The Supreme Court of Canada decision Chaoulli et al v. Attorney General of Quebec et al came down on June 9, 2005, holding that private health care insurance is constitutional. were unconstitutional (on the basis of inconsistency with s. 1 of the Quebec Charter of Human Rights and Freedoms). Seven of the nine judges of the Supreme Court sat on the appeal. To say it was a split decision would be an understatement:
i.e. of the 7 judges sitting, 5 wrote judgments - a polycentric twist on 'all for one and one for all'.
In the early '90's I attended a joint U.S. Supreme Court and S.C.C. conference at Duke University at which various judges from both Supreme Courts attended, including Chief Justice Rehnquist and Chief Justice Lamer. In a Q&A session, Chief Justice Rehnquist was asked why there were so many disparate decisions coming down from his Court (in terms of multiplicity of opinions within a single appeal) and what could be done to encourage collegiality and consensus amongst the judges. Chief Justice Rehnquist replied that he always tried to do that, but noted that recently, when he visited the chambers of a judge who had written a draft concurring opinion that he felt added little to the majority judgment, he asked that judicial colleague to consult with the majority judge who was writing, and see if some revisions could be made to the former so that the additional (therefore unnecessary) reasons could be withdrawn. The judge (unnamed) that Chief Justice Rehnquist spoke to replied: "Says who?" All opinions were published.
Some welcomed the S.C.C. Chaoulli decision, and some did not. Some of the rest of us (me included) spent some time trying to figure the judgment out. In the middle of this figuring-out-context, I got the following email from David Goar of Gilbraltar Law Group, Kamloops, B.C., reproduced below with David's permission:
"Thirty years ago, as I began my legal education, the 'case study method' was in vogue at Canadian law schools. Those of us exposed to this method will recall the hundreds, if not thousands, of misspent hours poring over case reports in an effort to identify and distill a 'ratio' or set of commonly applicable legal principles. Judgments of the Supreme Court of Canada proved particularly frustrating owing to the insistence of all Justices, representing both the majority and the dissenting positions, upon writing their own decisions. The resulting cacophony of competing voices often rendered the distillation of a commonly applicable set of legal principles impossible. I recall wondering, in my frustration, why these esteemed legal minds could not work together, as a court, to produce a judgment of the court that had meaning and relevance. I wondered also if the insistence upon expressing one's individual point of view didn't reflect a triumph of ego over intellect. In the years that followed, I tucked these questions away as the naïve musings of an uneducated legal mind.
Yesterday, as I reviewed the Court's decision in Chaoulli et al v. Attorney General of Quebec et al, these 'first impressions' came flooding back to mind. In hindsight, I don't think my first impressions, all those years ago, were wrong. On the central issue respecting whether the prohibitions provided for in section 15 of the Health Insurance Act and section 11 of the Hospital Insurance Act violated a citizen's rights under the Canadian Charter of Rights and Freedom, we are unable to find any substantive answer. One cannot help but speculate that this failure to render a decision was deliberate. With three Justices inclining either way and the other abstaining from expressing an opinion, the result seems too contrived to be happenstance.
Are we, as citizens, well served by a court of last resort that either neglects its responsibility to render a decision or expresses its decision with so many discordant voices that it lacks all clarity and meaning? The obvious answer, and one that has been adopted by superior appeal courts of other nations, would involve the appointment of one Justice to write the majority opinion. Other Justices, wishing to ensure their own individual viewpoints are expressed, could cooperate in the drafting of a mutually satisfactory judgment. No voice need be silenced.
I will make my opinion respecting the central issue raised in this case clear. If expressed as it should be:
'Does legislation, prohibiting a citizen from procuring otherwise lawful medical services needed to preserve the quality or fact of existence in a timely manner, violate that citizen's right to life, liberty and security of the person?'
The answer becomes obvious. What greater violation could be imagined?
In an effort to be politically correct, we can lose sight of the need to be correct. True intelligence yearns for simplicity and only accommodates complexity if it is unavoidable. Only a consideration which results from allowing the 'tail to wag the dog' can produce any other conclusion. By anticipating adverse practical consequences a decision may have, we avoid the self-evident and logically unavoidable conclusion. Proper judicial treatment demands that the correct legal decision first be made and the practical consequences then be dealt with. The second of these functions may not be within the ambit of the appropriate jurisdiction of the Court. It is the responsibility of Parliament.
Is it too much for Canadian citizens to ask for a Supreme Court that actually plays hockey as a team instead of everyone going for the slapshot?"
ADDENDUM (by Eugene): I was retained in the mid-'90's on a 'watching brief' by a non-tobacco federally-regulated client when the first big tobacco case was being litigated in the Supreme Court of Canada (RJR-MacDonald Inc. v. Canada (Attorney General),  3 S.C.R. 199). The client asked me to tell them what it said. All nine judges of the Court sat, and seven out of nine wrote:
Lest one think scanning the headnote would give you the skinny on what's going on, the headnote itself is just over 22 pages, the headings alone which say:
The RJR-MacDonald case was a Charter case with a 2-phase analysis: infringement or not of a 'substantive' Charter section, and depending on that answer, was it saved or not (i.e. a violation or not) by s. 1. If you're still with me so far (if so I'll send you a Lang Michener t-shirt or a frozen haggis), the judges in majority on the infringement phase versus the judges in dissent on that issue are different from the judges in majority on the violation phase as compared with the judges in dissent on that issue (i.e. who's in majority and who's in dissent change by name and also change by number, in the phase I section (infringement) compared to the phase II section (violation, i.e. whether saved under s. 1 or not)). Anyways, I keep reading and re-reading the decision, and after scratching my head a lot (that's why I'm now half-bald), reach for two pieces of graph paper from one of my kids' satchels (I scratched myself so much I had to go home), taped the two pieces of graph paper together: I then turned the two pieces of paper on their side, and graphed out four axes: #1. criminal law power, #2. infringement, #3. violation (s. 1), #4. the particular holding of each judge. Internally, within the four axes of the graph, I plotted individually where each judge stood on each issue according to the interrelationship of the four axes, so that I could see the mathematical (and more importantly, jurisprudential) intersections.
When I was done, I held the graph paper about three feet away from me (getting short-sighted by this point) - I had been able to successfully graph out:
I could therefore mathematically, graphically and jurisprudentially explain it to my client.
Now, my two questions are these: