In a high-speed, fast-food world, there's no room for patience. We hate to wait in line on the path to instant gratification. Most of the time our demand for immediate attention is childish, bordering on neurotic; however, when someone is waiting for surgery or waiting for trial, the demand for immediacy is compelling and legitimate.
Last month the Supreme Court of Canada released a groundbreaking decision, Chaoulli v. Quebec, condemning the delays and inefficiency in the administration of public health care in Quebec. The court concluded that long waiting lists for medical treatment violate the rights of patients.
It's ironic that a profession drowning in court congestion and delay was called upon to judge the speed and efficiency of public health care. The auditor general of Ontario has warned that criminal case backlogs have increased so much that there is risk of a repeat of the 1992 situation, when delays forced 50,000 charges to be withdrawn.
Why can't the hordes of new doctors and lawyers keep up with demand? Are we really that unhealthy and conflict-ridden? Or do doctors and lawyers thrive in an atmosphere of inflated demand, unconsciously conspiring to keep the backlog growing, thus making their services indispensable?
There may be some truth in the conspiratorial notion that legal and medical professionals reap financial gain from systemic inefficiency. Doctors and lawyers do little to curb demand for their professional services. Doctors and lawyers are good at dealing with a problem when it has reached an inescapable impasse. Cut out the tumour. Replace heart valves. Send a criminal to jail. These are all desperate measures needed when the problem hasn't been attended to at early stages.
If doctors focused their energies on preventive medicine, they'd lose business cutting people open or maintaining them on pharmaceuticals. If lawyers and judges focused their energies on mediating and resolving social conflict as it arose, they'd lose their business of conducting show trials or negotiating 11th-hour desperate settlements for their clients.
In the Chaoulli case, the Supreme Court was called upon to render judgment about the legal and constitutional implications of health care inefficiencies, but for me this judgment, or the process of rendering this judgment, speaks more to the deadly inefficiencies that keep our justice system mired in chronic backlog.
The Chaoulli case started in the late 1990s when a doctor and patient in Quebec launched a constitutional challenge to the provincial prohibition on insurance for private health care. They contended that the inefficiencies in the public health care system were endangering patients.
While government lawyers acknowledged that all is not well with our health care programs, they also contended that public health care programs must run in an exclusive, monopolistic fashion to survive. The Supreme Court of Canada did not agree, and ruled that Quebec's prohibition of private insurance for health care was constitutionally invalid.
Many doomsayers in the media claimed that the foundations of universal medicare were shaken, if not toppled, by this ruling. But when you scratch below the surface, you find that the decision is full of sound and fury signifying next to nothing. Once again, lawyers have found a way to muddy the waters. Once again, judges have found a way to keep the lawyers happy by resolving very little and leaving sufficient uncertainty to guarantee lots of continuing business.
Here's what actually happened. The Supreme Court of Canada sat seven judges; two others were missing in action. Out of this group, three judges concluded that public health care inefficiencies violate a patient's constitutional rights under Section 7 of the Canadian Charter Of Rights And Freedoms. Three others disagreed. There was a deadlock. The odd judge out, Madame Justice Deschamps, refused to address the question of whether waiting lists and delays violate constitutional rights. She would only decide that the delays violated rights contained in the Quebec Charter.
Thus, the prohibition on private insurance for health care in Quebec was struck down in a split decision without deciding the fate of all the other inefficient provincial programs. So all the hand-wringing about the future of medicare is for naught. The court left the door open for the provinces to continue doing whatever they wish to do until someone outside Quebec comes forward to start yet another case.
I understand that for difficult public policy issues there will be differences of opinion, but a court has to speak with a clear voice. In many European jurisdictions, the decisions of high courts are a single opinion authored "by the court" and not the individual judgments of Smith, Jones and Poindexter. As much as I respect individuality and the expression of personal opinions, it is a waste of time to decide nothing when your only mandate in life is to make binding decisions. Do Canadians have a constitutional right to effective and efficient health care? Who knows?
One of the reasons why the legal profession can't manage its backlog is because it doesn't really care. It does not respond to consumer demands because the profession does not see itself as being in the service industry.
In the Chaoulli case we caught a glimpse of the divine indifference of the law. The court didn't seem to care that its ruling solved very little and provided no guidance as to the future of public health care.
Judges have no incentive to compromise and make tough political choices; their profession thrives on ambiguity and uncertainty. Despite appearances to the contrary, a single case doesn't often mean very much. A case means only what the next case says about it. Lawyers will stretch the precedent, manipulate the reasoning and put their legal spin on the decision. And the Chaoulli case is a lawyer's wet dream in terms of irresolute decisions that leave the playing field free and clear. Ambiguity is great for the business of law but lousy for the consumers of law.