Courts mandate socialism to promote ‘fundamental justice’

Eighteen years ago, the Supreme Court of Canada ruled Quebec’s prohibition on private medical insurance to be unlawful. Wait times in the public health-care system put people at risk, the majority said, and they have a right to seek private care if the public system can’t deliver. In 2009, a challenge was commenced against similar laws in British Columbia. When the case reached the B.C. Court of Appeal 13 years later in 2022, the court upheld the prohibitions. The state can prevent citizens from obtaining medical treatment outside the public system, the court said, even if waiting may kill them. In April, the Supreme Court of Canada declined to hear the appeal, denying B.C. residents the same rights it earlier gave Quebecers. The court gave no reasons, as is typical, but such dismissals are generally interpreted as acquiescence: All good, nothing to see here.

But how can Quebecers have more rights to medical freedom than other Canadians? The Quebec case was not decided under the Canadian Charter of Rights and Freedoms, but under Quebec's own Charter of Human Rights and Freedoms, a mere provincial statute. Four of seven judges at the Supreme Court held Quebec’s prohibitions to be inconsistent with this Act. Three of those four found the prohibitions also infringed the Canadian Charter, but the fourth didn’t say one way or the other, and the three dissenting judges said no. So the case did not establish that the Canadian Charter was violated.

Yet the relevant wording in both charters is almost the same. Both guarantee individual rights to life, liberty and personal security. The Canadian charter has one extra phrase. Section 7 says that the state cannot deprive people of life, liberty and security “except in accordance with the principles of fundamental justice.” The Quebec provision doesn’t have this clause.

But what, pray tell, are principles of fundamental justice? In previous cases, the Supreme Court has said that a law may deprive Canadians of their right to life, liberty or security of the person if it is not arbitrary, overbroad or grossly disproportionate to the law’s purpose. In the B.C. decision, the majority said the law’s purpose was to ensure that access to necessary medical care “is based on need and not on an individual’s ability to pay.” What fundamental norm related to the distribution of medical resources, the majority asked, would be acceptable within our society?

For decades, Western countries have experienced a slow cultural revolution. Its intellectual leader, some say, is Marx. Others point to Foucault, Gramsci or Marcuse. But in the halls of the law schools, its champion must surely be John Rawls. For progressive law professors in common law countries, Rawls’ socialist collectivism represents a moral consensus or starting point from which all reasonable people proceed. As Wanjiru Njoya, legal scholar at the University of Exeter, has put it, Rawls’ academic acolytes rely upon his theories "to defend overtly socialist policies on grounds that such policies are impartial.”

Rawls’ “veil of ignorance” is his most famous thought experiment. Behind the veil, the theory goes, no one knows their destinies and attributes such as wealth, abilities, intelligence, race, gender and so on. Since no one is sure whether they will be on top of the heap or at the bottom, Rawls insists, every reasonable person would agree that redistribution of wealth and state provision of services are the only rational aspirations.

Of course, the veil of ignorance demonstrates no such thing. My ignorance of the person I will be does not dictate my values. Given the choice between socialism and liberty, I would prefer to be free rather than managed, and take my chances. Njoya writes that Rawls’ reasonable man "favours positive rights and social comforts... guaranteed by the state, which in turn requires a legislative framework designed to implement wealth redistribution.” Like Rawls himself, Rawls’ reasonable man is a socialist.

So, it would seem, are the two B.C. appeal court judges who wrote the majority decision (the third judge concurred in the result). When it comes to the distribution of medical resources, they wrote, fundamental justice must be approached “on the basis that no one knows whether they will be among those with sufficient resources [to seek private medical treatment]. It may be that one will fall into the group without those resources. If everyone had to choose a distributional principle but did not know if they would turn out to be able to make private provision or not, it is plausible that many or most would opt for a system the protects distribution according to need, rather than ability to pay.” Rawls’ veil of ignorance is not identified by name, but its contours are unmistakable.

“[F]oundational norms structuring the basic distributional principles ordering our society,” the judgment concluded, cannot “be held hostage to the veto of any one individual who bears adverse consequences.” In plain English, fundamental justice requires equal distribution of medical resources, even if that prevents you from obtaining private care that would save your life.

Fundamental justice is constitutionalized socialism, at least according to the majority at the B.C. Court of Appeal, and Quebecers have more rights than other Canadians. By refusing to hear the case, the Supreme Court has said it’s cool with that.