The Governance of Health Care: Fundamental Values, Law and Ethics, Courts, Parliament, and the Charter
| Author | Charles D. Gonthier |
| Pages | 7-23 |
7
The Governance of Health Care:
Fundamental Values, Law and Ethics,
Courts, Parliament, and the Charter
the honourable charles d. gonthier
A. INTRODUCTION
We live in a country of great expectations, expectations that are fed by the ad-
vances of technology—health care is a prime example— and by the dissemi-
nation of knowledge and growing awareness, imperfect as they may be. Law
benets from technology and it is also the object of great expectations.
My thoughts in this chapter are expressed against the background of the
two great expectations which Western societies have of the law today and which
it is the challenge of any and every legal s ystem to meet: the rst is that certain
moral values nd expression in the law and are sanctioned by it —the Canadian
Charter of Rights and Freedoms is the highest expression of this. e second is
that laws be so conceived and applied as to allow decisions that are perceived as
rendering justice in the individual case; the fur therance of a general rule at the
cost of injustice in individual cases is less accepted as a necessary socia l burden.
e fa ct rema ins, h owever, th at the r ule of law, as it s name i mplies , requ ires
set rules to be applied by judges so that arbitrariness and uncert ainty are avoid-
ed. If the law is to serve as a guide to social activity, it must have a degree of
stability.
Canadian Charter of R ights and Freedoms, Part I of the Constitution Act, , being
Schedule B to the Canada Act (U.K.), , c. [Charter].
8Health Law at the Supreme Court of Canada
B. ROLE OF LAW IN GOVERNANCE
My thoughts are also expressed against the background of the role of law in the
governance of society. Human activity in a society is determined and framed
by its governance. Law is the ordering of and an instrument of governance. We
must be concerned with the proper role of law in gover nance as disting uished
from and in complement with ethics— the law being the guardian of liberty,
and ethics its inspiration, for liberty calls for responsibility.
Governance by rule alone leads to the neg ation of liber ty while liberty
without rule is the negation of governance. Good governance requires law to
be generous in the scope it guarantees to liberty, and each person and commu-
nity to be generous in their commitment to abide by the rule of the law and be
guided by the precepts of ethics and their aspirations.
1) TheSpiritoftheLaw
e rule of law is of course important for an ordered society. e Supreme
Court of Canada has noted that “‘the rule of law’ is a high ly textured expression
importing many things … conveying, for example, a sense of orderliness, of sub-
jection to known legal rules and of executive accountability to legal authority.
At its most basic level, the rule of law vouchsafes to the citizens and residents of
the country a stable, predictable a nd ordered society in wh ich to conduct their
aai rs. It provides a shield f or individuals f rom arbitrary st ate action.”
Black letter law serves to create a certain level of determinacy and predict-
ability in the outcome of legal disputes. But an ordered society requires com-
mitments to others, otherwise order will not prevail for very long. A society
that does not succeed in meeting the needs of a signicant segment of its popu-
lation is a society doomed to instability. No matter how many black letter laws
it has, there can be no proper application of the law in such a context.
Again quoting from the Supreme Court of Canada in the Quebec Seces-
sion Reference: “A nation is built when the communities that comprise it make
commitments to it, when they forego choices and opportunities on behalf of
a nation, … when the communities that comprise it make compromises, when
they oer each other guarantees, when they make transfers and perhaps most
pointedly, when they receive from others the benets of national solidarity. e
Reference Re Secession of Quebec, [] S.C. R. at para. , D.L.R. (th)
[Quebec Secession Reference].
To continue reading
Request your trial