The Atkinson Charitable Foundation website carried this letter dated Mar.8, 2006 by Martha Jackman, "Counsel for the Intervenor in Chaoulli, Faculty of Law, University of Ottawa" headlined "Bad law, bad health care", in response to a Mar.7, 2006 Globe and Mail article "Romanow, Romanow, Where Art Thou":
"Charles Pascal's article on "evidence amnesia" in health-care reform (Romanow, Romanow, Where Art Thou? -- March 15) is equally applicable to the Supreme Court of Canada's Chaoulli decision that precipitated the two-tier reform initiatives we are now witnessing in Quebec and Alberta.
Like other proponents of two-tier care, the majority of the court in Chaoulli ignored the weight of expert evidence in the case and the trial judge's conclusion that striking down the ban on private insurance and funding would not only lengthen waiting lists in the public system but would subvert the equality-based principles of medicare: access to care based on need, not on ability to pay.
The majority's decision to ignore this evidence was bad law. More shameful still, is how it is being used to legitimate bad health policy, to the detriment of the health-care rights of all Canadians."
Martha Jackman wrote in “Privatized health care infringes on Charter rights”, (Ottawa Citizen, May 11, 2007):
“Re: Real health care, May 4.
A Charter challenge to Ontario's public health insurance system, announced last week by the Canadian Constitution Foundation and applauded in the Citizen editorial, represents yet another push to privatize the Canadian medicare system and is based on a distorted reading of the Supreme Court's Chaoulli decision in 2005.
Only three of seven judges who ruled in favour of Dr. Jacques Chaoulli found that Quebec's ban on private health insurance violated the Canadian Charter. Contrary to the evidence accepted by the trial and appeal courts, the three Supreme Court judges concluded that the problem of health-care wait times could be solved by allowing private health insurance.
The Chaoulli decision was widely condemned for its failure to recognize the costs and inefficiency of allowing two tier-medicine in Canada, and for ignoring the health rights of those Canadians unable to obtain private health insurance, because they are a bad risk or because they can't afford it.
Legislation such as Ontario's Commitment to the Future of Medicare Act is necessary to protect and promote the Charter health rights of all Canadians and not merely those who can afford to buy private care. The three dissenting judges in Chaoulli agreed that a ban on private health funding is a rational and legitimate measure to protect the integrity of the medicare system, which benefits all Canadians.
In light of widespread condemnation of the Chaoulli decision by health law and policy experts alike, a second Chaoulli-type challenge in Ontario is, fortunately for us all, unlikely to succeed.”
In response, Merrilee Fullerton wrote in “ See the bigger picture for health care”, (Ottawa Citizen, May 15, 2007):
“Re: Privatized health care infringes on Charter rights, May 11.
Letter-writer Martha Jackman writes that "a second Chaoulli-type challenge in Ontario is, fortunately for us all, unlikely to succeed."
Although most of us would like to keep the current system of Canadian public health insurance if possible, what may be truly unfortunate for us in the long term is to fail to understand the bigger picture of health care requirements of the coming decades. Health care takes decades to change in any meaningful way, and if we are to be prepared to meet the needs of the population past 2010 including technology, pharmaceuticals, long-term care, new diagnostic methods and treatments and sufficient provider numbers, then significant changes must start now.
Health care occupies 46 per cent of Ontario's provincial budget. With hundreds of millions of dollars being poured into health care pre-election, one is left wondering how high this percentage will go and how this rate of funding can be sustained.
Unfortunately for some patients, including those who are waiting in queues, which are not all measured; for those who have been denied care in their own country because their treatment has been deemed by the powers that be as "not cost-effective"; for the patients with genetic diseases with new expensive treatments not covered by the Ontario Health Insurance Plan, we should hope that the Charter challenge to Ontario's public health insurance system is successful.
Maybe then the weakest and the most vulnerable can get the care they need in a timely way. If private health care coverage was required by law for minor medical problems up to a specific dollar value, then more resources would be available for catastrophic illness. Of course, those individuals who could not afford coverage would be supported by the state as they currently are for many other areas.
Let us hope that there are more brave patients such as Lindsay McCreith, the patient at the heart of Ontario's Charter challenge, who are willing to fight for the rights of all patients when they are at their most vulnerable and in the most need.”
Let me point out Dalton McGuinty solemnly declared during the televised leaders' debate Sept.20, 2007 that Ontario spends "one-half" of its budget on health care. (See the video clip on my earlier Dec.5, 2007 blog,"Was Dalton McGuinty fibbing about Ontario's Liberal healthcare spending during the Sep.20, 2007 CTV televised Leaders' Debate?")
Was Dalton reciting an actual fact, or was he just kind of rounding out and generalizing approximations - during an election campaign, no less - which his own government cannot quantify?
A 4% variance on some $38 billion dollars is a LOT of tax-money to just be casually more-or-less estimated and rounded off. That's a lot of room for accountability slip-ups.
Jackman's lawyeric esotericisms are themselves "shameful".
There's no way an incompetent state should have a despotic, legislative fiat to diminish the freedom of individual health care consumers by depriving them of viable choices when the state fails, as it so often does, to live up to the promises it makes.
Villifying the McCreith/Holmes health care charter challenge does not make this challenge irrelevant or illegitimate.
This judicial challenge didn't arise in a vaccuum - it arose because Ontario's state-legislated health monopoly was negligent in its obligations to provide promised health care for its citizens.
The state cannot concurrently breach its own duties, while making it illegal for patients to look after themselves.
Isn't that the simple issue?