Talk:Chaoulli v. Quebec (Attorney General)

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[edit] Deschamps v. McLachlin and Major

The case, Chaoulli v. Quebec (Attorney General), must be considered in context in order to determine what status should be accorded to the respective opinions of Deschamps, and McLachlin and Major. They both cannot be majority decisions; there is only one majority. The question at issue with all majority decisions, is the question as to which one is controlling according to the doctrine of stare decisis. If there is a majority decision that means that more than half of those judges on the court have agreed on a very particular set of principles which, in their opinion, dictates the disposition of the court: the ratio decidendi. What we are looking for, therefore, is who's opinion is binding upon the lower courts.

It is abundently clear that the decision of McLachlin and Major, while containing more "signatures" than Deschamps, is, in fact, not a majority or plurality opinion. The bulk of their reasoning rests on their finding that Quebec's ban on private insurance for publicly insured health care services violates the Canadian Charter of Rights and Freedoms -- a question of law with which only three justices, out of seven, agree. The other four either dispute that finding (as Binnie and LeBel and Fish do) or have endorsed a completely different set of reasons to explain why the court disposed of the appeal the way it did (as Deschamps did).

Is McLachlin and Major's opinion, therefore, a plurality opinion? No. Why? Simply because it does not contain the ratio decidendi of the court. The decision of the court is accurately stated in the "holding" portion of the box on the side:

Section 15 of the Health Insurance Act and section 11 of the Hospital Insurance Act, which outlaw private medical insurance, violate the right to personal inviolability as guaranteed by the Quebec Charter of Human Rights and Freedoms

This finding has the majority's approval, that being Deschamps, McLachlin, Major and Bastarache's. The opinion which expounds upon this finding is that of Deschamps. McLachlin and Major (writing also for Bastarache) "concur in the conclusion of our colleague Deschamps J. that the prohibition against contracting for private health insurance violates s. 1 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12, and is not justifiable under s. 9.1." (see para. 102) [emphasis mine]

However, McLachlin and Major do not stop there; they write at length about how they also believe that the ban violates the Charter; all of which is clearly obiter dicta since the decision was based on much more narrow reasoning not taking into account the Charter.

It is appropriate, therefore, to make the necessary corrections. Deschamps' opinion is the majority opinion and McLachlin and Major's opinion are a concurring opinion.--Ben 19:22, 19 July 2006 (UTC)

I have changed my mind, regarding the above discussion. Notwithstanding the fact that no one "signed" Deschamps opinion explicitly, McLachlin, Major and Bastarache still agree with it, therefore they have "joined it". Consider the following definition given by the Canadian Law Dictionary by John A. Yogis, Q.C., fifth edition, at page 200:

OPINION The reason given for a court's judgement, finding or conclusion, distinguished from the decision, which is the judgment itself. An opinion of a court implies its adoption by a "carrying vote" of the judges. Opinions are usually written by a single judge, and if there were more than one judge deciding the matter, other judges will join in the opinion. If a majority of a multi-judge tribunal joins in the opinion, it is a majority opinion or simply "the opinion," whereas a PLURALITY OPINION is one agreed to by less than a majority of the court, but that is concurred in by a majority for the result only so that the appellate court can dispose of the matter in accordance with the majority wishes of the court with respect to result if not with respect to the reasoning. A plurality opinion carries less weight under stare decisis than does a majority opinion.

In the above definition I would like to emphasize that 'joining an opinion' is used interchangeably with 'agreeing with an opinion', but not to the extent that it is merely 'agreeing with the result'. If this use of the term "joining" is not in error, it appears to me that McLachlin, Major and Bastarache have clearly joined Deschamps opinion since they agree with her conclusion that the ban violates the Quebec Charter for exactly the same reasoning.--Ben 13:36, 24 July 2006 (UTC)

Disagree with the latest change for what seems to me obvious reasons: While concurring opinions often involve the same result with different reasons, there any many cases in which concurring opinions state "I agree with the opinions given on freedom of expression, but differ on those relating to equality rights." In Wikipedia, we don't count the concurring judge as part of the majority on freedom of expression, then add the same judge to the concurring section for equality. We'd put the judge in the concurring section. That's the way that the Supreme Court typically presents its cases; otherwise it would be incredibly complex, much like the case law in the United States (where a single judge often does sign multiple opinions). It's too complex for the Court and certainly too complex here. CanadianCaesar Et tu, Brute? 19:01, 24 July 2006 (UTC)

Very well, I accede.--Ben 03:36, 27 July 2006 (UTC)