In a hard-hitting speech in Toronto yesterday, (Roy Romanow) accused the four-judge majority in the Chaoulli case — which many see as opening the door to two-tier health care — of meddling in social policy decisions better left to elected politicians.
"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 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.
There can be little doubt that the Supreme Court went through large amounts of evidence as well, but toward a much more narrow end, examining only the position of one person within a complex system rather than the underpinnings of that system itself. Hopefully a future look at health care, on Charter grounds and with both a full SCC panel and a more balanced set of intervener submissions, will lead to a result that better accounts for the society-wide impact. And if not, then Romanow and his report offer forceful arguments as to why saving health care is one of the few areas where use of the notwithstanding clause could be entirely justified.