Canadian Health Coalition
ACTION REQUEST       
March 18, 2004

Issue:
Senators Ask Supreme Court to Strike Down Medicare as Unconstitutional

Medicare is increasingly under attack by social and economic elites. An unprecedented threat is a case that will be heard by the Supreme Court of Canada on June 8, 2004, alleging Medicare is unconstitutional. Joining the
case to ask the Supreme Court to open the door to a full-fledged private health insurance system in Canada is a group of 10 senators, led by Michael Kirby and a group of for-profit health corporations.

Background

The plaintiffs in the case are Jacques Chaoulli, a doctor, and his patient, George Zeliotis. They alleged that the lack of timely access to provincially insured health care services, coupled with legislative restrictions on access
to private care, amounted to a violation of section 7 of the Charter. This argument was rejected in two lower courts in Quebec.

Other parties supporting the case include: Cambie Surgeries Corporation, Specialty MRI Clinics Inc, B.C; Canadian Medical Association and Canadian
Orthopaedic Association, and a numbered company (411044 Canada Inc.) associated with physicians employed at UBC. The Charter Committee on Poverty Issues with the Canadian Health Coalition as well as the Canadian Labour Congress have been granted intervener status to defend the validity of public health insurance
and hospital legislation.

On whose behalf is Michael Kirby Intervening?

The Senate Committee sought leave to intervene in its capacity as a committee. They agree with Dr. Chaoulli that public health insurance violates the Charter.  The Attorney General of Canada opposed their motion to intervene in
the case on the basis that Senators are members of the Parliament of Canada and, as such have unique privileges and roles to play in the legislative process. The Supreme Court of Canada is not a forum for a small group of
parliamentarians who hold a particular point of view on a public policy issue.  And finally, the AG undertook to file the Senate Committee's report in evidence before the court.  The Supreme Court ducked the issue by granting leave to members of the Committee in their individual capacity.  Senator Yves Morin, M.D, a Committee member chose not to participate before the Supreme Court.

So what is wrong with Senators intervening?  Senator Kirby, for example, is a director of Extendicare Inc of Markam, Ontario, a for-profit nursing home chain.  As a director of the corporation, he owes a fiduciary duty to act in Extendicare's best interests.  This legal responsibility was reinforced recently by the Delaware Chancery Court in its decision about Conrad Black and Hollinger, Inc.

Extendicare Inc. was involved in the largest nursing home abuse and neglect verdict in Florida history. Extendicare has since sold its operations in Florida and expanded into Ontario, where nursing home regulations and inspections are more industry-friendly.

In his affidavit, Mr. Kirby says: "I am. a former senior member of the Prime Minister's Office, former Deputy Clerk of the Privy Council and a former federal Secretary to the Cabinet for Federal-Provincial Relations." Is Mr.
Kirby intervening on behalf of the Government of Canada? The Prime Minister of Canada? The Liberal Party of Canada? The people of Canada? Or the shareholders
of Extendicare Inc?

Furthermore, Senator Kirby's corporate duties and responsibilities make it impossible for him to represent the merits of the case against for-profit health care. Mr. Kirby is in a conflict of interest.   Under his chairmanship, the Senate Committee's report distorted the evidence documenting the case against a larger role for private, for-profit health care.  The Canadian Health Coalition gave the Committee expert testimony and peer reviewed  publication references that it is unwise to entrust the sick and the powerless to profit-seeking firms.   The Committee report, somehow, did not refer to this
evidence.

Considerations

If the Supreme Court grants the appeal, it will find the legislation governing Québec's public health insurance and hospital system to be unconstitutional. A Supreme Court decision of this nature would apply to all jurisdictions in
Canada. Some jurisdictions, including Alberta, British Columbia, Ontario & Québec, are currently exploring options to establish a second tier of for-profit health care. Once the door is open, and a legislature invites in private for-profit and foreign investors in health care, the reservations and protection in the international trade agreements would be null and void. This would sound the death knell for Medicare in Canada.

Action

Write letters to the Prime Minister, Senators, MPs and the editors of local newspapers asking Senator Kirby and the other members of the Senate of Canada participating in the intervention to withdraw from the Chaoulli case before
the Supreme Court of Canada.

The senators asking for the legislation governing Medicare to be struck down are: Michael Kirby, Marjorie Lebreton, Catherine Callbeck, Joan Cook, Jane Cordy, Joyce Fairbairn, Wilbert Keon, Lucie Pépin, Brenda Robertson, Douglas Roche.

Mailing address: 
Senate of Canada
Ottawa, Ontario
K1A  0A4
_____________________________________

For further information:
A special section on Senator Kirby's intervention and the Chaoulli case will be posted shortly on the web site of the Canadian Health Coalition:  http://www.medicare.ca