused to deliver the services on the basis of budget deficit and all of the speeches that we have been hearing in the last ten years or so, and specifically in Ontario - how the judgment or the reasoning that the court made in that case could serve as a parallel or as an indication of the obligations of the government. I would certainly think that under the present system of law in Canada: the Charter, the Canada Health Act, the international obligations that we have assumed, these have to be read as a whole to determine the rights of the citizens not to be put on a waiting list that would endanger and cause harm in a worst way than it was before the budgetary exercise. That does not mean that the court will say to the province or to the federal government: "Put in more money," or "There is a ceiling and you cannot go beyond that."

There is no doubt that, in the interpretation of the rights of citizens, I think that the context is very different when you see, for instance, that in other European country there are two parallel systems, or there is a part that is private and a large part public. To me, that has to be evaluated on different grounds. That is why I feel, Professors Jackman and Martin, those are test cases that should be conducted. At the very root of our system, I contend that we must be logical as legislators in what we are doing. If we put ourselves in a position where we are the sole determiners of the content of the right of a citizen, then we must assume the responsibility, and we cannot say, "That does not exist" or "It is not enforceable in court."

Dr. Martin: I have many thoughts on this matter. One is that I think we must look at whether or not it can be said, although not from a political perspective but from a legal perspective, that Parliament has occupied the whole field because of the mechanisms that they have used under the Canada Health Act. I think that is a big legal question.

It leads to other legal questions. For example, will the court consider the purpose of a law as well as its effect? The answer to that is yes. In ascertaining if there is a breach of section 7 or 15, the court will not only consider the framework or at the wording. They will say, "What effect does this have?" In doing that, the courts may look at whether or not the effect of the overall structure, given what it is and how it operates and works in practice, is an unconstitutional burden on an individual's rights. But where we still get into some difficulty is when we talk about the right to health - and this is where we can only talk, debate, explore, and where perhaps your committee can give thought to what the content of this right might be. Is it a right to health generally? Is it a right to health services? Is it a right to publicly-funded, entirely medically necessary health services? Is it a right to whatever health service you want, whether public, private or non-traditional? We may soon have a case where somebody wants to access a different type of medical service. Does the right to health care have a timeliness component? These are the crucial questions that Professor Jackman and I cannot answer because - and Senator Beaudoin is exactly right in this regard - we do not have clear guidelines from the court. However, so much depends on what that right to health is, although we all seem to agree that it exists. What we may disagree about is what content and contours does that right have?

Ms Jackman: I think Senator Joyal and Senator Kirby are both asking the same question, to a certain degree. One of you has posed it as by de facto excluding the private side, and the other has posed it as by occupying the field. Does the Canada Health Act violate or take away from an individual's right to health? I would have to answer, absolutely no, for two reasons: First of all, the Canada Health Act does not occupy the field or exclude the private side. By its very terms, what the Canada Health Act says is that it will not sanction a system whereby the public side subsidizes the private side. Thus the private side remains, due to this subsidy, nevertheless out of reach of middle or low-income Canadians, but cheaper for the rich who can pay for it. That is essentially what a parallel system does.

What the Canada Health Act says is that we have a single payer, and you either opt in or you opt out. If you want to benefit from the deep pockets of the state for your wages as a health care provider, you can only bill the state. If you want to provide care with no limit attached as to what you charge for it, you must simply opt out and you bill patients directly. What you cannot do is say to your patients that the public payer pays 75 per cent and you, the wealthier patient, tops it up by 25, or you, the desperate patient, tops it up by 25. That is what the Canada Health Act says, and by creating a regime that essentially puts us all in the same egalitarian box, I think from an international human rights perspective, the Canada Health Act brings Canada into compliance with its international obligations in relation to the right to health.

In the absence of the Canada Health Act, in the absence of a single-tier public system, one could argue that Canada was in violation of its international obligations in relation to the right to health, because as we see in the United States, they have a whole tier of people, economically disadvantaged people, who do not have access to health care services -

The Chairman: I must interrupt you to ask you supplementary questions, and my supplementary at this time has nothing to do with the United States. It has to do with the fact that, as Senator Joyal made in an observation, every European country, every major European country, certainly, has a parallel system. Thus I would infer from your statement that every European country is in violation of their international obligations. That is the consequence of what you said. I admit that I am not a lawyer, but I find that very difficult, if not impossible, to believe.

Ms Jackman: No, I think the point that I am attempting to make is that, in the absence of a publicly-funded health care system that ensures access without barriers in relation to ability to pay, you are not meeting your obligation. Then it becomes a matter of social science evidence, and here I would rely on, as I say, the economist, my friend Ted Marmor, who has demonstrated that a two-tier system is not as effective in ensuring access for low-income patients as a single-payer system. My concern is really from the perspective not simply of the generic patient but the patient who has trouble accessing equal services in a private system.

I think you are absolutely right, Senator Kirby. I probably overstated the case when I said that a parallel system would violate the international covenant, but the point I am trying to make is that, in the absence of a publicly-funded regime, you are clearly in violation of the Canada Health Act.

My perspective would be that the Canada Health Act does not take away rights; the Canada Health Act guarantees or provides rights, and actually reflects the government's obligation to provide health care services.

In terms of the analogy to the Penatanguishene case, what is interesting about that case is, as you know, Senator Joyal, that unlike most other provisions of the Charter, section 23 is, by its terms, a positive obligation. It imposes a positive obligation on the state to provide schooling, or access to education in a minority language.

Senator Joyal: There is no doubt.

Ms Jackman: Therefore, unlike section 7 where you have an ideological obstacle to convincing the court that this is a positive obligation, by its very text section 23 imposes positive obligations on the state. But I think what is interesting about the Penatanguishene case is the question of what is described in international human rights law as a deliberately retrogressive measure: that is to say, when you have provided benefits at a certain level, or you have undertaken a certain commitment, and then you start to ratchet things back. We have seen that, obviously, in the welfare context in Canada - and in Ontario quite glaringly, with actual cuts in rates.

However, we have also seen it in Ontario in the health care system, as well as in other provinces, and that is where you might be able to argue that when the state provides a publicly-funded system, and as you have pointed out, sets it up in such a way that there is an economic deterrence to private participants because they cannot bill the public system - they must either opt in or opt out - decision-making around rationing and cutbacks then become subject to review.

This argument, I think, will be seen in the Montfort case, where one of the arguments that is being made in that case is that by closing the French language hospital that serves Eastern Ontario, the claim is an equality rights claim; it is a violation of the rights of the francophone minority in Eastern Ontario to equal access to health care services. However, as in the Eldridge case, I think that case could have been brought under section 7, because what is really happening is that a certain set of potential patients had previously been identified, and then there was a ratcheting back on what was previously available. In my view, an argument is always easier under the Charter if the program already exists and then there are either irrational or discriminatory cuts, than if a plaintiff is making a claim ab initio that a service must be provided.

Senator Grafstein: There is, in my mind, a certain confusion about the difference between a constitutional right under the Constitution and a legislative right. I am trying to be a non-lawyer for a moment and then I will be a lawyer, just for the sake of definition. I remember having a discussion with Mr. Trudeau very early on in the constitutional debates about economic rights, and Mr. Trudeau wrote an article in 1955, I think, in the Canadian Bar Review entitled something like "Toward an Economic Bill of Rights." I then wrote an article in 1975 or thereabouts to sort of trump him on that, and we had a huge discussion and correspondence about his views and my views on that subject. But where we both agreed - or, at least, he pointed out to me that, "Grafstein, where do you think you find in the Charter the right to have a house?" I said that everybody is entitled to the right to have a house. He said "Where do you find that? We are not dealing with `economics rights.' What we are dealing with is legal protection, legal rights, political rights, separate and distinct from economic rights." I think that is an important point to keep in mind as we approach this subject, because it is a very dangerous area that we enter into if we confuse the question of political protection with economic entitlement.

Clearly, in my view, on a reading of the Canada Health Act, and Senator Kirby and I were involved in this politically from the time of the Liberal convention in 1966, but the defence of the Canada Health Act at that time was that it was not to be all-inclusive; it was to be insurance, in effect, to cover against disasters. We occupied the field in one sense that everybody had a legislative right to participate, but if one chose not to participate, the field was not occupied. Even the health act itself and the original health act was insurance against certain claims. It was not total occupation of every claim. For instance, in the field of drugs: Drugs are not covered.

Therefore I think it is important for us as parliamentarians to be very careful about trying to impose obligations and economic rights that detract from the supremacy of Parliament to make up its mind as to how it wants to allocate its economic resources. The more we allow the courts, quite frankly, to impose economic rights, the more we deteriorate the right and the supremacy of Parliament to be accountable to the taxpayer.

When we look at this subject, I say there is a very careful problem here. If the public is not getting the proper service, they have a right of appeal. They can go to their MPs, they can go to their politicians, they can throw them out. However to transform that right into an economic right, imposed by the Charter - and here I must say that I do not see how it is covered in section 7. I do not see an economic right imposed by section 7. I think your witnesses were very careful to say that there may be grounds, ultimately, for the courts to create such a right. The last thing I would want to do is to have the courts create for Parliament economic rights, because that deteriorates Parliament. We believe in the supremacy of Parliament, and the Charter has opened the door for the courts to interpret much more broadly what it means, but for us to relieve ourselves of the responsibility of making the tough economic decisions about how we allocate taxpayers' dollars because it imposes a constitutional duty, to my mind we are moving into very dangerous ground indeed.

Therefore I start off by saying that we are building law here that may not exist. Then to take the leap of faith and say, as my colleague has said, that an international convention imposes an economic duty on the federal government to allocate its tax resources in such a way that, in fact, it cannot be accountable is something else again.

Mr. Chairman, I thank you for drawing my attention to this discussion within this committee, because I am not a member of this committee. However, I come back to my point that it is very important that we really, carefully, segregate in our own minds the difference between what Parliament is responsible for and accountable for, and what the Constitution imposes. If we blur these responsibilities and all of a sudden say "By the way, let's have a case for the courts to decide how Parliament should allocate its dollars," it diminishes, I think, responsible government in a serious way.

I conclude, Mr. Chairman, by saying this: Having looked at this question, I do not think that there is a constitutional right to health care. I think that there is a legislative right to be treated fairly, but it is not a constitutional right or an economic constitutional obligation. I do not know where the Supreme Court of Canada would have the power to do that under the Constitution, saving, as somebody pointed out, with respect to a very definitive obligation that went to the heart of the constitutional settlement, which was to ensure that education would be available in both languages under certain circumstances. That is different.

The Chairman: Let me make just one comment which I think I made before Senator Joyal came in, but it will tie in with what he said. As I think I said at the beginning, I happen to agree that there is not an economic right, and I also agree that Parliament has the right to decide to spend its money where it wants to spend it. On that point, Senator Joyal and I are in slightly different camps, although we reach the same end point.

However, my concern was: Do they simultaneously have the right to deny me the right to then purchase the service? Thus the issue I was raising is not does government have the right to decide how it will spend its money, but if, in so doing, it restricts access to the service, does it then have the power to deny me the right to purchase the service, which is, in effect, what the Canada Health Act does, and I repeat, I understand that it does not do that explicitly, but that is the absolute effect of the Canada Health Act.

Senator Grafstein: But, Chairman, does it?

The Chairman: That is the absolute effect of what it does.

Senator Grafstein: Just on that narrow point, if I chose to set up a purely private health system -

The Chairman: Right, you can do that.

Senator Grafstein: I can do that.

The Chairman: But hear me out; I will come back to this debate, but let me make a comment. You are absolutely right, but that would be so totally uneconomic a scheme that the reality is that it will not happen, and therefore I would argue that the Canada Health Act, in effect, prohibits that, and indeed I would argue - and when you listen to the politicians of all parties, federal and provincial, they argue - that that is what the Canada Health Act does, or at least that is what they think it does.

Ms Jackman: Senator Grafstein, I think I might turn your question on its head, because you are concerned that, by recognizing social and economic rights under the Charter, we essentially take power and accountability away from democratically elected governments and transfer them to unaccountable, unelected courts. That is a common critique of the Charter, and in fact judges are very sensitive to that. Most social and economic rights claims that have been decided in the lower courts in the area of health and welfare have been lost because of that policy concern. In fact, the courts rarely even get into a principal, doctrinal analysis of the claim. They simply say, "We should not be doing this," or "We cannot do this."

What is the impact of this interpretation? Essentially, to suggest that all the Constitution does is to say to the state, "You cannot take something away from someone," or "You do not have the obligation to give something to someone," we end up with a constitutional regime that is fundamentally discriminatory towards the poor, because we then have a regime that protects people who have something both from having the state take it away and from being forced to redistribute, and those who have nothing are left without rights.

In the context of health and welfare, it becomes particularly obvious. Senator Kirby's claim, if I understand it correctly, is that you would have a Charter that does not oblige the state to provide health care, but prevents the state from regulating private providers out of the market, which is essentially the worst possible scenario for poor patients because they do not have a right to demand publicly-funded services, but they cannot complain when the state essentially subsidizes private providers.

In terms of subjecting the health care system to Charter scrutiny, what is the problem with that? I would like to use a case almost anecdotally, the Fernandez case, which was a case decided in the Court of Appeal in Manitoba, where Eric Fernandez was disabled, and essentially he needed a respirator and attendant care for 16 hours a day. His girlfriend left him so he was basically stuck. He went to his welfare worker and he said, "I would like my welfare benefits increased by $600 a month so that I can hire a private home care provider and stay in my apartment." The welfare worker said "No. The welfare rate in Manitoba is $400, everybody gets $400. We cannot give you an extra 600." That got to the Court of Appeal, and what the Court of Appeal said was that "Section 7 does not protect economic rights, and the answer is no." What was the effect of this decision, essentially? The Ministry of Social Welfare saved $600 a month, but the Ministry of Health ended up paying $1,500 a day to keep this man in the municipal ward of the Winnipeg Hospital because he could not go home.

What would the Charter have done to that claim if it had been addressed in the way I am proposing? First of all, Eric Fernandez would have succeeded in his claim that the state has a duty to provide him with a minimum of welfare and health services. He could only have succeeded in that claim if he could have proved that when the state deprived him of that health care service or that welfare income, it was irrational or discriminatory. That is the section 7 and 15 standard. Furthermore, the state would have had a second kick at the can. The Government of Manitoba could have argued that it was justified in not giving this man the extra $600 a month. Once again, what would Charter scrutiny have done? Essentially, it would have permitted the court to ask: "Was this a legitimate objective? You were trying to save money; that is a legitimate objective to want to manage your welfare and health system in a way that is economically sound, that will not bankrupt the state. But were the means you adopted in this case rational?" Absolutely not. A great deal of the decision-making in the health care system is highly irrational. Fernandez is a glaring example: save 600 bucks a month, spend $1,500 a day. However, a great deal of the decision-making in the health care system is like that.

I was counsel for one of the intervenors in Eldridge. The plaintiff in that case, Mrs. Eldridge, who basically delivered twins by caesarean section, did not have the ability to communicate with the nurses and physicians. The kids were whipped away. She had no idea if they were alive or dead. One of the reasons that we won that case is that we said to the Ministry of Health, "You have told this couple that you have no obligation to pay for interpretation services." What the Attorney General of British Columbia argued, and the British Columbia Court of Appeal accepted, is that it would bankrupt the health care system if judges started dabbling in this area. In other words, "We are not institutionally competent to do it, and it is institutionally, democratically illegitimate for us to become involved in this area." What we said in court, with the rigor of legal analysis, was: "Do you know whether you are saving money when you do not spend that $150,000 on interpretation services, or do people get sicker because they cannot communicate with their doctor, and need to go back three or four times because the first time they were not able to communicate? You do not even know if you are wasting money to save that $150,000." A lot of the decision-making in the health care system is irrational in this way.

Since the Royal Commission on Reproductive Technologies, the "experts" have been advocating for results-oriented decision-making in the health care system, but it is not happening because of all kinds of institutional constraints, particularly around the way physicians are paid. One of the advantages of subjecting this matter to Charter scrutiny is that you have a decision-making process where the government cannot simply claim, "We are doing the right thing. We are saving money. This would bankrupt the state if you dabbled. You must prove it." Sometimes the state will prove that its decision-making is in the public interest and economically rational. In other cases - and I have to say that in most of the cases in which I have been involved as legal counsel for disadvantaged groups, the decision-making that we are challenging is not only discriminatory but it is irrational. We only succeed when we can prove that to the court, and the court overcomes its innate reluctance to tamper in this area, because they are horribly conservative and they do not want to go anywhere near it. There are very few cases where Charter claims have succeeded, but where those claims have succeeded it is because the decision that the state is defending is so profoundly wrong, and false economy.

Dr. Martin: I will be very brief, Senator Grafstein. The first point I will make is that a lot depends on how rights are characterized, as to whether or not it is an economic right or a right that really is tied to a person's inviolability to their right to life, to their security of the person. Is being on a waiting list an impairment of your psychological well-being? Does it jeopardize your health? A lot of that discussion involves the argument: Do you say it is an economic right because it involves money, or does the money represent something that is much more fundamental and much more protected by the Charter?

The second point I will make is that we should not confuse economic rights and the costs of protecting any Charter right. For example, one of the biggest decisions under the Canadian Charter of Rights and Freedoms was that an accused in a criminal trial gets full disclosure of the Crown's case. That is not an economic right; that is a fundamental, legal right that is protected. But the costs that come from a recognition of that right are - and were, and continue to be - immense. That was my second point.

My third point relates to the relationship between Parliament and the courts. I think it is important to remember that Parliament is not outside the Charter, and that the courts are the enforcers of the Charter. That is only one vision of the relationship. I think there is another that is equally important and that is, as parliamentarians, your obligation is to review the content of Charter rights so that when Parliament enacts or engages in state action, it is doing so in a manner that respects the rights and obligations in the Charter. In fact, Parliament should be in the role of facilitator of rights, and not rely only on the court to be the guardian of them.

Senator Graham: I enter into this discussion as a non-lawyer with some trepidation, Mr. Chairman, so my question or questions will be very simple.

Am I correct, Professor Jackman, in saying that in your conclusion you said that the Canada Health Act is defensible?

Ms Jackman: Totally.

Senator Graham: Correct. Thank you.

Professor Martin, at the outset, you expressed surprise that we were this far ahead in our study without having clarified this issue. Am I correct in saying that?

Dr. Martin: Well, this far along without raising constitutional issues, yes.

Senator Graham: That seemed to imply that the act could be challenged successfully, in your mind.

Dr. Martin: No, that was not where I was coming from at all. First of all, I was trying to make the discussion a little bit light-hearted, but as everyone knows who does constitutional law, if it is Canadian, you always start with a question: Is it federal or provincial? Now that we have the Charter, we say now: Is it constitutional? Therefore I do not necessarily think that the Canada Health Act is subject to challenge, if what you want is for me to cut to the chase.

Senator Graham: That is what I wanted, to cut right to the bone, and I am glad you said that it was a rather light-hearted observation. However, you did suggest that if there was a challenge, the first challenge would be against a provincial jurisdiction rather than the federal government; is that correct?

Dr. Martin: That is my prediction, because if I am trying to make Senator Kirby's case, if Senator Kirby hires me as a lawyer to make that case, I have to say to myself, "Whom would I sue, and what would I claim?" In answer to the question of "Whom would I sue?" question, I am not sure that the federal government under the Canada Health Act is a good prospect.

Senator Graham: Is that also because the provincial governments or jurisdictions are the prime deliverers of the system and that they have the ability to set standards?

Dr. Martin: That is exactly right. While I know that the Canada Health Act is not an agreement, per se, it is a very peculiar form of legislation. It is not the granting to a citizen of a right or a benefit, such as the Canada Pension Plan or Employment Insurance. The subject of the Canada Health Act is to set out terms and conditions. Yes, in law it is statute, but it is to set out the terms and conditions under which there will be a transfer payment between the federal government and the provincial legislatures. That is a very different kind of process. The social assistance programs have been subject to some kind of Charter challenge in the past, but I am just saying that I would not like to give you an opinion with the five days' notice I have had to appear before you. It is a difficult question.

Senator Beaudoin: I would like to go back to one point that you raised, the dialogue between the courts and Parliament. To me, it is fundamental, especially in a field like this one, health. I agree with many of those who said that the courts are very reluctant to enter the field of economy. It is not the role of the courts, of the law to say, "That system that you have in place is no good for this and that reason." They will never do that. However, they are accustomed to the definition of legal, individual rights. They are accustomed to making decisions on fundamental rights, freedom, et cetera, and they have done tremendous work in that area.

However, I want to come back to the positive obligation. I do not know whether it is a theory, but I think there is such a thing as a positive obligation. The court will use it when they see clearly that the rights and freedoms of individuals are in danger; they will intervene. Therefore, I see in the future a great dialogue between the courts and the Parliament and the legislative assemblies of the provinces over health because it is so fundamental. I will not say that it is not a right. The right to health, in my opinion, may be implicit in the right to life. Nobody has raised that yet, but it is not impossible. Read section 7, "The right to life..." Of course, it needs a definition; it needs a study done on this, but the right to health is certainly, in my opinion, implicit in section 7.

However, the big debate that we have now, and you raised it right from the beginning, Mr. Chairman, is the public system versus the private system. This is a field that usually does not please the courts too much because if there is something that should be decided by the legislative branch of the state, it is our economic system, obviously. The courts are there to rule on our rights, freedom, fundamental rights, democratic rights, et cetera, and they are very good at that, but the system that we adopt in a country and in a great democracy is the affair of the legislative branch of the state. Therefore, while they may intervene, and they may perhaps say at the end, "The parallel system or the private system is not unconstitutional; it is a question of choice. You may have the two systems." The courts may come to that conclusion. However, to expect a decision of the courts on economic rights, I think, is not the right direction to go, because ultimately this will be left to the elected people in the country.

Nevertheless, if there is something that is really discretionary, and it is discriminatory, then they will intervene. I see that in the Eldridge case, they did intervene, and they imposed an obligation on the hospital because the hospital was performing governmental services, and the governments are bound by the Charter. They are bound by section 7; they are bound by section 15. They may escape an obligation if they are in a position to say, under section 1, that it is reasonable in a democratic society. The same debate will continue. I say that there is no doubt in the world that there will be a case that will be raised exactly on the question that is before us today.

The Chairman: Any comment? Professor Jackman? Professor Martin?

Ms Jackman: No.

Dr. Martin: No.

Senator Grafstein: I think it is important for all of us as senators to keep reminding ourselves about the function of Parliament and the role of the courts. It is almost a daily struggle now around every piece of legislation. We are hearing problems in each committee.If one is interested in following the debate this area, it is almost a daily struggle in time to do the proper research of the role of each of them.

But again, to try to give it an overview, I remember a huge debate when the Constitution was being developed as to whether or not we should include the primary economic right, and that was property rights, and the answer to that was no.

Senator Morin: It was set aside.

Senator Grafstein: No, the answer was "no," and the reason for that is that it then raised the whole hierarchy of economic rights and responsibilities that we wanted to stay away from, for obvious reasons, and to leave Parliament free to deal with those issues. That is why it was excluded, and people sometimes forget that.

The other thing that I wanted to say, Chairman, is a comment, and that is that what I find very intellectually confusing - and I can say this because he is now a former judge - is the notion of former Chief Justice Lamer that there is a democratic dialogue between the courts and Parliament. He said that. By the way, Senator Nolin referred to that notion in his comments on the Judges Act and, quite frankly, I was not here for third reading and I did not get a chance to respond, but I will in time. However, to me, that is absolute nonsense. The democratic dialogue is between Parliament and its electors; not between the courts and Parliament. The democratic dialogue is between the electors and Parliament, and the intellectual debate is the reach of Parliament, of the supremacy of Parliament, and the role of the courts. It is not a democratic dialogue. I think that is a misnomer, and I say that in the knowledge that there is currently a very interesting book on the marked called The Charter Revolution and the Court Party. However, I have been trying to find out historically how we have drifted away from the very narrow and perhaps some might say conservative view, although I do not agree that it is conservative. I think it was a very carefully crafted delineation in the Charter about what was, in effect, a right that should be protected and what, in fact, was to be left to the democratic dialogue between the taxpayer and Parliament.

Just a final comment to out witness Martha Jackman, when she talks about irrationality, yes, I agree with that. I am in violent agreement with irrational, unfair, miserable - of course. That is the democratic dialogue between the taxpayer, the voter and Parliament, to make Parliament be more rational. But to use that notion and move it over and to try to create economic rights that do not exist, to my mind is failing.We are undermining the notion of the supremacy of Parliament.

Senator Joyal: I am almost tempted to follow up with Senator Grafstein on the issue of dialogue raised by our colleague Senator Beaudoin.

Senator Grafstein: This is an internal debate that goes on. This is an internal Senate debate.

Senator Joyal: Yes, that is, more or less, our own debate, and I would like to register my greatest reserve to the use of that concept for others reasons complementary to the one that Senator Grafstein has mentioned, but we will have that opportunity.

I would like to come back on the very issue of the question asked by our colleague Senator Graham. If I had to sue, it would be a provincial government, for very obvious reasons: the services are delivered by the provinces. There is not a single federal hospital, so that is clear. But on the other hand -

Senator Grafstein: There are the veterans' hospitals that are federal institutions.

Senator Joyal: Yes, but they are transferred -

Senator Graham: They do not exist anymore.

Senator Joyal: They do not exist anymore.

Senator Grafstein: Hospitals that provide services, true.

Senator Joyal: Therefore, we are not the deliverer of services. I think we can agree on that.

The other thing is that I would certainly "mettre en cause" the federal government if I were questioning the fundamentals of the system because the federal government, as the Chairman has properly said, has, in fact, created the system, as you said, against the will of many provinces at the beginning, the proof being that not all the provinces joined at the same time.

However there is another element that I think is much more important in the overall understanding, and that is that not only is the system a public one, but we have socialized medicine in such a way that we have put each citizen on an equal footing, to the point where money is no more a factor, a determining factor, and you will remember all of the speeches that have been made about that. When you enter a hospital in Canada, we do not ask for your credit card; when you enter a hospital in the United States, they ask for your credit card. You all know that. We have heard it hundreds of times, and all kinds of other things in Canada.

The Chairman: Many of us have actually given those speeches.

Senator Joyal: Yes, yes, exactly. So when we are -

Senator Graham: We check your pulse before your credit card.

Senator Joyal: When we are defining the essentials of the system and the legal consequences for the very point that you have raised, that we do not want to create two set of citizens in relation to medical services, we do not want to have the big guy and the little guy, or the socially-assisted person versus the billionaire. They are all equal in terms of delivery of services. This has, to me, a very profound impact on the definition of the responsibility of the state and the expectation, not to put on it the rights definition, or the formal rights definition, but the expectation of the citizens in a country whereby, at the end of the line, a person has to have the capacity of recourse if his life is in danger. In other words, we have established a public system, we have occupied a whole field or so, and we have said "The money is no object." Therefore we have removed the money aspect of it, the notion of buying the services or the freedom of buying the services on the basis of being rich or poor. That is very essential to the whole discussion. But then we say to the person, "I am sorry if you have had to wait two years, and you cannot get your heart bypass surgery in time to save your life. We are sorry, we are not responsible, but we have decided to cut or not supply the hospital with the proper instruments and the proper people."

This element, the "socialization" of the system has a very important bearing on the definition of economic rights, because the very nature of economic rights is that it is something you can buy. When you remove that notion of the system, you create a different context than what we have been appreciating before in relation to the other social rights.

Dr. Martin: My final comment there is that we have put together in our conversations, I think, issues that lawyers and courts would view separately, and that is the issue of whether, number one, it is a breach of some Charter right to create a system in which a private option of paying for services is more difficult or impossible to access, whichever way you want to talk about it. That, I think, is a harder case.

The second issue, though, is what do you do when budget cutbacks to the public side have so jeopardized the health care system that they may create waiting lists and limitations on the public services that are provided? Those, to me, are very separate issues. As a lawyer, I would approach them very differently and I would expect to have a better hearing on number two than I would on number one.

Ms Jackman: I will be very brief, but since you are all talking about this aspect, I will add my two bits. With respect to the critique of judicial review on Charter grounds as being anti-democratic or removing proper power from Parliament, I think it is very important not to conflate democracy with our current, executive-dominated form of Parliamentary democracy. Senator Joyal, you can talk about that a lot more than I can. In any event, such Charter scrutiny is surely relevant in a Parliamentary democracy where you have delegations, and sub-delgations, and sub-sub-delegations, with unaccountability for a huge amount of decision-making, and where when you arrive in court you hear, "Parliamentary supremacy, you cannot review the rationality and discriminatory nature of this decision-making." Again, one of the advantages of Charter scrutiny in these areas of health and welfare, where you have so much delegated and unaccountable decision-making, is that once again it imposes some accountability and rigor on the decision-making.

It is regrettable that, in our parliamentary democracy, parliamentarians are not accountable and we are forced to have recourse to other mechanisms, but one of my problems with Martin and Connaught on this aspect is that we defend all of our decision-making under the mantle of democracy when a great deal of what rights do is enhance the democratic decision-making process, because if people are healthy and fed, and they are not homeless, they can participate in our democracy. If they are none of those things, they cannot.

The Chairman: I will give the last word to the one doctor in our midst, Senator Morin.

Senator Morin: I would just like to raise one point that Senator Joyal raised earlier. The state did not cover the whole field. This is precisely the point of the exercise that this committee has been conducting here for the last two months. What I mean is that, for example, pharmaceuticals are not covered. Canadians are not equal. Some Canadians are deprived of life-saving drugs right now. What the state has done is it has covered only two fields which are not necessarily the most important. In other words, hospital care may be considered less important than drugs. I think that is an issue. There is discrimination there based on resources right now. The state has not covered the whole field as it has in other countries such as Sweden, for example.

The Chairman: May I thank both of you for coming. I realize, Professor Martin, that we took you about 30 minutes past when we said you could leave. I hope you have enjoyed it as much as we have.

Dr. Martin: I certainly have.

The Chairman: It is interesting for you to have a chance to talk to policy makers, some of whom are lawyers, some of whom are not, but it is a different perspective, certainly, I am sure you will agree.

Thank you, Professor Jackman, for taking the time to attend. We are very grateful.

The committee adjourned.

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