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The Supreme Court of Canada could have hardly been more divided in its landmark decision 18 years ago that opened the door to private health care in Quebec – but kept it shut in the rest of Canada.

In the 2005 judgment for Chaoulli v. Quebec, three justices (including Chief Justice Beverley McLachlin) found that Quebec’s prohibition of private health care and insurance violated the Canadian Charter of Rights and Freedoms’ right to security of the person. That violation could not be justified under section 1 of the Charter, they further found.

Three other justices disagreed, writing not only that there was no rights violation, but also that the question was a social policy that should be decided by politicians, not the courts.

A seventh justice (who could have broken that 3-3 tie) ruled that Quebec’s ban on private health care violated the province’s charter but declined to go further to determine if the ban also violated the Canadian charter. So private health care became legal in Quebec, but only in Quebec.

Fifteen years later, in 2020, a B.C. judge ruled in Cambie Surgeries Corporation v. British Columbia that the province’s ban on private care was not a constitutional violation. Last year, a B.C. appeals court upheld the ruling, but one of the three judges disagreed in part. That judge found that the ban did violate the right to security of the person, but that such a violation was justifiable under section 1.

Looking at this tangle, the Supreme Court said: Nah, we’re good. The court had an opportunity last week to finally resolve those contradictions, but inexplicably chose not to.

On Thursday, the court announced that it would not grant Cambie’s application for leave to appeal. Unless the applicants take the extraordinary step of asking for a reconsideration of that decision, their legal battle is done.

The court, as is its practice, did not say why it declined to hear the Cambie case. Generally speaking, however, the court declines cases that don’t deal with significant issues, aren’t national in scope or deal with questions of settled law.

It surely could not have been because the issue of public and private health care is not important enough. It is of direct concern to all Canadians. And the issue has become more pressing in the two decades since the Chaoulli decision, as waiting lists have grown. Quite literally, the question is a matter of life and death.

The debate over health care, and whether private care should be (mostly) prohibited is a live issue across the country. There can be no doubt that it is a national issue, and one of deep concern.

As for settled law, that could scarcely be less the case. A split Supreme Court has yet to render a decisive verdict for most of the country. That split is echoed in the B.C. appeals decision, where the dissenting judge crisply and efficiently dismantled the reasoning of the majority. And most important, there remains one set of rules for Quebec, and one for the rest of the country.

There is the possibility of deference – that the Supreme Court did not believe that it would be proper to rule on a matter best left to the political arena, particularly for a complex policy such as health care. Indeed, that was the view of three justices in Chaoulli, who wrote, “The proper forum to determine the social policy of Quebec in this matter is the National Assembly.”

Yet the highest court in the land has not hesitated to intervene on other hot political issues: supervised drug-injection sites, state-assisted death, and mandatory minimum sentences, to name a few. In those instances, the Supreme Court did not shy away from its duty to provide legal clarity on complex issues.

The Court’s own words in Chaoulli give the sharpest rebuttal to any notion of deference: “The courts have a duty to rise above political debate. When, as in the case at bar, the courts are given the tools they need to make a decision, they should not hesitate to assume their responsibilities. Deference cannot lead the judicial branch to abdicate its role in favour of the legislative branch or the executive branch.”

We concur. The Supreme Court should fulfill its duty at the next opportunity, whether that is through an application for reconsideration, a new plaintiff, or a reference case from the federal government.

Editor’s note: The British Columbia Court of Appeal upheld the trial judge’s ruling in Cambie Surgeries Corporation v. British Columbia that the province’s ban on private care was not a constitutional violation. One of three appeal judges found that the province’s ban was a violation of the right to security of the person, but that it was justifiable under section 1 of the Charter. An earlier version of this article included incorrect information.

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