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OPINION: Canadians are the biggest losers in the Supreme Court’s latest health care decision

It was 18 years ago that the Supreme Court of Canada ruled that waitlists for health care in Quebec were an affront to a patient’s constitutional rights – opening the door to private health insurance in the province.

Which is why the court’s decision last week not to hear an appeal of a B.C. Court ruling, which bans extra-billing and private insurance, is so puzzling. And infuriating. Because not much has changed in the nearly two-decade-long span since its landmark decision on this matter. In fact, it could be argued, the situation has deteriorated even further, with the crisis in our health care system worse than ever.

Only in Canada can the top court in the land give Quebeckers special rights and privileges when it comes to their health care needs and deny those same rights and privileges to B.C. – and, by extension, other provinces as well.

In June, 2005, the Supreme Court overturned a Quebec law that prohibited people from buying private health insurance for services that were covered by the public health care system. In a 4-3 decision, the court said the monopoly that the state exerted over medical services wasn’t justified.

“This virtual monopoly, on the evidence, results in delays in treatment that adversely affect the citizen’s security of person,” the court ruled then. “Where a law adversely affects life, liberty or security of the person, it must conform to the principles of fundamental justice. This law, in our view, fails to do so.”

What has changed since then that would persuade the court not to hear an appeal of effectively the same law in a different province?

While many are hailing the court’s B.C. decision, which effectively brings to a close Dr. Brian Day’s effort to give Canadians quicker access to health care services via private clinics, I don’t count myself among them. If Canada had a wonderfully run system under its medicare program, I might be persuaded otherwise. But we don’t. In fact, we have one of the least efficient health care systems on the planet.

Waitlists are worse than ever. Yet, the provinces have more money than they’ve ever had to fix the problems.

Critics of any type of private health care always trot out the same bogus bogeyman: the United States. If we allow private health insurance in Canada, we will have people dying in the streets like they do in the U.S. because they can’t afford health insurance. This odious comparison conveniently ignores the fact there are literally dozens and dozens of other examples of countries that have private health insurance options and also some of the best health outcomes in the world.

In the 2005 Chaoulli v. Quebec ruling, the Supreme Court wrote in its majority judgment: “In summary, the evidence on the experience of other Western democracies refutes the government’s theoretical contention that a prohibition on private insurance is linked to maintaining quality public health care.”

Again, look at countries that sit in the top 15 of the best health care systems in the world – private insurance is offered in all of them. South Korea, Denmark, Austria, Spain, Belgium, Australia, France, Great Britain. None have perfect systems. But none resembles the U.S. either, and they all outperform Canada and spend less money doing it.

What makes the court’s recent decision even more puzzling is the fact it ignores another on-the-ground reality: we already have two-tier health care in Canada, despite what the politicians may say. There are Canadians with good jobs that have extended health benefits including paid prescriptions, of which millions of their fellow citizens can only dream. Same with dental care.

Certain groups have federal authority to get treated in private clinics, including people with injuries covered by worker compensation plans; armed services personnel; people of Indigenous ancestry; and certain federal employees, including Supreme Court justices.

Also, as my colleague André Picard pointed out in a column this week, private, for-profit health care clinics are booming in Canada. And in an almost cruel twist, the B.C. law Dr. Day was challenging only applies to people living in the province. In other words, people can come from out of province and get treated in his private clinic. You just can’t be a British Columbian.

Yes, our health care system is the envy of the world.

The decision ends Dr. Day’s 14-year fight for the rights of people to get treated when they want to get treated. In its ruling, the court has sided with the B.C. government (and effectively the other provinces as well) in its position that a person must sit on a waitlist regardless of the seriousness of their illness.



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