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Access to Care, Access to Justice

The Legal Debate Over Private Health Insurance in Canada

edited by Colleen M, Flood; Kent Roach & Lorne Sossin

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health care issues, health
list price: $55.00
also available: eBook
published: 2005

Historically, the Supreme Court of Canada has avoided direct intervention in health care policy-making. This posture changed dramatically with the release of the Chaoulli decision in June 2005. In a narrow four-to-three decision, the Supreme Court struck down Quebec laws prohibiting the sale of private health insurance on the basis that they violate Quebec's Charter of Human Rights and Freedoms. Three of the four judges in the majority also found the provisions violate section seven of the Canadian Charter of Rights and Freedoms. In a blistering dissent however, the three judges in the minority found that the insurance restriction violated neither the Quebec nor the Canadian charters. The result makes further Charter challenges to similar laws in other provinces inevitable, but the question of whether they will or should succeed remains contested.

In September 2005, a conference was convened at the University of Toronto to discuss the legal implications of the Chaoulli decision. Some of the top Canadian scholars in the fields of health law and health policy were brought together to exchange ideas and to chart the potential legal course for Canada in the decision's wake. Access to Care, Access to Justice contains all the papers given at this conference.

Edited by Colleen Flood, Lorne Sossin, and Kent Roach, the collection explores the role that courts may begin to play in health care and how this new role is of crucial importance to the Canadian public and their governments. As litigators for those who favour more freedom to provide private health care and aggrieved patients marshal their legal resources, provinces across the country are considering their options. Some are seeking guidance on how to better insulate themselves from review; others may welcome such challenges as a way to revisit the provisions of the Canada Health Act. The contributors to Access to Care, Access to Justice examine how the future of Canadian health care is likely to be determined both in the courts and in the legislatures and scrutinize how these changes will affect Canadians.

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About the Authors

Colleen M, Flood

Colleen M. Flood is a Canada Research Chair in health law and policy in the Faculty of Law and the Department of Health Policy, Management and Evaluation at the University of Toronto.

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Kent Roach

Kent Roach, CM, FRSC, is a professor of law at the University of Toronto, where he holds the Prichard-Wilson Chair in Law and Public Policy. In 2002, he was elected a Fellow of the Royal Society of Canada by his fellow academics and in 2015 was appointed a member of the Order of Canada. In 2013, he was awarded a Trudeau Fellowship and in 2017 the Canada Council awarded him the Molson Prize for his contributions. He has taught criminal law since 1989 and been editor-in-chief of the Criminal Law Quarterly since 1998. He is the co-editor of Cases and Materials on Criminal Law and Procedure, numerous collections of essays and thirteen books, including Constitutional Remedies in Canada (winner of the 1997 Walter Owen Book Prize); Due Process and Victims’ Rights: The New Law and Politics of Criminal Justice (shortlisted for the 1999 Donner Prize); The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (shortlisted for the 2001 Donner Prize); (with Robert J. Sharpe) Brian Dickson: A Judge’s Journey (winner of the 2003 Defoe Prize); The 9/11 Effect: Comparative Counter-Terrorism (co-winner of the 2012 Mundell Medal); and (with Craig Forcese) False Security: The Radicalization of Canadian Anti-Terrorism (winner of the 2016 Canadian Law and Society book prize). Professor Roach has served as research director of the Commission of Inquiry into the Bombing of Air India and the Goudge Inquiry into Forensic Pathology and was volume lead on the Truth and Reconciliation’s Commission volume of the legacy of Residential Schools for Indigenous children. Acting pro bono, he has represented civil liberties and Indigenous groups in interventions before the Supreme Court, including in Golden and Ward on strip searches; Khawaja on terrorism; Latimer on mandatory sentencing; Gladue, Ipeelee, and Anderson on sentencing Indigenous offenders; and Sauve on prisoner voting rights.

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Lorne Sossin

Lorne Sossin was the research director to the Task Force on the Rule of Law and the Independence of the Bar. He is a professor and former associate dean (2004–2007) at University of Toronto’s Faculty of Law. In January 2008, he will become the director of the Faculty of Law’s Centre for Professionalism, Ethics and Public Service.
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