Romanow Fears `End Of Medicare'

"The net legal effect of the Chaoulli decision is that, in grappling with medicare, the court has ventured beyond constitutional and legal principles and into complex social policy, an area that has traditionally been in the domain of elected lawmakers," said Romanow, who was speaking at a legal forum on the implications of the June ruling, organized by the University of Toronto's faculty of law. The court's "somewhat startling" decision showed a "remarkable" level of judicial activism, he said. Romanow questioned whether some judges in the majority were looking for a "mandate" to venture into the world of politics. "Seems so, and they did it in such a thunderous way," he said. By allowing privileged Canadians to buy health care, the court has used the Charter, and in particular its guarantees of life, liberty and security of the person, to protect the economic rights of citizens, something that was never intended when the Charter was drawn up nearly 25 years ago, Romanow said. He helped draft a 1981 compromise agreement that led to the Charter's enactment and the patriation of the Constitution. The most charitable interpretation of the decision is that it was an "aberration," said Romanow, who said he hopes the court will "recalibrate" its approach in future cases. If not, it will "radically alter Canada" and could lead to the dismantling of other social programs, he warned. "Without sounding too apocalyptic about it, I think it could sound the end of medicare as we know it and (deliver) a very serious body blow to Canada as we know it," he told reporters later. Last month, without providing reasons, the court suspended its judgment until June, 2006. Romanow said he finds it difficult to be so harshly critical of the court but said there are larger issues at stake. The ruling flies in the face of what Canadians told him they want in their health-care system, he said. "The implied conclusion that timely access to health-care services will be improved with the establishment of a parallel private scheme flies in the face of all the evidence with which I grappled for 18 months as a royal commissioner," he said. Until yesterday, Romanow, now a public policy expert at two Canadian universities, has said very little publicly about the decision, which found in favour of Jacques Chaoulli, a physician who wants to operate a private hospital, and George Zeliotis, a patient who was left on a waiting list for a hip operation. Four of the court's judges said there was ample evidence that some Canadians have suffered grave consequences while on waiting lists and the public health system's failure to deliver medical care in a timely, reliable way had jeopardized their liberty, health and psychological well-being. Justice Marie Deschamps, in the majority decision, said that banning private health-care options was a violation of the Quebec Charter. The remaining six judges were evenly split on whether such a ban also violated the Canadian Charter of Rights and Freedoms. As a result, the decision only applies in Quebec. But Romanow said yesterday the "clear implication" is that it's a violation of the Canadian Charter, as well. "The court basically said that the prohibition of private health insurance enacted by a democratically elected provincial government was bad public policy," he said. While the court based its decision on the evidence it had before it, that evidence wasn't from the millions of Canadians who receive "great health care" and continue to support it, despite their concerns about the future of the system, he said. Instead, it was from the Canadian Medical Association, individual doctors unhappy with the constraints of a publicly funded system and senators who were oddly granted intervenor status, Romanow said. Although privately funded health care would be a radical step for Canada, Allan Hutchinson, a professor at Osgoode Hall Law School in Toronto, challenged Romanow's claim that the Chaoulli decision is an "aberration." The Supreme Court has used the Charter repeatedly to uphold conservative principles, he said. Despite all the talk by Romanow and his political counterparts in the early 1980s of it being a "people's Charter," the court has used it to protect tobacco companies and deny treatment to autistic children, Hutchinson said. "It's turned out to be a very strange group of people who have benefited by the Charter," he added. "There's nothing new about the Chaoulli decision. Nothing new. This is a case where all the conservative chickens have come home to roost." http://www.thestar.com/NASApp/cs/ContentServer?pagename=thestar/Layout/Article_PrintFriendly&c=Article&cid=1126907414361&call_pageid=968332188492 [Proofreader's note: this article was edited for spelling and typos on September 18, 2005]

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