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Freedom fighter

Dr. Jacques Chaoulli was fed up with seeing patients wait for surgery, banned by law from paying for the health care they needed. Now, after a decade of fighting Canada's most sacred institution, he's finally got his day in court

Peter Jaworski - October 11, 2004

It's eight o'clock in the morning in Ottawa on June 8, 2004, as Dr. Jacques Chaoulli walks into the Supreme Court of Canada, his daughter Maï and wife Michiyo at his side. Chaoulli is representing himself before the highest court in the land. But in the cloakroom, just before he is called before the justices, instead of reviewing his legal briefs, Chaoulli spends his preparation time chatting with his daughter, doing his best to explain what is happening--why they are here, fighting the full force of the Canadian government's most sanctified institution--and trying to predict for her, as best he can, what the consequences might be. After all, the battle against Canadian health care is one that Chaoulli has been fighting since before the girl was even born.

Maï, a precocious 12-year-old, listens carefully and offers plenty of advice. She tells him to make sure to tell the justices about all the people he has helped in the past, and all the people who would be helped if he manages to win his case. "I will," he assures her. She reminds him to speak slowly, and to make his points clearly. He tells her he will. The girl tells him that he shouldn't be worried and he reassures her that he isn't. Just impressed, very impressed, and a little awestruck by the building and the rooms. Maï tells him she's impressed with the building, too. By 3 p.m., it's all over and the Chaoulli family begins to make their way back home to Montreal. The doctor had come as far as he could have possibly imagined, and had made the strongest case that he could to demonstrate that Canada's health care monopoly was wrong and illegal. Now, all he can do is wait.

It's been a long, messy and expensive struggle for Chaoulli to get his day in the Supreme Court. The hearing was the culmination of a challenge that started back in 1997, when Chaoulli first took on medicare in a lower Quebec court. The case is his own mini-version of an antitrust challenge, an attempt to break Ottawa's stranglehold on the way that medical care is provided in this country. He, like so many other doctors, and nurses, has seen the medicare system from the inside and seen its failings and the patients who suffer. But whenever Chaoulli has tried to provide solutions that fall outside the officially approved framework, he has been punished. Only, Chaoulli has doggedly fought back, much to the chagrin of the unions, politicians and health care socialists who guard the current dysfunctional system with equal determination. With a little help from friends and family, he has spent, by his best guess, close to $600,000 to date, fighting against Canada's most sacred of cows and one of its largest public institutions. And he may yet win.

It is not easy to get to the Supreme Court. Fewer than 100 cases a year make it this far. Non-criminal cases are usually only granted appeal to the Supreme Court if they pertain to matters of relations between the provinces and the federal government, or if the outcome of the case has a strong public policy dimension to it. This case has a bit of both. Like any good lawyer, Chaoulli's arguments challenging Ottawa's health care monopoly are creative, albeit grounded in solid legal reasoning. For one thing, he claims that nowhere in its provincial powers does Quebec have the jurisdiction to prevent a parallel private system. He wants a declaration of ultra vires, the claim that the province could not enact such a prohibition because it is beyond its authority. Secondly, and perhaps most importantly, the 52-year-old family physician is arguing that Canada's health care system is in violation of Section 7 of the Canadian Charter of Rights and Freedoms. That section reads that Canadians have the right to "life, liberty, and security of the person." Waiting times for surgery in Canadian hospitals are so long, he argues, that they endanger our health. Because Canadians are prohibited from paying to get the care they need, the security of their person is compromised.

"The third argument," says Chaoulli, in his thick French accent, "is an argument of discrimination in the sense that I, as a Canadian, am prohibited to use my own resources in Canada to get private service, while a foreign visitor is allowed to come into Canada and do queue-jumping in front of me and get faster service by paying." Exempt from the Canada Health Act, foreigners-those on workers' compensation, some athletes and a few others--are allowed to make use of fully private hospitals and pay for their care. This violates Section 15 of the charter, which guarantees that our government will not discriminate between citizens. "I have a disadvantage," he argues, "the Canadian people have a disadvantage in comparison with foreign visitors."

The final argument falls under Section 12 of the charter--"that the total prohibition on private care is an infringement of the protection against cruel and unusual treatment," Chaoulli says. He explains that even if he has the means to help himself, Canada's system legally prevents him from saving himself if he finds he is in need of medical care that his local hospital cannot provide in time. "There is a total ban," he says, "and this ban is cruel and unusual treatment because I might die as a result of it."

Stories of patients dying while waiting for life-saving treatments, or languishing in pain on a waiting list a year long or more, are not hard to come by in Canada. According to an annual survey of waiting times for medical procedures conducted by the Fraser Institute in 2003, patients waited on average nearly 18 weeks between the time they were referred by their family doctor until they received treatment. That number is up, from 16.5 weeks in 2002. That's just an average; for orthopedic surgery, the average waiting time across all provinces was more than 32 weeks. Most physicians know all too well that, in this country, waiting times are the blight on our health care system that makes all our government's claims to having a more compassionate model than in other countries, ring hollow.

But of nearly 60,000 practising physicians in this country, only Chaoulli has stood up to the monopoly that forces patients to get their care from one, overburdened provider. Why him? "Doctors were not in the same position as I was," he says. His experience, he insists, is unique. Born and raised in France, where he earned his medical degree at Paris University, Chaoulli immigrated to Quebec in 1977. In 1991, he was the only doctor in the province conducting emergency house calls on a full-time basis. His white Chevy van acted as a sort of private ambulance. "I had a permit from the central police station authorizing me to have the red light and the siren," he says. He filled a void in the health care system that the government could not, or would not. Operating on Montreal's South Shore, Chaoulli was run off his feet doing emergency house calls. Though he charged fees for his services, there was no lack of demand, and he served patients of all kinds. "I used to answer any call, from a heart attack to a call from the police station for a prisoner feeling sick, from a call from the ambulance service for a car accident, to a suicide, and all kinds of situations you could never even imagine," says Chaoulli. "Other physicians used to call me every day asking me to visit their own patients." His practice grew and soon he had several doctors working for him, eventually serving the entire area of Montreal.

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