Chaoulli, critical theory and Charter rights.

• Author: Kurata, Vincent

Introduction

Since its inception nearly forty years ago, Canada's universal public healthcare system has risen to near-iconic status in the national psyche. Despite growing public concern about healthcare's ability to cope with an increasingly commercialized medical profession, rapid technological developments in diagnostic equipment, and skyrocketing pharmaceutical costs, the single-tier Canadian system had remained virtually sacrosanct in national political debate until quite recently. Politicians understood the explosive potential of a debate on healthcare, (1) and Courts seemed inclined to leave healthcare issues in the political arena. Indeed, with the exception of Eldridge v. B.C., (2) the Supreme Court of Canada [S.C.C] had traditionally been very deferential to legislatures in matters relating to healthcare administration. With this public reverence for healthcare and this history of legal deference in mind, the media firestorm that followed the S.C.C.'s decision in Chaoulli v. Quebec (3) was hardly surprising. The real surprise was the decision itself.

Because the Chaoulli decision--which ruled s. 15 of Quebec's Health Insurance Act (4) and s. 11 of its Hospital Insurance Act (5) to be unconstitutional--ultimately hinged on an application of the Quebec Charter of Human Rights and Freedoms, (6) its ultimate impact on healthcare administration in the rest of Canada has yet to be revealed. That said, most of the popular commentary on Chaoulli has addressed itself to the effects the decision will have on the accessibility of medical care to Canadians. (7) Legal academics, conversely, have focused primarily on two issues: first, the extent to which the S.C.C. "got it right," and second, how Chaoulli signals a move by the S.C.C. that will ultimately enlarge the scope of Charter (8) jurisprudence. In this first camp, academics have mainly concerned themselves with the propriety of the manner in which the majority disregarded evidence that was pivotal in the decisions of the lower courts--evidence that demonstrated how public healthcare systems deteriorate when parallel private systems are introduced. (9) Scholars in the latter grouping have voiced a more general malaise about the activist impulse evinced by the S.C.C. in this landmark decision. (10)

With the exception of two notable articles that I intend to draw upon in this paper, (11) the lacuna in the academic response to Chaoulli has been one of disciplinary introspection. Those whose worry is that the S.C.C. "got it wrong" assume that the law offers a principled framework of such an exhaustive nature as to allow definitive proclamations of right and wrong, correct and incorrect, if only in law. Their "orthodox" (12) conception of the law limits their inquiry to asking what the law can tell us about Chaoulli, and not what Chaoulli is telling us about the law. Those who despair that the S.C.C. has transgressed the bounds of its legitimacy, moving from the realm of the legal/adjudicative into the realm of politics/policy, assume that the divide between these abstract categories is objectively determinable, though they may of course differ on where to draw the line.

In this paper, I intend to address the introspective gap that exists in the extant legal commentary on Chaoulli by inverting the direction of critical inquiry. Instead of asking what the law tells us about this controversial decision, I will be addressing what this decision can tell us about the law. In doing so, I will use three of the fundamental tenets of Critical Legal Studies [CLS] as both starting points and points of reference. Namely, these tenets are (1) the law is indeterminate, (2) the law is inherently ideological, and (3) the narrow focus of most legal scholarship--on adjudication--has the effect of creating disciplinary blinders which preempt critical inquiries from arriving at a robust understanding of how the law functions to maintain and legitimate existing social institutions and hierarchies. (13)

My analysis will begin by demonstrating that Charter rights are neither objectively discernable nor definable. Rather, rights, at least to the extent that they exist in contemporary democratic societies, constitute little more than reified expectations of entitlement that are held by ideological subjects. Next, I will draw upon Sossin to demonstrate that the distinction between positive rights and negative freedoms is not a simple or straightforward one. (14) Nor is the definition of "principles of fundamental justice," (15) as set out in the Charter. Ultimately, this analysis will reveal that when courts deploy rights discourses, they are heavily conditioned by prevailing, hegemonic, ideological belief systems. In the same instance, courts function as agents in the maintenance and legitimation of these systems. I will use Chaoulli as a lens through which to observe the machinations of the law and as a means to ground this otherwise abstract exercise. At the end of the day, this deployment of Chaoulli will show that the majority's definition of arbitrariness and its conception of negative freedom are both heavily contingent upon an ideological assumption that the Charter applies in practice to liberal subjects. By liberal subjects, I mean autonomous, agential subjects who are actually capable of availing themselves of the rights that the Charter confers. Finally, my analysis will show that this normative assumption of a liberal subject fails to account for the significant number of Canadians who do not have the financial means to assert themselves as agents in a capitalist market economy. For this unfortunate class of people, the rights relied upon by the majority in Chaoulli are the rights of the elite: rights that function, in law, to legitimate and reify disparities "of health and wealth." (16)

Theoretical Apparatus

To claim that I am using critical theory as my baseline critical methodology would, at best, be an unhelpful statement. Indeed, CLS is more of a "political location" than an "intellectual movement" with an "essential intellectual component." (17) It draws, at once, upon linguistics, anthropology, and literary theory, as well as moral, legal, and political philosophy, and it draws on all of these things within the rubric of a more general poststructural sensibility. (8) That said, occupants of this political location share some common theoretical assumptions and methodological imperatives.

To begin, critical theorists posit that the law is indeterminate. (19) This indeterminacy thesis can proceed from two separate but related starting points: one borrows from the tenets of Legal Realism, which were seminally articulated by Jerome Frank and Karl Llewellyn in the 1930s (20); the other emerges out of the poststructuralist project of deconstruction, and more particularly, the work of Jaques Derrida. (21) The former point of departure takes up the realist "[d]istrust of traditional rules and concepts insofar as they purport to describe what either courts or people are actually doing." (22) Essentially, the realists recognize that the law is subject to myriad formulations and interpretations at its adjudicative point of application. Any deployment of the law, they claim, is configured by the personal whim of the judge who is applying it. This juridical whim is, in turn, imbued by the policy goals (social or political) that the judge is trying to advance. The realist understanding of the law is, thus, an instrumental one, and the uncertainty of the law is to be observed and theorized by focusing on judicial decision-making--hence their focus on "the law in action." (23)

Critical legal scholarship takes up the realist notion of legal uncertainty, but approaches it through a different line of inquiry in order to demonstrate that the law is indeterminate. This line of inquiry starts by identifying the "paired oppositions and standard sets of arguments" (24) embedded in legal discourse. Given any factual circumstance, the law is capable of grounding arguments that can lead to a number of differing results. Such inquiry, thus, demonstrates that legal rules and principles lack both structural integrity and predictive value. Instead, critical scholars claim substantive law is made up of conflicting principles. While the law may hold itself out to be a "seamless web of rules," (25) critical scholarship posits that it is an "unruly miscellany," (26) a collection of principles rife with gaps, contradictions and ruptures. Since the law is indeterminate, judicial interpretation amounts to an exercise in which some principles are privileged and others are suppressed. The work of legal arbiters is, thus, one of legislation: choosing between conflicting principles and imbuing the privileged ones with the normative force of the law. Their guide in this process of selection and suppression is ideology--a point to which I will return.

A second avenue through which CLS has demonstrated the indeterminacy of the law invokes both structuralist linguistics (semiotics) and poststructuralist deconstruction. (27) While deconstructionist arguments can take many forms, I will be relying particularly on the Derridian notion of differance. (28) Derrida begins at the Saussurian (29) premise that language is a system of signs. A sign acquires meaning through opposition with other signs in the system. We cannot know what someone means when they say "chair," for example, unless we know what words like "stool," "couch" and "bench" refer to. We cannot grasp what "stool," "couch" and "bench" refer to unless we have an idea of what a "chair" is. Imbuing a sign with meaning, then, requires determining where it fits in this system of interrelated and mutually dependant signs. Meaning, moreover, can only be arrived at through a cognitive process of oppositions. That is to say, that one can only recognize what a sign "means" by recognizing what it does not mean--by recognizing it in contradistinction...