Chapter 1: “Canadian”: The Context of Bioethics in Canada


This text is about bioethics in Canada. To be clear, it is about bioethics in Canada and less about bioethics and Canada as independent studies. Texts have been written on those topics and those endeavours will not be repeated herein. An introductory chapter to a bioethics text usually takes the form of an introduction to moral theory and the foundations of bioethics. This is critical to understanding bioethics, but it will be dispensed with here and an assumption made that this basic understanding already exists in the reader. To the Canadian student of bioethics, and to the Canadian student or professional that practices or works in fields that are rich in ethical concerns, this text attempts to fill in some of the gaps by providing a well-rounded understanding of the concept of bioethics in Canada. These gaps are in the knowledge and understanding of some of the finer and practical points; points that go beyond theory and into the realms of law, policy, cultural concerns, technological innovation, and the health care system in Canada.

To understand bioethics in Canada one must first understand Canada.  This chapter is a point of embarkation; it provides a foundation for the rest of the topics of the text. While the balance of the text has much more to do with bioethical issues, this chapter has more to do with Canada and the distinctly Canadian context of bioethics topics discussed in the text. For the most part this chapter does not provide details necessary to understanding the remainder of the text, but it does provide an overview of Canada and the Canadian “system” which will enhance and sharpen the understanding of the other chapters. This chapter is the roadmap of Canada at a macro level, and the macro level issues that have ethical relevance.

This chapter is divided into two parts. The first part is an introduction to Canada: the nation, its people, its system of governance, its justice system and its health care system. A basic understanding of these things is essential to set the stage for the other topics of the text. But while on the topic of a general overview, a few significant systemic bioethical issues (issues that play out on a national or cultural level) become apparent and must be briefly introduced and addressed, and this will make up the second part of the chapter.

Before launching into this broad topic, a necessary digression is required: a note on terminology. This text will use the term “bioethics” as opposed to “biomedical ethics”, “medical ethics”, or other terms. While, on the surface, this distinction is somewhat academic and perhaps simply a question of semantic trivialities, it is not an arbitrary choice of terminology. Bioethics is something distinct—it is intended to convey a certain meaning. The meaning intended is for something more than merely medically related, something that exists outside just the biomedical realm, and something that is more than clinical ethics. Bioethics, herein, is taken to mean ethics of all of those things (medical, clinical etc.), but also, it is meant to capture the notion of ethics within the realms of public health, and research ethics. It is meant to be a term that holds within it the consideration of not just medical and clinical ethics of the present, but also contemplation of the future, and of technological and scientific advance. Bioethics will be used throughout the text as a term that is, perhaps, similar to that put forward at the “birth” of bioethics as a concept and as a term which is still in use in the literature as being of a broader purview than other biomedical or clinical ethics terms.1


Canada is a vast nation spanning ten million square kilometres, but although it is the world’s second largest nation geographically, its 33 million people contribute to a low population density.2,3,4 This is but one unique demographic feature that makes up a unique nation. It is culturally diverse, with a mix of immigrant and Aboriginal populations. It is a nation with a well established multiparty democracy and stable governance, and it has a stable system of justice. While it began as separate French and British colonies, France ceded most of its North American territory to Britain in 1763. The British permitted the French language, culture, and legal system to be maintained in former French territories. This French influence and English-French duality is alive today. It will be pointed out many times in this text that not only is Canada officially bilingual, there are also significant differences in the legislative and judicial systems between Quebec and the rest of the country. In 1867 Canada gained autonomy from England over its own governance. Although it still remains a member of the Commonwealth of Nations and adheres (largely, but with notable exceptions) to a British model of government and law, it effectively severed any dependence on British government with the forging of the Canadian Constitution in 1982.


Throughout the text there will be reference to several aspects of the Canadian government so an introduction to the basic landscape is, perhaps, necessary if for no other reason than to set the terms of reference. Canada is a federation, a union of provinces, under a central government. There are ten provinces and three territories: the difference between these being that the provinces derive their legitimacy and authority from the Constitution Act of 1867 and the territories from the federal government directly. (Practically, for the purposes of this text, there is little difference). The legislative branch of government consists of a Senate that is appointed by the Prime Minister, and the House of Commons, which is elected by the people. The Members of Parliament (308 in total), which make up the House of Commons, are elected from constituencies across the country and are responsible for creating, debating and ultimately voting on and passing the majority of new legislation—although said legislation must be passed by the Senate to formally become law.  The Executive Branch consists of the Prime Minister, his or her Cabinet (selected from among the Members of Parliament), and the Queen. The technicalities of this arrangement are beyond the scope of this text, but essentially, the Prime Minister and the ministers of the Cabinet serve to inform the monarch through her representative, the Governor General of Canada. In turn, the Queen or the Governor General must provide assent for every legislative act passed by the legislative branch.

Political parties are not required in Canada, but are recognized by law. There a several major and minor political parties with varying degrees of representation throughout the nation. The leader of the party that wins most seats in an election is “asked” by the Governor General to be the Prime Minister. There are, similarly, provincial political parties of various stripes, but politics in the Territories is often of a non-partisan nature. Elections are to be held no later than five years after a new legislature is formed but technically, an election can be held at virtually any time a Prime Minister or Premier calls one; and practically speaking, they do usually occur more frequently than the five year time limit.

Provincial governments wield significant power and autonomy within the system of government. Provinces and territories have a long list of autonomous responsibilities that are derived from the Constitution Act of 1982. They have the power of direct taxation and revenue generation to be used for provincial matters. They have jurisdiction over their natural resources (and export and trade of those resources), the creation of institutions such as hospitals and prisons, property and civil rights within the province, as well as responsibility for education and health care. Each province has, as its head of government, a Premier (plus a representative of the Governor General), and a Cabinet that serves as the executive branch of the provincial or territorial government. Similarly, each province has a legislative body of elected members in a system that emulates the federal system, with the absence of the second chamber (the Senate).

The third branch of government, after the above noted legislative and executive branches, is the judicial branch. This text is largely about the practical aspects of bioethics in Canada. This text is largely concerned with normative ethics; that is, a consideration of questions such as: “what ought to be done?” and “how should we act?”. Although normative ethics is informed by ethical theory, substantive ethical considerations are often captured by or transcribed into law, policy and regulations. For this reason it would repay any person interested in the field of bioethics to have a basic understanding of the justice and legislative systems of the country in question. While a discussion of the legal system is well beyond the scope of this text, the barest of introductions is necessary to an understanding of the context of bioethics in Canada.

First, an understanding of the constitution is important as the foundation of the Canadian legal system, but is perhaps more important as the foundation for and statement of basic Canadian values that are important to bear in mind in considering ethical issues. The Canadian Constitution is the legal implement giving Canada its substance and legitimacy. The British North America Act of 1867 (now called the Constitution Act of 1867)5 was a British act of parliament recognizing Canada as an entity unto itself. It was not until 1982 that this act was rewritten by the Canadian government in a manner which would ensure a mechanism of amendment, and, more importantly, to sever all ties with British Parliament. The Constitution Act of 19826 retained much of the former’s scope and power, creating a federation of provinces and territories, permitting parliamentary and executive branches, and permitting the creation of the Supreme Court of Canada. The Act enumerated several rights for both English and French speakers— with respect to the latter, perhaps most notable of these is the guarantee of Quebec’s distinctive civil law. The Constitution is also the legislative entity that gives the provinces the substantial powers that were noted above.

One of the more significant roles of the Constitution is the recognition of the Canadian Aboriginal peoples. More will be said about this population below, but special status was preserved in both constitution acts for “Indians and the lands reserved for the Indians,” and this is perhaps an appropriate place to introduce this concept as well as clarify terms of reference. Unfortunately none of the acts validate the commonly held belief that the word—the misnomer—Indian came from Columbus’ early mislabelling of the people whose land he had set sail for. Nevertheless, although the term is out of favour, it is retained in most legislature to this day, and it refers to one group of Aboriginal peoples in Canada, the others being the Inuit and the Métis.  For the purposes of law the word Indian is to do triple duty to refer to these latter groups as well. First Nations People, and Natives or Native Canadians in addition to Aboriginal People all serve as current terms in usage and will be used in this text.7 Besides introducing these terms, the Constitution Act (both of them) reinforced the legitimacy of all previous treaties and land claims but also recognized and protected First Nations identity, culture and practices.

One of the significant new additions of 1982 was to incorporate a bill of rights into the Constitution Act. The Canadian Charter of Rights and Freedoms8 is the first part of the act. It is fundamental to the legal system in Canada inasmuch as it enumerates several basic and internationally recognized human rights that Canadian mores and jurisprudence endorse, but in addition it enumerates several of the specifically Canadian rights and freedoms that define the nation and shape its identity. The former are such rights as: the right to democratic rule and process, and basic rights of freedom (speech, religion, mobility, etc.), as well as the negative rights of protection against discrimination. The distinctly Canadian rights have much to do with cultural identity and linguistic cultures of origin; for example it is enshrined in the Charter that Canadians have the right to receive schooling in the mother tongue of their family, and that courts and legislatures can be held in either official language English or French.

Beyond The Constitution and The Charter, the basic structure of the legal system must also be understood to place some of the topics of this text into context.9 Canada’s legal system is based largely on the common-law traditions of many European countries. Canada adopted, and still refers to, many of the precedents set forth in British law. The notable exception to this is in the Province of Quebec wherein the legal system is built on a civil law tradition, specifically on the Napoleonic Civil Code that the Quebecois inherited from their French ancestry. The Canadian system recognizes the validity of both, and in fact also incorporates other legal traditions into the mix by making Aboriginal customs such as healing circles and sentencing circles some of the legal options for people when working in or being processed by the legal system.

Where the common-law (or in Quebec the civil code) is deficient, or inadequate to deal with an issue, there is statutory law. Both federal and provincial (territorial) governments create legislation pertinent to the needs of that government and its population. This legislation is drafted by the cabinet or justice department of the government in question, it is debated in parliament and when it is enacted, it trumps the existing common-law in that realm (existing laws can be amended by the same process). In this system the federal legislature creates legislation for federal matters and the provincial legislatures for provincial concerns. This is precisely where many of the differences arise between the provinces in such matters as health care law and dealing with health and legal matters related to the study of bioethics.

The court system in Canada is similarly a divided provincial (and territorial) and federal affair. The provincial court systems manage civil disputes and criminal cases of that province with each province having a court of appeal to provide a review of decisions upon the request of one of the parties. There is a separate military court system. And there is federal court system that deals with federal issues (taxes, maritime laws etc.) that are not in the jurisdiction of the provinces. Ultimately the final court of appeal for all cases is the Supreme Court of Canada. Its nine justices (three from Quebec who are expert in the civil code) hear cases from all other courts (provincial, military, and federal). The SCC rulings are final, and some of the topics discussed in this text will be derived from judgements at this level.

Cases in Canada are either criminal or civil (not to be confused with the Civil Code of Quebec). Criminal cases are prosecuted by the Crown and offences are set out in the Criminal Code of Canada or other federal law. Persons prosecuted under the criminal code are guaranteed certain rights under the Charter and strict procedural rules must be adhered to. Disputes between individuals are civil disputes and the judges presiding over these interpret the relevant statutory law or apply relevant common law precedents. Here too, both of these types of cases will be seen throughout this text.


An introduction to the Canadian “system” tells only a small part of the story of Canada and provides only a part of the context that this chapter is intended to provide. A nation is its people, and Canadians are a diverse and often complicated bunch. Canada is a pluralistic society that has many facets and dimensions. Understanding this is essential to understanding its mores and values, and the ethics that emerge. A brief introduction to some of these concepts will aid in understanding some of the topics of future chapters.

1)    Multiculturalism In Canada

Perhaps the single most important characteristic of Canadian culture is that it is not one culture but many—Canada is often described as a cultural mosaic wherein each culture that contributes to its makeup retains something of its own identity within a larger system.10 The Canadian population is diverse and its racial, linguistic, and religious diversity are poised to continue to diversify in the coming years, according to analysis of the 2006 Canadian Census.  Diversity is based on three elements:  Canada’s Aboriginal population; its two official languages; and its ethnic racial and cultural diversity. Respect for and preservation of all of these elements are institutionally preserved by their entrenchment in the Canadian constitution.11

Most of the 33 million Canadians (67%) identified English as their “mother tongue,” and the second most commonly identified language was French (22%).12 Over a million people (3%) listed Chinese as their mother tongue, with many European languages and other Asian languages representing large segments of the population. While Canada is a primarily secular nation, it has a diverse religious makeup including Christian faiths (the majority) but with non-Christian faiths (primarily Muslim, Hindu and Sikh faiths) being increasingly represented. Ethnic origins are many. The largest percentage of Canadians identifies “Canadian” as their ethnic ancestry (10 million). This trend of a distinctly Canadian identity is on the rise, but it does not hide the fact that all (aside from the Aboriginal population) Canadians have relatively recently arrived in Canada—that is, relative to European, Asian and African cultures of the world. These immigrants trace their origins mostly to European roots, but Canada is now home to 1.3 million Chinese and a rapidly growing percentage of Indian and Middle Eastern peoples.  The great majority of Canada’s foreign born minorities live in Canada’s urban centres. Canada has a proportion of foreign-born people (19.8%) second only to Australia (22%) and is significantly higher than the US (12.5%) on this count.13

2)    Canada’s First Nations People

Canadian Aboriginal peoples include First Nations (often referred to as Indians in acts and statutes), Métis, and the Inuit. An increasing number or people are identifying themselves as Aboriginal, now First Nations Persons make up 5.4% of the population.11 As noted above, Canadian Aboriginal populations have special status preserved in the Constitution. Affairs of Aboriginal peoples including land claims and entitlement, health and welfare, self-government etc., are overseen by the Department of Indian and Northern Affairs Canada (DIAND).

Canada’s Aboriginal populations have experienced both the the positives and negatives of Canadian culture.  Constitutional and other legislative implements give them special status such as tax exemptions, access to reserve lands and housing benefits, health care benefits such as dental and extended medical benefits, and education benefits.

However, it is a black mark on Canadian history that the Aboriginal populations have suffered so much at the hands of the European colonizers. Theirs is a history of struggle and injustice. While it is beyond the scope of this text to recount this history, it is still pertinent to bioethics in Canada as the ripples continue to spread from the mistreatment, segregation, and racism that plagued the first centuries of Canadian history. In many ways Canadians continue to grapple with the past: this mistreatment and marginalization has left a legacy of ill health, social problems and vulnerability that influence many issues and topics in the chapters to come. Based on 2001 census data, Aboriginal peoples live five to ten years less than the average Canadians, and infant mortality is two to three times as high. Aboriginal populations attain lower levels of education, and hence have poorer employment opportunities. One third of Aboriginal Canadians have inadequate housing. They have much higher rates of communicable diseases and up to seven times higher rates of tuberculosis—this, coupled with inferior access to health care, compounds an already deplorable situation.14 Aboriginal populations have much higher rates of diabetes and other nutrition and lifestyle related illnesses. In addition, Aboriginal populations suffer much higher rates of substance abuse.15 Many of these factors contribute to social problems at the family level (such as family violence) but also at the community level.

3)    Attitudes And Opinions

While the above data inform the reader of some of the sociological aspects of Canadian multiculturalism, it must be recognized for the purposes of this text that multiculturalism is also an ideologically prescriptive concept, and a political perspective that generates policy.16 A shift began in the way multiculturalism was to be perceived by government. The federal government announced a policy that represented a departure from its previous attempts at “assimilation”— after 1971, “integration” of Canada’s various ethnic groups, and facilitation of these groups as full participants in Canadian society were the new objectives of policy makers. This was carried out in large part by including in the Charter explicit mention of the need for preservation of multiculturalism (section 27) and protection from discrimination (section 15).

A significant step forward in the recognition of multiculturalism as a Canadian value came in the form of the Multiculturalism Act of 1988.17 Canada was the first country in the world to enact a multiculturalism law.16 Endeavours such as these were geared toward a celebration of cultural diversity, and a means of enhanced intercultural tolerance and understanding. While further steps are of course necessary to improve cultural competence and fight racism and discrimination, Canada has played an exemplary role in creating action plans aimed at such endeavours.

That the federal government should have to implement such things as the 2005 Action Plan Against Racism betrays an important fact about any country with religious, linguistic, and cultural freedom of expression: in a pluralistic society harmony is strived for, but not always achieved. There has always been an undercurrent of apprehension about Canada’s growing ethnic diversity that is revealed in studies and forums that have been performed on the issue since 1991.16 This apprehension runs two ways, on one hand, for example, health care providers and institutions grapple with how far they must go in accommodating cultural preferences that run contrary to broadly held Canadian values (such as accommodating the views of a culture that retains patriarchal or chauvinistic attitudes toward women). On the other hand, and from the perspective of the minority, a prime example is the reluctance for the Quebecois to adopt multiculturalism wholeheartedly as they have struggled to keep their own identity intact (perhaps most strikingly evident in the fact that Quebec held referendums in 1980 and 1995—neither successful—on whether to secede from Canada). Despite these setbacks, multiculturalism is, overall, endorsed by the Canadian population, and proudly respected as part of Canada and Canadian identity.16

Canadian values are as varied as its culture, but as a nation researchers have endeavoured to pin down defining characteristics and values. Diversity and freedom were felt to define Canada in one poll in 2005. The Canadian Values Study found Canadians to be socially liberal (for example, not opposed to same sex relations) but politically conservative (for example favouring a government which is fiscally responsible to the point that balanced budgets take precedence over social spending), but conclusions drawn from this survey indicate that there are no single dominant viewpoints in defining Canadian values.18 While proximity with the US and similarities in the two cultures inevitably invite comparisons and speculation about cultural convergence, many researchers (and Canadians) feel the values of the nations are not only distinct but, in fact, ever more divergent.19

Attitudes toward access to health care is another defining feature of Canadians, and one that is particularly germane to understanding health care ethics. Attitudes toward health care are both difficult to define and vary by the questions asked and the way in which they are asked. Generally, Canadians support and defend their universal health care system, or at least prefer it over the health care systems of other nations, but that is not to say that dissatisfaction does not  exist with certain aspects of the system.

It is the Canadian public that initiated the cry for universal health care coverage throughout the middle of the 20th century, as will be discussed below. And the Canadian public remains steadfast in their support and defence of publically administered universal health care. Ninety percent of Canadians in a 2009 poll support, in principle, a single payer universal health care system and only a small minority would advocate for more privatization.20, 21 Overwhelmingly (80-90%) Canadians prefer their health care system to that of the US.21, 22 It is this enduring sentiment which prompted Canadians in 2004 to name Tommy Douglas as “The Greatest Canadian”23—Douglas was a  staunch social advocate, and as the leader of the Co-operative Commonwealth Federation party, he pushed through health care reform in Saskatchewan and became the “Father of Medicare”.

But beyond their love for universal health care are some other facts which speak frankly about the issues Canadians face with their health care system. Seventy percent of Canadians see their system as “working well”, but 28% of respondents felt it was not (the Quebecois were more evenly divided: 52% (well) and 43%(not well)).22 Concern over long waiting times and lack of access were seen as the key weakness of the Canadian system.21 But while wait times are the current concern, in 1998 the overwhelming majority was concerned with cut-backs and funding, not wait times.24 An annual survey (the Health Care in Canada Survey) continues to find that Canadians on balance are very happy with their health care system. In 2007 the survey looked at the public sentiment and the opinions of health care providers, and it is of significance that 57% of the public felt they were receiving quality health care, but 72% of physicians and 91% of health care managers felt that the public was receiving quality health care (all groups felt this was likely to improve in the next five years).24 While Canadians continue to support a single payer system in principle, there are a significant number who would agree to modifications such as user fees, and the introduction of more privately delivered health care services.25 There is little doubt that Canadian public opinion on health care has changed significantly over the last few decades; some scholars argue that public opinion has eroded so much they view health care (namely access to timely care) as being in a perpetual state of crisis.26 So, to summarise, establishing opinions on health care seems to be a difficult task that is dependent on how the questions are framed, who is asked and when they are asked, but it is clear that the evolving opinions on Medicare have provided impetus for change—this topic will be taken up again below in a discussion of health care reform. But first the discussion will turn to the current workings of Canada’s health care system.


The Canadian health care system has evolved over the last five decades to become an icon of Canadian culture and values. The fundamentals of the system are that it provides universal coverage for medically necessary health care services that are provided on the basis of need and not on the ability to pay. It is, in essence, not one system but thirteen (ten provinces and three territories) interlocking systems with federal funding but provincial and territorial and autonomy over health care delivery.27, 28

1)    The Evolution Of Medicare

The story of Canadian health care traces its roots to the origin of Canada as a geo-political entity. As discussed above, the Constitution Act of 186729 set out the constitution of Canada at the time. It was here that health care was established as a provincial affair, not explicitly (as health care is not mentioned specifically) but by default; the provinces were given responsibility for the establishing and maintaining hospitals, asylums, and charitable health institutes as part of their general oversight of provincial affairs. These health care institutions were provincially funded or were funded through religious organizations. Government instituted social insurance schemes were a European phenomenon that caught on in Canada only after World War I.30 During this period health care was largely delivered at home, or sought out by visits to the doctor’s office, and was paid for privately until the cost of such care (in a world where medical technology was advancing) was beyond the reach of most Canadian household budgets. The Great Depression saw an ever stronger public demand for government funded health care.

In 1947 Saskatchewan was the first province to institute province wide universal hospital care plan which was then adopted by many other provinces. It was not until 1957 that the federal government agreed to cost share in the funding of these programs under the Hospital Insurance and Diagnostic Services Act (HIDS) which incorporated the five principles of universal care that remain today as the conditions under the Canada Health Act for transfer of payment from federal to provincial governments for funding health care. The HIDS Act stipulated that health care programs must be publically administered, comprehensive, universal, accessible, and portable from province to province and by 1961 all the provinces and territories had agreed to HIDS Act programs which covered hospital and diagnostic services.27

But under the HIDS Act there was a gap in coverage for outpatient care, and once more Saskatchewan, in 1962, led the way in instituting coverage for physician care and outpatient services. This coverage was instituted nationwide by the government of Prime Minister Lester B. Pearson when parliament passed the Medical Care Act of 1966. By this act, and under the conditions noted above, the federal government would pay for 50% of health care costs of health care in the provinces. In 1977 the government abandoned the percentage scheme and began making “block payments” which allowed provinces greater flexibility in managing their health care programs.27

Further refinements to what had now become known as “Medicare” were made under the Canada Health Act of 1984 (CHA).31 This act consolidated previous legislation instituting universal health care, but it went a step further inasmuch as it also prohibited user fees and extra billing by physicians for insured services. The CHA is the centerpiece of Canadian health law and oversight and will be discussed in more detail below. It sets out the ground rules for the transfer of funds to the provincial care plans. Since 2004 these funds are transferred in what is known as the Canada Health Transfer. Significant changes to the health care system in Canada came in the form of a significant agreements between Canada’s first ministers in 2003 (called the Accord on Health Care Renewal), and in 2004 (called A 10 Year Plan to Strengthen Health Care). These agreements provided for enhanced funding via the Canada Health Transfer, and addressed perennial and pervasive problems in Canadian Health Care such as access to care, waiting lists, primary health care renewal, and new elements of coverage such as home care and prescription drug coverage for certain populations and certain health problems.

It is of historical and bioethical interest in examining the divergence of the Canadian and American systems. The Canadian system began its divergence from the system of its neighbour in the 1950’s and 1960’s. These decades were prosperous for both nations and a time for reflection on how to best manage health care for their citizens. Canadians, while not enamoured with the notion of communism, were nonetheless very suspicious of American free market systems when it came to fundamentals like health care. They chose Medicare in increments and not without significant friction from the medical community,32 but they chose Medicare as a system more in line with their values and more consistent with the British system (and Canadians did still identify with the British) of health care and governance which had long endorsed a more socialized medical system.

2)    The Single Payer System- Financing And Delivering Health Care

i.        Health Care Costs

Health care is expensive, and with scientific progress and new technological innovation, it continues to get ever more costly for developed nations that are fortunate enough to have cutting edge health care systems. The Canadian Institute for Health Information tracks statistics on just how expensive health care services are.33 Following global trends, Canadian health care costs rose in the last 3 decades, while absolute costs rose, a more meaningful measure to note is the cost relative to the wealth of the nation. In 1975 health care costs represented 7% of GDP but this had risen to 10.4% by 2005.34 Health care spending was estimated at $191.6 Billion in 2010 ($5,614 per person).35 This compares favourably with other countries in the Organisation for Economic Cooperation and Development (OECD). Using 2008 statistics, at 10.4% Canada ranked 6th out of 26 nations in health care expenditures as a percentage of GDP: behind France (11.2%), Switzerland (10.7%), Germany (10.5%) and Austria (10.5%) and well behind the US at 16% of its GDP.36 It will repay the astute reader to bear these statistics in mind in the discussion that follows regarding the health of Canadians.

Health care spending has changed over the past several decades in more than just absolute numbers but also in allocation of funds. Hospitals once accounted for 45% of health care budgets in 1975,34 but as health care has become more refined and delivered increasingly on an outpatient or day patient basis, this figure has dropped to 28% in 2008. Still, hospitals are responsible for the greatest health care expenditure. Physicians, which did account for 15% of the budget in 1975, only accounted for 13.4% in 2008. While this may seem a small decrease it nevertheless was responsible for knocking physicians from second place on the health care expenditures list to third place, as prescription drug costs overtook them weighing in at 14.6% of the health care costs in the 2007-2008 budget.34, 37 This last fact may seem perplexing: most provincial plans do not cover the costs of prescription drugs (as will be seen below) and Canada ranks 21st out of 24 OECD countries for funding prescription medication costs; and yet, while only 38% of prescriptions are publically funded in Canada, this represents 14.6% of the health care budget.37 These facts influence the ethical issues surrounding health care delivery in Canada and will be taken up again in the second part of this chapter.

ii.        Paying The Payer

It should be noted at the outset that although health care costs are “free” at the point of use, the payer (the government) must secure the means to fund the enterprise. Canadians pay for their health care system through a broad based tax structure. The tax structure includes personal income taxation, corporate taxation, and provincial and federal consumption taxes including a federal Goods and Services Tax (similar to the Value Added Taxes in other nations). In addition to this, the governments of British Columbia and Ontario finance their health insurance plans through the institution of health care premiums imposed on residents of those provinces (with exceptions made for persons in lower income brackets, the elderly, and Aboriginal persons). Alberta did away with its premium system as of January 1, 2009.

iii.        The Institutions and Providers

Health care in Canada is not socialized medicine.26, 38 Most primary care is delivered in private clinics. Physicians, in most circumstances, bill provincial health plans on a fee-for-service basis. Fees are set by negotiations between the provincial medical associations and the provincial governments. The Canadian system is relatively unique in that it prohibits physicians from billing private insurance companies for services insured by provincial health plans.39, 40 This effectively ensures the single payer mechanism for services deemed essential, and prevents health care providers from establishing a two-tiered system of care or creating a private arm to the public system of payment. Physicians, for their part, build or shape their own clinic space and pay a portion of their billings as office overhead to maintain these clinics. In larger centres, clinics can be owned and managed by groups of physicians, investors or large health care management companies, and again, physicians give over a percentage of their billings to these companies.

Physicians are not commonly on hospital payrolls and, as noted above, are paid by fee-for-service arrangements with the province’s health insurance plan. This arrangement is changing as more hospitals employ salaried or contracted emergency physicians, hospitalists (physicians responsible for the day to day management of inpatients), and physicians that have academic and teaching affiliations (many of these physicians are also involved in research). Many of these hospital employed physicians are paid by hospitals directly or through “alternative payments” arrangements with the provincial health service. In addition, alternative methods of payment for physicians exist outside hospitals, for example payment of physicians in the military, payment of physicians employed by workman’s compensation organizations, or payment of physicians that have negotiated alternative funding for unique clinics such as community health clinics or clinics in remote areas.

In professions that negotiate wages with the government there must be a representative and bargaining organization to act on its members’ behalf. For the practice of medicine, each province has a medical association whose membership consists of voluntary membership of physicians. They are governed by elected members with the purpose of representing collective views of that province’s physicians in fee and salary negotiations. In this way, physicians negotiate, to some extent, their own fee schedules and alternative funding arrangements.

Traditionally, hospitals were places for the poor to receive care and were largely charitable institutions; but as the delivery of health care became more complex the hospital became a place to facilitate increasingly technical health care needs. Canadian hospitals are operated by community based boards and organizations,27 and these organizations may have religious affiliations. Hospitals are paid through annual budgets negotiated with the provincial government, sometimes a regional health authority acts as an intermediary in this process as it may oversee the budget of more than just hospitals. The funds that are paid out by the provincial government are for “global” hospital budgets, i.e., the total operating costs of the hospital for a given year. These costs include buying and maintaining hospital diagnostic and therapeutic equipment, building and maintaining specialized treatment environments such as the operating rooms and the hospital wards, and paying hospital employees’ salaries. The employees include nursing staff, administrative staff, rehabilitation experts such as physiotherapists and occupational therapists, pharmacists, nutrition consultants, counsellors, social workers, maintenance and other operations personnel etc.

Many of these health care professionals found in hospitals are also to be found in private clinics outside hospitals. These professionals (such as physiotherapists, pharmacists, audiologists, speech and language therapists, dieticians, etc.) run private clinics and bill patients directly—the difference being that if their services did not occur in a hospital they are deemed non-essential by the standards set at the birth of Medicare. Most dentists are in independent practice and, except for procedures that must be performed in a hospital operating room, bill their patients directly to earn their living and finance their clinics. There are health care workers such as podiatrists and chiropractors that almost always bill privately but use hospital based resources such as operating rooms and diagnostic imaging services.

This prolonged discussion on the financing of health care professionals and hospitals is somewhat necessary to understand the complexities of the debate over private health care which will be discussed in the second half of the chapter.

iv.        Insuring Consumers and Ensuring the Delivery of Health Care

Once again, the cost of health care in Canada is formidable and it would be impossible to conceive of an individual being able to afford, “out of pocket,” anything but the barest of essential primary care costs. And yet, the delivery of health care in Canada is still largely consumer driven, open ended and there is (in theory) unfettered access to primary care. Canadians themselves determine when they need health care, and they themselves initiate contact with one of the many primary health care providers listed above. Again, costs for visits to the family doctor and for diagnostic services are covered under the provincial health plans, and many of the costs for other services by other primary care providers (such as dentists and chiropractors) are not, unless the patient has private or supplementary insurance. To return to the Canada-US comparison, there is a broader primary care base in Canada with approximately 50% of Canadian physicians providing patient initiated general, care compared to the 35% of American physicians that provide primary care.39 In Canada, this favourable mix is intended to ensure timely and appropriate access to both primary and specialist care.

Care within the “primary” domain includes things such as basic emergency treatment, coordination with more specialized or inpatient care, basic mental health services, primary maternity care, and basic healthy-child developmental care and maintenance. Primary care also extends to such things as palliative care. Diagnostic services, such as blood tests and diagnostic imaging, are often requested or initiated by primary care providers and these are performed in private facilities or hospital based facilities. As noted above primary care providers are often accessed in privately operated clinics but Canadian family physicians often manage the care of their patients in hospitals as well. Family physicians and general practitioners often provide the bulk of emergency care and inpatient hospital care in rural areas.

Patients are often referred on for more specialized care from their primary care providers. This includes specialist visits and diagnostic workup initiated or suggested by specialists. This care can be provided in outpatient settings, again in private clinics or facilities, but often it occurs in hospital based settings. More advanced secondary inpatient care often occurs in hospitals (but it can occur in nursing homes or hospices etc). This type of inpatient health care is covered under the provincial health care plans. Some secondary care occurs in specialized institutions associated with hospitals such as extended supportive care to the elderly or disabled. Such extended care is covered by the provincial health care plan but the “room and board” is covered by the patient, or his or her private or ancillary insurance, with some variable subsidy by the province. Some specialized secondary care is provided by home care with specialized nursing support, and while this is often not covered by provincial plans, it is often subsidized by the province or territory.

In principle, all Canadians receive the same basic health care. Aside from geographical barriers (such as delivery of health care to remote areas), for insured services, health care is the same for every socioeconomic stratum; there is no more or less for persons in any financial bracket. But as can be seen in the above discussion there are a number of gaps in the system of provision of services for citizens. This topic will be taken up below, but it should be noted that many “non-essential” services (services such as such as optometry, counselling services, some rehabilitation services, and comprehensive prescription medication coverage) are deemed essential enough to grant certain groups access to them through enhanced coverage under provincial plans. These groups include the poor, the elderly, veterans, those on disability pensions, Aboriginal people and certain individuals whose health care costs would be prohibitively expensive without exceptional provisions being made (such as persons with HIV/AIDS who could not afford antiviral medications, or persons with disabilities that would not be able to afford devices like wheelchairs).27

In 2005, seven dollars out of every ten spent on health care was paid by the public health services plans, but that still leaves $3 out of every $10 to be covered by the consumer or his or her private insurance.34 It is of great significance to many of the issues in the second part of this chapter that the Canadian system is unique in the world as the only country to ban private insurance for publically funded health care (i.e., that health care which is provided under provincial plans).41 To cover the costs of those uninsured services that are not provided through the above noted add-ons to the provincial plans, many people buy or receive extended health coverage through private insurance arrangements. This can include privately purchased insurance plans and products from an assortment of Canadian and international insurance companies or group plans arranged through the employer and underwritten by the employer or paid for through payroll levies. These plans frequently cover costs such as prescription drugs, rehabilitation services and psychological counselling services.

In a related manner, workers are insured for their health care for injuries or illness arising from their work through the Workers’ Compensation Board. The financing of this endeavour is by payments from employers (not government) into the workers’ compensation agency of each individual province and this agency then pays for the health care costs of the worker.42

Approximately one million Canadians receive their primary and supplementary care directly from the federal government. These include First Nations people living on reserves; the Inuit; serving members of the Canadian Forces and the Royal Canadian Mounted Police; eligible veterans; inmates in federal penitentiaries; and refugee protection claimants. 27 First Nations and Inuit people, as noted above, have specific needs and particular health and social problems that are also addressed by health care funding at the federal level and through the government department, Indian and Northern Affairs Canada.


i.        Government

The Canadian constitution stipulates the administration and delivery of health care at the provincial level, but this by no means excludes the federal government from a significant role in the provision of health care. First and foremost, health care costs are disbursed to the provinces out of the federal budget and according to the principles of the Canada Health Act (CHA). But, as noted above, the federal government retains direct jurisdiction over certain aspects of health care delivery to certain populations (armed forces, First Nations etc.). The federal government is also responsible for public health protection and regulation through Health Canada, a federal department. Health Canada regulates the research and marketing of health products and pharmaceuticals, food, and medical devices, and it is also responsible for consumer safety. In addition, the federal government also institutes health promotion programmes and health research. Finally, the federal government works in concert with provincial governments in disease surveillance and protection.

In summary, the medical system in Canada can best be thought of as a network of health systems. The ten provinces and three territories oversee their own health care systems independently of each other, even though they are financially dependent on federal funding. For their part, the provincial and territorial governments develop and run the care plans that directly serve Canadians. The insured services of the provincial plans (hospital and physician services, as well as diagnostic services) are detailed above. Hospital budgets are negotiated with the provincial government and each province’s medical association negotiates fee schedules for its physicians. The provincial government sets out legislation and regulations regarding the delivery of health care and where this can be done,  and each province legislates the prohibition of private insurance covering publically insured services (points that will be revisited below in a consideration of private health care delivery in the single payer system). Finally provincial governments enact legislation in each province for workers’ compensation organization (Workers’ Compensation Board).

Somewhere beyond local health care administration, and just short of the provincial governments, lie the health regions. Public dissatisfaction in the 1980’s and 1990’s led to several task forces and other mechanisms of health care research that aimed to improve cost savings, integration of services, increase the accountability of government, enhance public input, and enhance equity. The upshot was the creation of health care regions.43 This represented a devolution of health care authority from the province to administrative structures within geographic and demographic regions. Regionalized health care administration has now been taken up by all ten provinces in Canada with Ontario being the last to establish this structure. Regional boards are distinct from government and yet report to the provincial ministers of health.

This regionalization of health care has both advocates and critics. Advocates argue that another layer of health care governance is necessary to achieve the above named objectives (savings, integration of services, accountability, public input and equity). Regionalization also has critics. They see an increase in bureaucracy, the relinquishing of local control over hospitals, and the fact that health care providers (physicians etc.) are largely unaffected and unregulated by the process. To them, this has meant further harm to a system that needs healing.26, 43

ii.         The Charter, the Canada Health Act, and the Provincial Legislation

A clear understanding of health care governance and oversight is connected to an understanding of the Canada Health Act (CHA). While it has been mentioned many times in the preceding discussion, a digression is in order to outline the purpose and scope of this important piece of legislation and its influence on health care in Canada. The necessity for the CHA springs from the Constitution, which, as was noted above, stipulates the devolution of authority over hospitals and health care institutions (as well as health care providers) to the provinces. The CHA, despite the fact that it has become something of an icon representing the health care system in Canada, actually has no provincial or territorial jurisdiction per se, nor can it influence the way health care is delivered in the provinces. But its influence is, nevertheless, very significant inasmuch as it is the legislative tool that can control the purse strings of funding.

In order to receive funding, the provincial health plans must meet the five criteria of the Canada Health Act, and these criteria are, to a large extent, what defines health care in Canada and the notion of “Medicare”. These include:

  • Public Administration: Provincial health plans must be publically run and operate on a non-profit basis. It is important to note that the CHA stipulates that the province establish health care insurance, but it does not stipulate that the provinces must create the means of health care delivery. Just who can provide services is not restricted by the CHA, but essential health care services that are provided must be insured by the provinces and territories.
  • Universality: Provinces are to insure health care for all of their residents. No person can be excluded because of pre-existing or serious health conditions, or inability to pay. Perhaps more importantly, no person can opt out because of good health or financial well-being (and financial well-being will mean a higher income tax contribution to the system).
  • Portability: Health care insurance is portable from province to province, but once residency is taken up in another province, the individual then has to apply for health care insurance in the new province of residence (typically after three months).
  • Comprehensiveness: The CHA requires the provincial insurance plans to underwrite the cost of all medically required services. Defining what is medically requisite has been an increasingly troublesome issue in recent years as the increasingly long menu of health care options requires difficult decisions by provincial health administrators. This topic will be taken up below in the discussion of necessary versus elective treatment. In short, the provinces have, essentially, a list of health care services that must be funded including hospital stays, most diagnostic services, and physician visits (see notes above regarding the delivery of health care).
  • Accessibility: Not only must health care be comprehensive, it must be accessible. In defining what this means the CHA uses the phrase “reasonable access” to compel provinces to take responsibility not just for providing care, but providing adequate care.26 Owing to the great difficulty in rendering this into some sort of objective criterion, this is another source of controversy and ethical consternation that will be taken up in Part II of this chapter. In short, each province is bound to deliver insured health services in a timely fashion and have procedures for reviewing waiting times etc. It is also through this criterion that the CHA prohibits user fees and “extra-billing” (surcharges for insured services by the service providers); it does so by penalizing provinces that don’t prohibit these activities.

These five criteria hold sway over the provinces inasmuch as they effectively control the Canada Health Transfer (the transfer of funds from federal to provincial governments). It is notable, and perhaps a tribute to the effectiveness of the CHA,  that no province has been penalized or had money withheld (aside from temporary matching deductions for provinces in the past that continued to allow user fees) for violation of the five criteria.26

Provincial legislation, pertaining to health care in the provinces, takes many forms. First is the many and varied and exceedingly complex provincial legislation that details the creation and maintenance and accountability of the various provincial and territorial insurance plans. These will not be discussed herein, but to note that they do exist in every province and territory. It is important to note that despite the fact that the provinces do not pay for all medical services, they do still regulate all health care services (or at least delegate that duty to the professions themselves as will be seen in the next section). In addition to enacting legislation that ensures accordance with the CHA, each province has extensive health care legislation and regulations to deal with other aspects of health care. These include hospital acts, privacy and information acts, regional health care authority acts and regulations, mental health acts (to govern rules and regulations around such things as involuntary confinement), tissue and organ donation acts, public health acts (to manage such things as communicable disease outbreaks etc.), and, as will be discussed presently, legislation regarding professional self-regulation. The organizational structure and the scope and overlap of these various acts and regulations vary enormously between the provinces.

iii.        Professional Self-governance and Regulation

Regulation of health care professionals is necessary, but the anatomy of that regulatory process is a complicated affair. Ignoring for the moment the notion that regulation is for the private interests of the professions (a notion that is often contemplated among the lay population), and instead embarking from a platform that self-regulation is indeed in the public interest, there are broadly speaking, two kinds of regulation: input regulation and output regulation. The first of these serves to regulate admissions to the profession, and the latter is a means to regulate quality of services provided.44 What follows is a brief look at each and the means by which they are achieved in Canada.

Justification, or argument in favour of self-regulation, leans heavily on the highly specialized training that gives the professions certain skills that are not present in the general population or in other regulatory bodies such as the government. Consumers of health care do not, and cannot be expected to, have the knowledge to adequately evaluate the available products when they seek a remedy for their health concerns. Health care professionals have that knowledge, and can adapt it to evaluate performance and the requirements for admission to their profession. Arguments against self-regulation focus on the degree to which the professions use self-regulation to their own ends by restricting admission and accreditation thus ensuring their privileged place in society as providers of an essential service. This can be played out in the form of under-regulation (or poor regulation of professionals intent on profit), and can also potentially play out in the form of over-regulation (the goal being to limit the number of professionals entitled to share finite health budget funds). In Canada, as in other countries such as the UK and US, the government has been swayed by the positive arguments that self-regulation is justified and appropriate for health care professionals.45

Professional self-regulation and oversight is enabled by health professions acts in each province and territory. Interestingly, the requirement for these acts springs also from the Constitution which stipulates that trade of goods and services is to be governed by the provinces independently—where goods and services are broadly construed to include professional services such as health care provision.26 These acts empower professional colleges in each province to oversee licensing of its physicians nurses and other health care professionals. These health professions acts are of three types.

The first type is a framework mechanism whereby a Health Professions Act (usually a statute by that very name) is employed to set ground rules for how a professional college is to regulate itself. The professions (nursing, medicine, dentistry, physiotherapy, and psychotherapy to name a few) are enumerated in the act, and the act gives power to the said professional college to oversee its profession along structured and principled ways also outlined in the act. These acts enable the creation of specific Colleges (for individual professions), and the Colleges then establish the input regulation criteria—the knowledge, and skills—of its professionals that are required for membership (i.e., a licence) to be granted. These acts also outline the ways that the professions are to manage complaints and disciplinary procedures and actions, again enabling the Colleges to manage the details within their own professional domain. It is by this means that the acts also manage output regulation, or again, more precisely, compel the various Colleges to monitor their own output regulation. Between input and output regulation is accreditation, and ongoing competency evaluation. The acts entrust to the colleges this regulatory function as well—each of the Colleges is required to ensure quality and ongoing competence of its members. Provinces and territories that employ this framework, and this umbrella type of legislative tool (the Health Professions Act), include: British Columbia, Alberta, Ontario, and the Yukon.

Saskatchewan, Manitoba, and the Maritime Provinces approach input and output regulation through a different mechanism. Instead of one act providing a framework for all the professional colleges to follow, there is an independent statute for each professional college. The separate Colleges then regulate the licensure, ensure the competence, and undertake the disciplinary measures (the input and output regulation) of its professionals according to the criteria set out in each of the individual acts as outlined above. In principle this plays out the same ways as the provinces that employ “framework” statutes, but in practice there are inter-provincial and inter-collegial differences.

A third means of legislating the self-regulation of professions is found in Quebec, which has a Professional Code which recognizes 45 Professional Orders (each discipline or profession has its own order) to carry out the regulatory functions. These Orders monitor input and output of the professions by ensuring licensure conforms to the Code, and that discipline is meted out to those who violate the code.

Discipline is generally of three types within a professional college. Misconduct refers to conduct that is unacceptable within the scope of that profession’s goals or duties (for example, breaching confidentiality, overbilling, sexual relations with patients etc.). “Conduct unbecoming” is conduct which is beyond the scope of professional duties but is nonetheless unacceptable for attracting disrepute to the profession (examples include addiction or criminal activity). The third type of misconduct is professional incompetence which is typically established by the professional college after conducting an investigation of one of its members. Public complaints or peer reports of misconduct that implicate a professional member in misconduct spur a College investigation.  If misconduct is found, hearing and disciplinary measures follow, with mechanisms for appeal also in place.

Of course this procedural mechanism within the professional self-regulation scheme stands apart from litigation that occurs in the Canadian justice system. Physicians and other professionals are liable for their actions beyond just the structure of the medical system, and the civil liability of physicians (litigation or fear of litigation) is a form of regulation. This form of regulation stands apart from the self-regulation and the professional colleges per se, but the colleges nonetheless cooperate with the judicial system.

The various professional colleges generally function in licensing and registering their members, but beyond licensing and registration, there is also accreditation which the colleges typically ensure, but to a large extent, the actual accreditation function is taken up by the bodies responsible for education and training of those professionals. For example, The Canadian College of Family Physicians oversees the accreditation of Family Physicians in Canada and The Royal College of Physicians and Surgeons oversees the accreditation of specialists. Both of these Colleges, while not regulatory within a provincial scope, do ensure consistency in skill and knowledge on a national level by administering national accreditation examinations, and enrolling members in continuing medical education schemes and offering professional improvement programs.


Canadians are healthy. Understanding the health of a nation and the health of its citizens is a complicated affair, but a few significant facts can be established and this will aid in establishing a more thorough understanding of some of the issues facing Canadians. Some of the measures that go into an evaluation of the “health” of a country are things such as longevity, infant mortality and per capita health care expenditures. But more than just absolute numbers are important, and the trajectory of a nation’s health status must also be examined. What follows is by no means an exhaustive treatment of the subject, but will serve as an introduction to what is, in essence, a much more complex study.

Canadians have a life expectancy of 80 years (83 for females and 78 for males) and an infant mortality rate of 5.1/ 1,000 live births according to Statistics Canada data for 2007 (more recent OECD data follows).46 Health care expenditures account for 10.4% of GDP in 2008.36 It appears that Canadians are happy with their lives; nine out of ten say they enjoy good health.47 Canadians also seem to be on a good trajectory in terms of their health. Even between 1996 and 2006 life expectancy in Canada improved from 78 to 81 years; smoking rates have  decreased to a national average of 19% in 2007 from 24% in 2000; and levels of major diseases have also been reduced, for example heart attack death rates dropped 30% between 1998 and 2004.37

Canadians are healthy compared to the rest of the world. To place some of these health measures in context, Canadians compare favourably with the Organisation for Economic Co-operation and Development (OECD) countries. As noted above, their health care expenditures are above the OECD average of 8.9% ranking 6th out of the 30 nation OECD membership—this amounted to $3895 (in USD) for every man woman and child vs. the OECD average of $2984.48 Interestingly, Canada is alone in North America in providing the majority of its total health care from public coffers, the US and Mexico provide only 45% of health care costs through public spending and Canada provides 70%.49 Perhaps more importantly, this 10.1% of GDP output (while it only amounts to 70% of total health care costs) seems to buy Canadians relatively good health comparatively (according to OECD 2006 and 2007 data): their longevity of 80.7 years was 1.5 years higher than the OECD average (2.5 years higher than the US) and infant mortality of 5.0/1000 was almost equal to the OECD average of 4.9 (and well below the US average of 6.7).49 But the expenditure on health care has not provided everything. Canada has fewer physicians, 2.2 per 1000 population in 2007, than the OECD average of 3.1. And it had fewer acute care hospital beds 2.7 per 1000 (the same as the US) compared to the OECD average of 3.8 per 1000; and fewer MRI scanners 6.7 per million vs. 11 per million on average. Lastly Canada has a higher obesity rate (15%) compared to the OECD average, but still well below the US rates of 34%.49

These numbers revealing relatively robust health overall, do betray the truth of some of the inequalities among Canadians. These differences are played out regionally, for instance, Newfoundland and Labrador residents are hospitalized twice as often as British Columbia residents for heart attacks.37 Discrepancies are expected among gender, age and socioeconomic status, but the scale of the discrepancies found among Canadians goes beyond the expected with some Canadian inner city populations having 10 times the likelihood of poor health or elevated health risks compared to other neighbourhoods within the region.37 The often deplorable state of health of Aboriginal populations has already been alluded to. It is these things that crystallize some obvious ethical issues and provoke some obvious questions, so it is at this point that discussion will turn to the second part of this chapter, an examination of some of the bioethical issues that manifest at a national, societal level.


It will be often stated in this text that the study of bioethics worldwide is significantly informed and heavily influenced by American theory; if there were a cradle of bioethics as an independent study, arguably that cradle would be in America. These facts have influenced Canadians if for no other reason than for Canada’s geopolitical proximity and cultural similarity to the United States. But the American way is not the Canadian way, and American and indeed globally derived bioethical theory can only go so far in addressing Canadian problems. That is, in large part, the point of this text. While the remainder of the book focuses on the particulars of bioethics in Canada in certain domains of bioethical topics, there are some significant distinctly Canadian topics that emerge out of the above discussion of Canada as a nation. These are topics of a national scope, problems that derive from the Canadian style of governance and legislation, and the Canadian style of health care delivery. These will herein be introduced and discussed, but their treatment will be brief as they involve several diverse and complicated realms of study (including sociology, cultural anthropology, political studies, health administration and public health studies, and law… to name a few). The curious and diligent reader is directed to texts in these specialized areas to furnish some of the details. These topics are introduced in this section because they will emerge later in this text in other forms, and they do colour the topics of the chapters ahead. In addition, these topics raise issues that define Canadian values and influence the trajectory of the nation and its people. This section is the topography of macro level problems.


Health care disparities have become a topic of intense study over the past few decades. The reasons for disparities and a detailed analysis will be left to the students and scholars of public health and health administration, but it is important to outline some salient features of these disparities in order to add context to some of the topics discussed in this and future chapters. There are health and health care50 disparities in all cultures and all nations of the globe and Canada is no exception; some of these are alluded to in the above discussion. While this list is not exhaustive, disparities in health and health care access can be found along certain parameters such as geographic location, race and culture of origin, and socioeconomic status, and these will be touched on. Perhaps the biggest and most obvious disparity exists between Aboriginal populations and the rest of Canada, and this will be elaborated on as a paradigmatic example.

Much of the above discussion has highlighted one of the central themes in the Canadian health care system—that it is focused on equity and fair distribution of resources according to need. Indeed it is this focus that has been the impetus behind the creation and development of the single payer universal system that exists in Canada. Arguably, the universality of the system has done much to limit inequities in health care access and delivery. Canada’s proximity to the US has lent to advantages in studying this phenomenon; as the two countries are often compared so too, the health care systems invite comparison. In one study and survey Canadians are more likely to have access to regular care and have a higher level of satisfaction with their health care access and delivery (although on this last count the differences appear to be diminishing). Furthermore, Canadians had less racial, gender, and socioeconomic disparity and this too was attributed to universality of the Canadian system.51

But universal health care is not a panacea. There remain striking differences in the health of Canadians and access to care, differences that the student of bioethics should be aware if their redress is ever to be achieved. There are wide variations in socioeconomic status among Canadians, even though Canada has a large “middle class” and enjoys a national income per capita ($37,969 in 2007) that places it fifth among OECD nations.49 These variations in socioeconomic status are responsible for many health woes among the impoverished. Poorer people, and people living in poorer neighbourhoods, have worse health in the form of chronic diseases and are more likely to engage in harmful behaviours (smoking, sedentary lifestyle etc.) which, of course, lead to other deleterious health outcomes. Cycles of poverty seem to be the root of some of these problems as people in poorer neighbourhoods or regions have less opportunity to access the advantages of better food, shelter and education.52 But the problem is likely much more complicated than just poverty. There are a number of “social determinants of health” that contribute to a “health care gradient”- people of lower socioeconomic position have disproportionately worse health. These social determinants include not just income and access to health services, but things such as job security, early childhood development, food insecurity, social isolation, housing, and social safety nets (the latter including things such as employment insurance, family allowances, social assistance, retirement pensions and other systems created to ease the burden of vulnerable people through transitions in life such as having children or job loss or retirement).53

The discrepancies between the health of the impoverished and the wealthy could have another dimension that may become more evident in the coming years. The single payer system, as was noted above, covers some 70% of health care costs, the remaining 30% is left to the means of individuals. Obviously persons of lesser means have fewer opportunities, and as the cost of health care increases and gaps between those services insured under Medicare and those uninsured services grow. It is Canada’s impoverished that may feel the pain more acutely—in a system that is not already “two-tiered” adding a second tier in this way may deal an additional shock to the underprivileged.

Canada is a large nation geographically and there are significant regional variations in health and health care access. For example, British Columbians seem to enjoy better health and have a lower incidence of risky health behaviours— British Columbia ranks highest among Canadian provinces in terms of many health measures and has a life expectancy some three years greater than Newfoundland and Labrador.54 But geographic differences are not responsible in and of themselves for better health, in fact differences among provinces evaporate when populations of the same socioeconomic status are examined. To illustrate, the health of the poor in British Columbia (the “healthiest” province) is the same or worse than the health of the poor in other provinces. Quebec, however, has been commended on focusing on the needs of the poor and has been repaid by such investments inasmuch as its poorer citizens are the healthiest among their cohorts in other provinces.54 It is analyses such as these that lend to the notion that addressing health care disparities themselves will not relieve inequities of Canada’s vulnerable populations, but rather it is addressing the socioeconomic factors that contribute to poor health that will win out.52, 54 For example, fighting obesity, diabetes and heart disease etc., while laudable, may not be enough in improving the health of Canadians, and addressing and improving the lot of the marginalized, the vulnerable and the impoverished may lead to greater improvements overall. It is here that studying peoples and their diseases goes beyond sociology and biology, and enters the realm of morality—and gains legitimate entry into a bioethics textbook.

Other health care disparities exist moving both east to west and north to south in Canada.55 The health of rural Canadians is poorer than urban Canadians. Rural Canadians have significantly higher rates of cardiovascular and respiratory disease, and have higher incidences of traumatic injuries; all of which contribute to a lower life expectancy and a higher mortality rate. While lower socioeconomic status is thought to be the significant factor in this disparity, access to health care is also cited as a contributor.56 In a similar vein, there are discrepancies between the provincial health insurance plans that translate to unequal treatment amongst Canadians. For example, Quebec will not reimburse its citizens for health care costs incurred by them outside the province at rates that are higher than its own fee schedule thus forcing the Quebecois to foot the bill for the shortfall if they are travelling or studying outside the province. Moreover, there are significant differences between provincial health care plans for the funding of prescription drugs, so Canadians with the same disease process may have a relatively little, or a relatively great, financial burden depending solely on the province they are fortunate or unfortunate enough to reside in.57 There are wide variations in funding and infrastructure for reproductive services, most notably abortion services, with some provinces providing easy access to clinics, and others with no clinics or, in fact, charging facility fees to women who need abortions.58

Finally, even in Canada there are also discrepancies between the delivery of care to men and women in Canada. A recent study showing poorer access to ICU’s leading to poorer outcomes in women (especially older than 50) with critical illnesses, is sadly consistent with trends in many industrialized nations.59 This is but one more disparity among many that see socioeconomic factors, gender, race, and geographic location factoring into the delivery of health care when in fact, a just and universal health care system should see none of these playing a role. Arguably, Canada’s universal health care system is less than universal when viewed through this lens.60 Clearly, these things seem to run contrary to the universality, accessibility, and portability which the Canada Health Act endeavours to ensure.

Nowhere are health disparities seen more clearly than among Canada’s Aboriginal population. While Canada is a marvel as a multicultural and pluralistic society that promotes equality and acceptance, it has been a black mark on the history of Canada that has seen it treat its First Nations peoples with systematic oppression and discrimination that began with colonization of Canada as far back as the 17th Century. Health among Aboriginal populations has been described by a senate committee studying the health of Canadians as “a national disgrace”.61 Aboriginal people have much higher incidences of chronic diseases such as diabetes, and die more often (and much younger) of accidental and violent injury, and from suicide. The lifespan of an Inuit man in the Nunavik region in northern Quebec is, on average 15.8 years less than the lifespan of a man in Richmond, BC.55 Once more, it is largely owing to socioeconomic factors that lead to these poor health measures, and once more, it is often stated that measures to improve access to the goods of society (housing, employment, education etc.) may be the most important way forward in addressing these inequities.52 Federally funded research has been touted as the most important element in improving health status of Aboriginal Canadians.61 The Canadian government continues to implement measures to directly confront the inequities in health care delivery to Aboriginal peoples.62

This brief discussion of the plight of Canada’s Aboriginal population is inadequate in fully explicating a complicated problem that spans many academic fields, and this brief discussion cannot compare to the oceans of ink which have rightly been spilled on this topic. The point to be made in a bioethics text is that this issue is significant enough and grave enough that it transcends sociological political and economic considerations, and in fact there are certain moral considerations that come to bear on the issue of how members of society ought to treat one another.

Interestingly, values held by many of the Aboriginal cultures themselves may point the way in resolving some of these issues. While it is impossible to generalize across such a diverse group of cultures, pluralism and an acceptance of a wide spectrum of values is a consistent feature among First Nations value systems—clearly these attitudes are essential to resolving some of the inequities between Aboriginal and non-Aboriginal people. Most of Canada’s many cultural groups are informed by a distinctly Judeo-Christian understanding of morality and ethics, Canada’s Aboriginal population, of course, did not participate in the formation or development of this tradition at its inception. Aboriginal ethics is in no way mutually exclusive of other ethical paradigms, but traditional values among First Nations peoples often revolve around such things as holism and balance between mental physical and spiritual health, community and family based decision making, and quality of life over the pursuit of cures for illness.63 Once more, all Canadians would do well to look at these values, both in understanding Aboriginal cultures, and in resolving disparities in a manner commensurate with their value systems.


The Canadian health care system is organized along a regionalized model. That is, it has a broad base of primary care providers and services to serve the needs of the greater population in many small areas, and there is more specialized care located in select areas in order to provide such services to the wider population in a larger geographic region. The notion of primary care at the local level (for example, doctor’s offices and clinics in rural or urban settings), secondary care at a district level (larger clinics or smaller hospitals in small cities and suburban areas), and tertiary care being available in select areas in a larger health care region (large specialized hospitals usually in major urban centres and often tied to teaching and research centres such as universities). This system is similar to the National Health Service model of the UK, and it is in stark contrast to the American system that sees all levels of care dispersed throughout the nation, each provider in “competition” with other providers.64 In theory this should mean timely and appropriate health care access to the entire nation, but as more and more care requires a higher degree of technology and more specialized diagnostic and treatment options, access is becoming more limited.

This access to care is in some ways built into the cost control measures of the universal health care system. While Americans with insurance enjoy access to more investigative and interventional services, it comes at great cost to the payer (individuals paying out of pocket or paying into health insurance) and it means many Americans cannot afford access to care. Much of the impetus behind creating Medicare in Canada in the first place was derived from a sense of repugnance to this state of affairs (as was discussed above). Thus was born the universal health care system, but thus was also born the problem of managing costs in such a system. Universal care could not be entirely without limits: where Canadians limit their health care spending is largely by controlling which services are insured, and the quantity of those services available. Roughly speaking, access determines limits to spending. In America, if you can pay you do not wait; in Canada you need not pay but often you must wait. Most health care in Canada is delivered not according to ability to pay, but is based on equity and delivered based on need for services.

There was what some call a “golden age” of Medicare in Canada throughout the 1970’s and 1980’s30 that was then eclipsed by disparity between the costs of health care and the available funding. The costs of health care increased throughout the OECD nations in the last 30 years, and the percentage of a nation’s GDP that it spent on health care rose accordingly—the growth of health care costs rapidly outpacing growth in GDP.65 In Canada, throughout the 1990’s, this meant ever lengthening waiting lists and, relatively speaking, shrinking resources. Medical innovation and the standard of care have risen sharply, and the funding has not been able to keep pace. Waiting lists and access to care became the single most important issue to Canadians concerned about health care —and the one that gave them the greatest dissatisfaction with the health care system—by the time an important commission (The Commission on the Future of Health Care in Canada, headed by Roy Romanow) was struck to study health care reform at the dawn of the new millennium.

Where this economic and political issue becomes an ethical issue is in how the government has addressed the issue—how the government has responded to its people. In 2004 the first ministers also considered timely access to quality care to be at the top of their agenda and undertook bold measures to study and implement change in order to improve health care. A “Federal Advisor on Waiting Times” was appointed and actual benchmarks were established for services such as cancer treatment, joint replacement surgeries, vision restoration, and cardiac care procedures.66 Since 2003, significant health funding increases were put in place to enhance access. The provinces were asked to meet or exceed these benchmarks and the Canadian Institute for Health Information (CIHI) was tasked with compiling the data. For 2009 the CIHI reports that 79% of patients across Canada are now receiving radiation therapy within the 4 week “benchmark” and more than 90% get their cardiac bypass surgery within the established 26 week benchmark; joint replacements are lagging but wait lists here too are shrinking.67 Compared with their neighbours in the US, Canadians wait longer for elective procedures, but have good access to essential treatments and even faster access to primary care (including better access on nights and weekends).39 Whether wait list benchmarks and statistical analyses of wait lists will prove to a be a valid measure of timely access to quality care (i.e., whether attending to wait lists results in actual attending to patients) remains to be seen.

How the Canadian health care system will accommodate the issue of access in the future also remains to be seen, and it is beyond the scope of this text to speculate. But a consideration of ethical concerns at a macro level must take into consideration that costs will continue to rise (scientific discovery and innovation move ever on); and demand will continue to grow. These things are true by virtue of the fact that as patients continue to age, and as newer and better (and often more expensive) treatments become available (and moreover become the new “standard of care”), they eclipse older diagnostic procedures and therapeutic interventions. While waiting lists have been acknowledged, and indeed the Canadian government seems to be making inroads into managing this issue, there are other facets to consider in a discussion of access to care and these are less clear cut in terms of how to quantify them and address them. As noted above, quantity of health care resources is one factor that affects access; in a single payer system the other factor is which services the payer will pay for. The Canada Health Act (CHA) stipulates the provision of “essential” services, but what exactly this means is a difficult and often thorny subject which will now be discussed. The attendant problem of public and private delivery of health care is an enormous issue in Canada and will be taken up in the next section.

The difference between “necessary” and (merely) “beneficial,” is an important distinction in the bioethics literature. The thorny problem of establishing a threshold along the spectrum between beneficial and necessary is important in questions of justice and the distribution of goods. The criterion of “comprehensiveness” (one of the five noted above) in the Canada Health Act sets the stage for just such a problem—a problem that dovetails with the problem of accessibility, the topic at hand. The CHA stipulates that provinces must provide an insurance program that comprehensively covers “medically necessary” services, but apart from indicating that this includes such things as hospital based services and physician services, it does little else to define the term. Canada has never defined medical necessity in relation to the CHA; moreover, a narrower search into provincial legislation has not provided a robust definition nor has a search into Canada’s role in forming international declarations of rights yielded anything directly applicable to the answer to the question of what is medically essential and what can legitimately be relegated to the non-essential list.68

Rather, the CHA remains vague on this count, and leaves the provinces, largely, to fend for themselves in this regard. That quality of being essential or necessary rests on a pair of criteria: essential services are those services which are delivered in hospitals (and the CHA does enumerate many of these including accommodation, meals, surgical procedures and post-operative care, etc.) and those services which are provided by physicians. But this, then, means that medically necessary is, by and large, whatever physicians deem it to be. To contain this definition somewhat (and, unfortunately, make it even more circular), physicians will order diagnostic tests and perform procedures etc. that are covered by the provincial fee codes, so ultimately essential becomes what is on the list of fee codes. Finally it is at this point that there is negotiation, for the fee codes are determined by negotiation between the provincial medical association and the provincial government.26, 69 Not everything is placed on this list, and not everything remains on this list, some services (for example breast reduction surgery, wart treatments, eye refraction testing) have been “de-listed,” and some never make it onto the list (for example cosmetic procedures such as breast augmentation or benign mole removals).

Two somewhat related ethical issues emerge from this. The first is in establishing who has legitimate claim on creating this list of necessary goods: the provincial government and the physicians are two essential players in this, but it is argued that a public health care plan should rightfully also permit the public to weigh in on these important decisions. Furthermore, these things are decided, largely, by negotiations about fee schedules, and whether negotiating physician salaries should be the sole catalyst of meetings that decide for the broader public what is medically necessary and what is not, is also questionable.26

The second (related) issue involves the limited inclusion of new and innovative technologies. In this sense it is the government deciding, largely along fiscal dimensions, which diagnostic and therapeutic procedures should be permitted and implemented. This carries the risk that newer or better measures may be deemed un-necessary, not based on empirical evidence, but by appeal to financial constraint. Once more, this risk is, perhaps, augmented by a lack of public participation and representation— and once more dredging up the question of whether there should be more deliberative democracy (i.e. meaningfully engaging the public in discussions and policy setting)  in play in determining health care priorities.

One example of addressing these questions comes from the public health experiment conducted in Oregon which began in 1994. This involved publically held debates over which health care provisions should be deemed essential enough to be covered by its expanded Medicaid program (the so called “Oregon Plan”). This public consultation resulted in a longer list of insured services but did not, in the end, result in better or more timely health care delivery and ultimately the plan folded in 2004.70 Furthermore it resulted in some cuts to services to the disadvantaged and disabled that were considered discriminatory.

Another issue that arises out of the debate over which services are to be deemed essential and which are not, connects back to disparities noted above. The Canadian health care system is universal and is based on equity. If the different provinces deem different services to be essential, there are different standards set across the different provinces and territories, and while equitable distribution may be ensured within a province, it is by no means ensured across the nation.

Finally, the whole notion of pinning down and defining the ever elusive “necessary” and teasing it apart from the “unnecessary” may be time and effort poorly spent. It may be more appropriate and fruitful to simply prioritize health care services rather than to worry after abstract and rather philosophical concepts of “essential-ness” and “nonessential-ness”. It may be better for Canadians in general, for governments and health care administrators to expend effort in prioritizing rather than list building.

A complete set of answers to the question of what is medically necessary and what is merely medically beneficial—what is essential and what is elective—cannot be resolved here. Some of the issues (for example prescription drug coverage) have been tackled head on by well intended efforts at health care reform, and  those that will be outlined below. As so often in bioethics the fruit of inquiry is not the provision of comprehensive answers but the formulation of well ordered questions and elucidation of the avenues of pertinent investigation. And in this vein, some of the other questions that must be raised in contemplating that line between necessary and beneficial as it pertains specifically to health care in Canada include such things as:

  • What is the correct balance between preventive care units (such as provincially funded public health units) and intensive care units; and could more time spent on prevention lead to improved cost savings before medical care truly does become necessary?
  • How does free access to health care affect inflated costs through moral hazard, that is, the hazard of increased costs through increased utilization by less cost-conscious consumers and providers? More importantly how is this ill-defined hazard curbed?
  • Prescription medications by any measure can be construed as an essential part of health care, but they are only covered for the elderly, those on social assistance, and for those diseases in which medication costs represent an overwhelming burden. Why are they not covered for everyone according to need? If they are deemed essential enough to be provided for some segments of the population should they not be provided to all?
  • Screening programs: How much should they rightly cost, and how inclusive should they be? What is the correct balance between expense and comprehensiveness and sensitivity (or acceptable levels of detection)? 71
  • With respect to hospital care, as technology advances, more and more invasive care is being provided on an outpatient basis with only brief stays in hospital, and while hospital care is specifically elevated to essential status by the CHA, what about after care and home care that is increasingly being offloaded from hospitals? In a similar vein, as Canadians live longer (and live longer with disabilities or with chronic diseases) what provisions should be made to provide extended care, nursing home care, and palliative care outside hospitals?
  • Turning to the other part of the defining criteria for what is deemed “necessary,” namely, physician care: as health care becomes more technical, more and more care is being provided by non-physicians, arguably at least some of this care could rightfully be construed as “necessary”. Why does  Medicare not see fit to pay for essential therapies outside the doctor’s office and hospital; care such as physiotherapy, and psychotherapy?72

While these questions are not new, and volumes could be (and have been) written on them, their place in this text is in outlining the topography of the issues, not in answering them. Before carrying on in the theme of essential and non-essential services and a discussion of the public and private debate, questions such as those raised above inspire broader questions about health care as a fundamental Canadian right… and a digression will be made to discuss this now.



The notion of a “right to health care,” on the surface, appears to connect back to fundamental human rights—that is, that rights such as the right to life, security and well-being seem to encompass, or be the basis for, the right to good health and the right to health care. In the most basic conception, scholars that address the issue of a right to health care are in two general camps, libertarian and egalitarian.73 Libertarians would argue that there exist only negative rights or, roughly, the right to be left alone (the right to life, for example, being a right to be left alone and not have one’s life taken). In this camp, with respect to health care, there is no positive right, a right to have something given to one by virtue of the need for it; the need for something does not generate a right to it. Health care, in this conception, is essentially a service that is paid for (directly in cash or indirectly through insurance or taxes) and for those that cannot pay, its delivery is dependent upon the charity of the providers—a service which is to be given freely by providers, and not mandated by government or compelled by law.  On the other side, a roughly sketched egalitarian argument would go something like this: humans are born onto an unequal playing field, and this “moral luck” has an impact on their well-being that has nothing to do with what they have done to shape their lives. Following from that, the right to health care is located in the notion that all persons deserve some help in equalizing this inherently unequal playing field—that the equal access to health care is fundamental to recognizing and reacting to this unequal playing field, and that making it as even as possible is commensurate with the notion that all people are of equal value and should be given equal opportunity to live a good life.74 Clearly, there are merits and flaws with either of these arguments in different situations and a true understanding of these arguments requires a much more detailed analysis to do either of them justice. The notion of a “right” to health care requires engaging and exploring people’s world views, and in a pluralistic world this results in a plurality of answers. While the intellectual battles rage, it is the purpose of this text not to resolve these matters but, rather, to clarify the ways in which these issues have or continue to play out in Canada and to outline some of the practical answers and responses Canada and Canadians have given to these questions.

Once more, this is a broad philosophical topic that cannot begin to be fully portrayed here, but a few generalizations are perhaps necessary. It is likely that the most reasonable conception of the “right to health care” is best appreciated not as a right but, in fact, a bundle of rights that are commensurate with basic human rights. Furthermore it is impossible to establish a formal and enduring definition, or a clear and unanimous conception of the term “health care,” but it would seem to include very specific and personal items such as, for example, the care given to one by a nurse in a hospital, and on through to general items such as, for example, public funding and infrastructure that supports a system of nurses in hospitals. Health care can include for example: an individual health care intervention such as a visit to a personal family physician; but can also include public health measures such as the creation of a public health clinic, the implementation of a new vaccine protocol, or the development of a better sewage treatment facility. Health care is a broad concept with many dimensions and significant overlap with other social goods. Contemplating the spectrum, one must also bear in mind that as health care is a difficult thing to define, the idea of health care as a right must, at a minimum, be shaped and cultivated to apply properly to the society which creates, endorses and protects that right.75

Despite the absence of a clear and consensual understanding of health care rights, there exists in Canada the notion of a right to health care and it does seem to be tied to such fundamental instruments as the Canadian Charter and the Canada Health Act. But perhaps taking a step back is necessary to gain perspective on a Canadian answer to precisely what a right to health care looks like, and where it begins. One place to begin to look for a Canadian stance on the issue of rights to health care is the International Covenant on Economic, Social and Political Rights.76 This document, part of the UN “International Bill of Human Rights” (an informal name given to a collection of similar UN international treaties), establishes the notion of good health and health care as fundamental human rights. This is an international treaty that has the force of international law; in signing it, Canada can be seen as going on record as endorsing the notion that all people have a right to “the highest attainable standard of physical and mental health”.77

A subcommittee of the Kirby Commission (discussed below) was struck to address some of these questions, not from a philosophical realm but from a careful examination of such things as the Charter, the CHA, and public opinion.78 Notable commentary from the Charter (sections 7 and 15 respectively) ensures the “right to life liberty and security of the person”79 and the “right to equal protection and equal benefit of the law”.80 Health care is not specifically mentioned in the Charter, and rights are not specifically mentioned in the CHA, but all this notwithstanding, the right to life is seen to encompass the right to health care, and in this sense Canadians would seem to have a right to health care. This is also borne out by repeated public opinion polls that enforce this general perception among Canadians.78 Understanding at a conceptual level just what that basket of goods called “health care” is supposed to contain, is a challenge that will not here be answered, however one issue that continually arises is the notion of timeliness. That Canadians should have access to timely care seems to be an aspect of primacy, more important in many ways than other aspects of health care, or the other things that are entailed in the notion of the “right to health care”. And this is the focus of the next section, where the right to care, especially timely care, became an issue to be argued in the courts.


As is often the case with ethical decision making, if clever people looking hard at the problem does not reveal easy answers and if putting forward compelling arguments and publishing erudite literature does not gel into accepted knowledge or conventional wisdom—the courts are often asked to intercede. Human rights are not necessarily legal rights; even those rights that are recognized by international law, cannot necessarily be tools for citizens of a nation that require justice within their own nation.81 And so it is with the notion of a right to health care, or perhaps more to the point, whether Medicare and its instrument, the Canada Health Act instantiates or, indeed, jeopardizes the rights of Canadians. Perhaps the most significant case in this realm is that of Chaoulli v. Quebec.82

This case revolved around a Quebec physician, Jacques Chaoulli, and his patient George Zeliotis. Together they initiated an action against the Quebec government, arguing that the prohibition against private insurance in the province violated rights to life, liberty and security which were guaranteed under the Canadian Charter and the Quebec Charter of Human Rights and Freedoms. They argued that Mr. Zeliotis’ year long wait for a hip replacement in 1997 was unjust by these charters—more to the point, they were arguing that the prohibition of private insurance was not a justifiable protection of the public health care system (as it was intended to be), but in fact it deprived people of basic human rights.

Before moving to the outcome of the case, an analysis of an argument along these lines is germane to any discussion of bioethics in Canada. The bedrock of the argument for, and the principles of, a universal single payer system is that health care should be delivered fairly according to need; equity is the essence of Medicare. Equity espouses the notion of just distribution of resources. A key feature of distributive justice is the distribution of goods but also the burdens. While Medicare was intended to distribute resources equitably—according to need—it was rapidly becoming more notorious as a distribution of burden. Stated another way, the intent of Medicare was to ensure that wealthy or poor, all could gain access to good and timely health care; but what was arguably happening was a system in which it was becoming more and more acceptable to permit the long wait and the suffering of the poor… so long as the rich would be forced to suffer along with them.83 While this is not precisely the line of reasoning behind the Chaoulli case, it is important to recognize this as one way to frame the question of rights and one way to inspire the debate over the merits of public and private health care which will be taken up below.

The case ultimately went to the Supreme Court of Canada in 2005 which ruled 4-3 in favour of Chaoulli and Zeliotis. Essentially the ruling stated that the ban on private insurance did violate the Quebec Charter and opened the door to private insurance to facilitate the timely access to essential (necessary) treatments. This ruling was seen as a formal recognition by the justice system that Canadians had a right to timely access health care. It is important to note also that the ruling only applies to Quebec and that the ruling was not one that opined on whether health care would be better delivered in the free market (again, this latter debate will be taken up below). Nonetheless, Chaoulli was an historic decision, and despite these limitations it is a decision that opened the debate over a private system more fully, brought forward the notion that the fundamental tenets of Medicare and the influence of the Canada Health Act could be challenged in a court of law, and similarly that the Canadian people could use a legal instrument to impose on their government a heightened responsibility for their rights, specifically the right to timely access to health care.

The aftermath of the Chaoulli decision has been by some reckoning influential, and by some reckoning lacklustre. Volumes have been written on the case. One thing that is clear is that this decision has not unleashed a flood of similar cases throughout Canada, the speculative reasons for this range from the notion that Canadians simply do not have an appetite for choosing their beloved Medicare as the sacrificial lamb to impel change in health care in their nation. Other notions are that there is no clear assurance that in the vacuum that Medicare would leave, business sector insurers could be competitive enough to make a profit.26 As of 2011, six years after the Chaoulli case, the national and provincial health policies remain largely unchanged, possibly because there is no business incentive for an insurance company to offer another product.84 The fallout of the Chaoulli case generated a tremendous volume of published opinion and rhetoric, but an analysis of the arguments shows them to be somewhat thin on evidence and lacking substantive content to forward arguments for or against adding private insurance to the public scheme in place. Often those advocates of one position or another rely on different perspectives of the same arguments (“health care as a right should be championed” versus “health care as a right is an archaic idea”) or different renderings of the same data sets (“the European experience with two tiered systems shows them to be beneficial” versus “the European experience with two-tiered systems shows them to be harmful”).85

So, although in practice the provincial and national policies remain largely unchanged, there has been no small amount of theorizing and much has been said and written of Chaoulli. It has been a lightning rod in sparking the perennial debate in Canada over whether there should be a dual public and private system of health care, and this will now be discussed.


Much of the information portrayed so far in this chapter has provided contextual information germane to an understanding of the issue of how to blend private and public health care. Likely several questions have been generated simply in reading the foregoing information. Indeed this has been an issue in Canada since the inception of Medicare, and has raged both before and after the signing of the Canada Health Act. Perhaps the biggest problem in the debate is how to adequately conceptualize the contentious issues, and how to define the contour and dimensions of the issues. This section will serve as the briefest of introductions to just that: the dimensions and the scope of the issues surrounding public and private health care funding and delivery in Canada. A thorough examination of this topic is simply not possible if for no other reason than that it has not been resolved in any meaningful way either in theory or in reality. This will be an introduction to the issues through the ethics lens and for ethicists to ponder. This introduction will also serve as an important backdrop for some of the topics that will be discussed in future chapters.


The Canadian health care system is not socialized medicine—this point, stressed above, bears repeating. There exists in Canada a mix of private and public resources. Although this was discussed above, to understand the issues surrounding the public and private health care problems another perspective is, perhaps, required. Looking at health care from the overall organizational structure as was portrayed above, is not enough. To look at the health care system along the lines of tension will be revealing. In any health care system there is the financial side and the delivery side: one can think of a grid consisting of financing (both public and private) and delivery (public and private). Canada’s blend of private and public is rather complex, and although it is known as a “public” and “universal” system, painting it so in such broad strokes does not lend to a sharper understanding of the realities. Similarly, painting the arguments about reform and change in the broad characterizations of “public” versus “private” does not capture the issues adequately. So when the discussion of public and private health care erupts into debate it is essential to define what precisely is at issue, and no small amount of confusion and ignorance exist among many of the antagonists and protagonists on both sides of the debates.

Rendering the health care financing and delivery into a grid (please refer to Table 1 below) shows the many combinations that exist in Canada. Financing is both public and private and delivery is both public and private. Canada is unique in the world as providing “sectoral” coverage, that is, 100% coverage for some goods and services and no coverage for others.69, 86 It is important to note that most of Canada’s health care is, indeed, publically funded but delivered privately (Boxes 2 and 3). Hospitals for the sake of simplicity can rightly be considered private inasmuch as they are not generally government owned and are indeed non-profit organizations run by hospital boards. Primary health care delivery, such as visits to primary care doctors and even most specialist physicians, occurs in privately managed and financed clinics, but the care received is paid for by the provincial health insurance plans. Even diagnostic testing and investigations are underwritten by Medicare funds and paid to private labs and diagnostic facilities (often with the rather complicated exception of private radiology services, as discussed below).

There are large areas of non-contentious financed and delivered health care goods. Publically funded and publically delivered healthcare (Box 1) is just such a thing, but, largely, it does not enter into the general public’s contemplation of health care for a couple of reasons. First, public works such as sanitation programs, and public health programs such as immunization programs, while enormous public undertakings, fall in the grey area between public health and personal health. Other publically funded and publically delivered ventures such as certain psychiatric facilities are not utilized by most of the population. Some of the items in Box 6 are, similarly, fairly non-contentious: such as cosmetic surgery. And many of the items in Box 4 are similarly not controversial: such as paying for cable television services while in hospital.

So, while Medicare is considered roughly to be a public health care system there are still a great many private aspects to it, and many of these are non-controversial. Many of the distressing issues that will soon be discussed, are born out to the fact that the ways of financing and the means of delivery of these items, items in Boxes 4-6, are controversial and contentious.

Before moving to a discussion of some of the “public versus private” issues, an examination of one aspect of the public-private blend is necessary. Canada is a nation undergoing rapid changes in the delivery of some health care services. That being the case, some of the practical and legal considerations are with just how this arrangement can occur within the current Medicare system. Currently the CHA does not prohibit private delivery of medical care, but it does stipulate that all essential services must be covered by the provincial health insurance plan. If services are to be provided outside traditional institutions, is it possible to keep within the CHA guidelines? Several provinces have experimented with private clinics and facilities, and currently there are facilities providing increasingly invasive procedures such as cataract surgery, and even orthopaedic procedures in “independent” medical facilities in most provinces. While some argue that this is in keeping with the spirit of the CHA and Medicare, others suggest it represents a significant and even illegal departure from the spirit of universal and equitable care.87

There are variations on the theme of “independent” medical facilities. There are facilities which provide only services that are outside the scope of medically necessary as defined by the CHA, including, for example, cosmetic surgery or corneal surgery (e.g., laser keratotomy) for vision correction. These facilities may also perform such things as dental procedures, which traditionally (rightly or wrongly) fall outside the scope of “medically necessary”. These procedures are paid for by patients or by patients’ insurance plans. Another class of independent medical facility in some provinces performs such things as outpatient surgeries, such as cataract surgeries, or less invasive musculoskeletal procedures (e.g. arthroscopies etc). For the most part, these facilities, and the physicians that perform the service bill the government under the health insurance plan, and are under contract with the government’s health insurance plan to perform the services they provide. A third and rather confusing category of services are diagnostic imaging services, which have come into being since the late 1990’s. These facilities perform CT scans and MRI scans for indications (ostensibly) falling outside of the Medicare lists of ensured services (such as CT screening for colon cancer), but also provide medically “necessary” procedures, such as MRI’s of injured limbs, but they charge the patient directly. Just how this arrangement is permitted within the CHA is still being debated by the provinces with the federal government and it is likely that the final ruling on how they will continue to exist is yet to be heard.

Now that the breakdown of the financing and delivery has been outlined, discussion will move on to defining the issues. Again this should be more accurately viewed as an enumeration or taxonomy of the issues and not an attempt at resolving them.


Medicare was hailed as a great social achievement but the finer points of making it work are often quite contentious and thorny subjects. A universal health care system is consistent with Canadian values but where to draw the line on expenditures—and lines must necessarily be drawn between the essential and the non-essential, the necessary and the “merely” beneficial, the needs and the wants—is a very difficult task. To recap a theme introduced above: the provincial health care programs endeavour to pay for essential services based on needs, and certain services (notably hospital and physician services) are deemed eligible for coverage while others are not. Some of these items, like emergency medical care, are not contentious and clearly covered; and certain items that are not covered, such as cosmetic surgery, are similarly non-contentious. But there remain many health care goods that test the boundaries between what Canadians feel they have a right to under the umbrella of Medicare, and what the governing and legislative bodies feel they are able to provide within the limits of fiscal constraints and in the name of just and equitable distribution of resources. These disputed health care goods include for example: dental care, coverage for prescription medications and appliances, mental health care and counselling, and rehabilitation services such as physiotherapy, as well as extended care and long term care for the elderly and the disabled.

So, the first broad area of concern is in determining just how many of the items in the lower half of Table 1 should be moved to the upper half of the table and receive public financing. Many feel that as more and more health care is occurring outside the traditional public realm of hospitals and doctors’ offices, that the system should adapt to accommodate this. The notion here being that if Canadians have understood equitable, timely and good quality health care to be a right, and that these “extended” benefits (such as home care and prescription drugs) are no longer luxuries, but essential and part of standard care, then this right should encompass more of these “extended” benefits. While the logic is sound and the appeal receives sympathy from all sectors (citizens, government, health care workers), this appeal, nonetheless, must be reconciled with the just distribution of health care to as many as possible within a finite set of resources.

Contemplating these things, and the best way forward, will also require Canadians to ask if lists of insured and uninsured services are warranted or even possible, or whether it may be more fruitful and appropriate to gain a stronger sense of health care priorities and fund these as far as health care budgets will allow. Either approach is fraught with challenges, but the system, as it is, requires categorizing, not prioritizing.

In a perfect world this could be done painlessly.88 In a perfect world, lines could be drawn that would decrease excess and redundancy of the publically funded services in order to redirect funds and create a bigger envelope outside these traditional service locations to include other public and privately delivered services; enhancing the scope and location of service while maintaining the same degree (or more) of public funding. This would have the effect of increasing delivery in a “painless” manner, insofar as society gains services without incurring increased tax burdens, nor in enduring more pain brought about for want of “axed” health care services. Painless does not mean simple, and social policies and reforms that attempt these types of improvements galvanize the nation. These types of reforms are seen as possibilities under some of the bold health care reforms discussed in the final section of this chapter.

Of course improving health services without increasing costs is an ideal to be strived for, but clearly it is more complicated than that and thus the notion of “painful” cost control enters the arena. Just how much “pain” Canadians can abide is very contentious, for example how much expensive, high-tech state-of-the-art medical care needed by the very few can be sacrificed to pay for prescription medications for the many? And just how will the idealistic and rather rigid tenets of the Medicare system permit such sacrifices and trade-offs? Canadians endure the pain of waiting lists and access limitations in order to contain costs in a system that is largely government financed—the issue is whether the product they receive is worth the pain, and furthermore, whether the ideal principle of equitable distribution (fair distribution according to need) at the heart of Medicare, is indeed a principle worth the price of that pain. Moving more services from the “non-necessary” realm into the “necessary” realm (essentially moving them from the bottom half of Table 1 to the top half) will certainly complicate this further. For example, if a province cannot even afford to enhance access to more hip replacements for its needy citizens, how will it underwrite the enormous cost of prescription medications as well? These painful decisions have no clear right and good answers, but there are an abundance of opinions.

Improving services (both access and quality) in modern Canada may mean revamping the Medicare system. And this spawns a second broad class of issues. On one end of the spectrum, there are those who feel that the Medicare system is archaic and incapable of responding to the needs of Canadians and should be dismantled completely. Proponents of this argument state that the government cannot afford such an endeavour and private financing for health care (out of pocket or through private insurance) such as that found in the US is the way forward. On the other end of the spectrum, there are those that feel that the Medicare system can be adequately adjusted to accommodate all the health care needs of the people, and no role for privately financed and delivered health care exists. If there is a resolution to this debate, it is not revealed herein. Likely the answer lies between these extremes. Looking at some of the facets and some of the problems may be instructive in attempting to find an answer.

As was noted above, most health care is already delivered by private facilities with public financing. The question then becomes whether or not the way forward will be to shift this trend even further. That is, whether other services, such as diagnostic imaging and therapies that traditionally occur in hospitals (such as minor surgeries etc.), could be delivered in private for-profit settings, and receive public funding. The argument for such a move is based, in part, on the notion that the current assortment of publically financed and delivered goods (even though it does not represent the vast bulk of the total delivery) is financially unsustainable. There are arguments on both sides over the financial sustainability of the current health care scheme.89-91,92 The ethical consideration here is whether this significant departure from traditional Medicare will still provide equitable and accessible health care, or whether business interests and profit incentives create inefficiencies and gaps that will further compromise an already stressed system and negatively impact a nation in want of more health care services.

Beyond the theoretical, there are also some very practical issues. One practical issue is in just how these private institutions are permitted to exist under the CHA. As noted above there are several legal mechanisms for this, but other solutions, such as the funding of private diagnostic imaging facilities remain in a grey zone. Another practical concern is with the regulation of such facilities, as they seem to exist outside the rigid and regulated health care system; private clinics which provide procedures are for the most part in a situation where regulation and accreditation have not kept pace with their rapid development.93

Many argue that the process of privatization is inevitable. There exists already a “passive privatization” process: as less invasive  surgical techniques are refined, and better drug therapies are developed less care occurs in hospitals and more care is offloaded to people’s homes and undertaken by individuals outside the health care system.26 The trend will continue as medical advances continue to be developed, and then become accepted as the standard of care: a surgical procedure that even two decades ago may have required a week-long convalescence in-hospital, can now be done as a day surgery and the patient convalesces at home. This brings the issue around again to the question of just how many of these off-loaded services should be given more public funding, and how many of these services should remain in the private realm and require private funding.

Increasing public and private divisions creates a “Two Tiered System” of public and private care. Arguably this system, as noted above, already exists, but more to the point, what Canadians are worried about is a system where there are new strata of people who can pay for the newest and best treatments; a strata that is set apart from those who cannot afford them. If the health care system were to evolve into this it would be a significant departure from the “Medicare” that was envisioned and fought for since the 1950’s. Again, referring back to the opinion polls outlined in the first half of this chapter, this is no small thing—Canadians feel strongly about their health care system and overwhelmingly favour it over other options. Furthermore, they staunchly defend their beloved Medicare as an item of national identity, and dismantling or changing the system is an area into which few politicians or policy makers are likely willing to tread.

This alone, the violation of the principle of equitable delivery based on need and not ability to pay, is enough of a concern; but for opponents of a two-tiered system another further concern is raised about the effect of private for-profit non-government funded services on Medicare. Even if a core of Medicare was preserved alongside a private system, private services could compromise the public system. This would occur if, for example, the private system were to siphon off experts from the public system; or if patients were to pay for an expedited diagnosis (for example, paying for diagnostic imaging and getting a quicker diagnosis), and then “jump the queue” to receive treatment before those still standing in line for a publically funded CT or MRI. Proponents of a dual public and private system argue that enabling more private services frees up the public system to treat more of those in need. The fact that the Canadian system is unique in the way it funds some sectors of health care completely (for example, hospital care) and others not at all (for example, counselling services), certainly taints predictions on both sides of the argument because the world offers no precedent or examples to draw from.

Interestingly, the same hurdle that stands in the way of private clinics being able to deliver services, namely the CHA prohibition of patients paying for medically necessary services, seems to enable the funnelling of some care toward the private sector. If “medically necessary” is given a more rigid interpretation, then many services that people would have to wait in long lines for (such as MRI’s for sports injuries) seem to be able to pass as discretionary enough to be allowed to be performed by a private clinic and billed to the patient directly. In a similar vein, certain procedures such as joint replacements and cataract removal can involve substantial co-payment by patients for superior artificial joints or lenses—again based on the fact that the basic products are covered, but the better products are discretionary and not strictly necessary. As time and technology move on, there will surely be more of these public-private grey zone treatments, and the issue of who ought to pay and just how the service financing and delivery are to square with the CHA, will continue be at issue.

There are strong opinions from all stakeholders (patients, health care professionals, government, advocacy groups etc.), and these represent opinions both for and against increased privatization. Taking a stand and voicing an opinion is one thing, but it is action that is required for progress.  For its part, the Canadian Medical Association (CMA) sees the medical system, as it is now in Canada, as untenable and has become an advocate of increasing private health care delivery but only under the construct of, and within the principles of, a universal and equitable delivery of care.94 The CMA feels that to not make drastic changes would represent an unacceptable level of care. Wait lists and access being a major hurdle to Canadians, the CMA suggests that options should be in place to allow access to private services, and to allow private insurance for these services; to do less would limit access and be unethical. Furthermore it recommends removing restrictions that currently prohibit physicians from working in both private and publically funded areas; it advocates a mix of private and public sphere work for physicians. The Canadian government has responded with a certain middle of the road approach that recognizes the need for change, but within the structure of the existing Medicare model. And this is the topic of the next and final section.


Much of the foregoing discussion has outlined many of the issues that lie behind the impetus for health care reform movements. Much has been said in this section about the bioethical issues of health care in Canada at the macro level. It would be incomplete not to include at least a brief summary of some of the inquiries into how to reform health care, and some of the measures that have derived from these.

Before embarking on this topic it may be instructive to briefly return to the US and Canadian comparison. It was noted above that the two systems diverged in the late 50’s and early 60’s in their response to some of the funding issues inherent in the rapidly increasing costs of health care. While Canadians opted for Medicare, the US opted for multiple payers, private insurance companies, and a multitude of complicated derivative structures and schemes to enable the finance and delivery of health care in a manner that intentionally kept government involvement to a minimum. As time and technology have marched on, it is once more interesting to witness the discordance in health care reform. It seems that once health care approaches initially diverged, the pendulums of change are destined to remain out of synchronization. The American system is, at the time of this writing, contemplating change that would incorporate more government involvement, and Canadians are trying to find ways to expand private involvement—and both are trying to adhere to a system that is commensurate with the values that formed them, and not diverge from the fundamentals that each country holds dear. Both countries seem to favour change from within rather than dismantling and rebuilding the whole structure.

Many of the issues that have been introduced above came to the fore in the 1990’s. While there are many reasons for this, perhaps one of the most significant is that medical care was undergoing ongoing change and innovation, and some of these changes were not being accommodated by rigid systematic structures such as the Canada Health Act. The 1990’s saw reductions in health care spending and growing dissatisfaction across Canada with the state of the health care system.41 This was the inspiration behind three important commissions struck to examine health care and recommend reforms. The first of these was in Alberta and it was headed by former Deputy Prime Minister, Don Mazinkowski.95 The other two were national in scope, one was a committee of the Senate chaired by Senator Michael Kirby,61 and the last chaired by former Saskatchewan Premier Roy Romanow was commissioned by the House of Commons.55

The Mazankowski Report (2002), was perhaps the boldest of the reports inasmuch as it recommended significant departure from the established single payer system and advocated for new experiments in parallel private health care delivery systems. It suggested removing certain benefits from the list of insured services, and the careful scrutiny of new medical interventions before they be granted status as an insured service. The Mazankowski commission suggested dismantling the then existing structure to the point that there was no longer only a single payer system; to that end people could receive medical benefits in a mix of private and public health care facilities and the commission went on to suggest new ways of underwriting the costs of this new system including new taxes, insurance premiums, user fees and so on. Most of these were not acted on by the provincial government in any substantial way, but an electronic health records system was established and advisory panels set up to review which services could be de-listed.

The Standing Senate Committee on Social Affairs, Science and Technology met for two years under the leadership of Senator Michael Kirby before releasing a final report (and several interim reports) in 2002. The Kirby Report suggested a new tax (reflecting household income) that would generate $5 billion in new revenue to improve on the health care system by building new hospitals and recruiting new health care workers. The commission felt that timely delivery of care was so important that if it could not be delivered, it could rightly be sought out of country—in fact, the commission stated that if reform could not be made through these measures, consideration should be given to arguments for private health insurance. The Kirby Report was released a month before the Romanow report and it is for this reason, perhaps, that many of its recommendations were not specifically recognized as they were eclipsed by the latter.96 As noted below, this fact is largely irrelevant in light of the fact that their recommendations and key findings were very similar.

In October of 2002, the Commission on the Future of Health Care in Canada chaired by former Premier Roy Romanow released its extensive report on the ways and means of remodelling Medicare. A central theme of the Romanow Report was that Medicare should be rescued and restructured, not abandoned. And it encouraged the co-operation of the provinces and territories to accomplish that end. The commission recommended a $6.5 billion increase in spending on health care, and a permanent and separate income tax to generate part of this. For its part, the Romanow commission did also suggest expansion into private sector health care services in the form of more public funding for private diagnostic imaging centres.

For all their differences, perhaps the more significant thing about these commissions and reports was, in fact, the ways and means they were similar, both in terms of their findings and their recommendations. They all advocated for some form of guarantee of timely access to care. They all advocated for an expanded role for electronic health records. The Mazankowski and Romanow commissions recommended more stringent performance assessment and accountability measures, and the Kirby commission recommended a new overseer in the form of a “health care commissioner,” both as a way to cut costs and enhance performance. Both the Kirby and Romanow commissions have, as strong central themes, the improved access to prescription drugs (including caps to personal and household expenditures, expanded coverage to include the costs of many standard therapies, etc.) and home care (including care for the elderly, the mentally ill, post hospital rehabilitation, and palliative care).

Many of these recommendations have been acted on in one form or another. As was noted above, there were bold and enduring steps made to address waiting times throughout Canada. The first ministers meetings in 2003 produced the 2003 Health Ministers Accord that responded to many of the recommendations of the Romanow commission. It called for significant increase in funding ($34 billion over five years) to be spent on key areas of reform such as improved primary care and primary care access, reducing costs and expanding coverage for prescription drugs (the goal being comprehensive “catastrophic drug coverage”—medications for prohibitively expensive illnesses), and significant enhancement for out of hospital care (such as home care).

All of these positive changes notwithstanding, it is clear that many of the ethically charged health issues outlined above have not been entirely resolved. It may be best to look upon these reforms as works in progress. It may well be the case that there will never be a clear resolution for issues such as the correct blend of private and  public funding for health care—nevertheless Canadians continue to make their way through the political, financial, and ethical challenges of providing equitable and high-quality health care to the nation.


Canada is a vast country and a culturally diverse nation. This chapter was arranged into two sections in order to better present the concept of “bioethics in Canada”. It was arranged into discussions of the nation and its people, and the nation and its issues.

This chapter began with an examination of Canadian governance. Canada, a federation of provinces and territories, was portrayed as a nation with a strong multiparty democratic system of government. The provinces were seen to possess broad autonomous powers including individual jurisdiction over health care. The Constitution Act (of 1982) severed ties with Britain, and it is the legislative instrument which gave the federation legitimacy, permitted executive and legislative branches of government, and created the Supreme Court of Canada. The first part of the Constitution is the Charter, which enumerates the rights and freedoms of Canadians. Stable governance has meant a stable system of common law justice.

The next topic was an examination of Canadians and their diverse multicultural makeup, as well as a discussion of the unique Aboriginal population—unique in status but unique also in receiving systematic mistreatment throughout Canada’s history.

Despite Canada’s diversity there exist a few unifying attitudes and opinions, one of these is for the respect and protection shown Canada’s universal health care system commonly known as Medicare. The health care system was considered at length, as understanding it is essential to many of the topics of this text. The history of Medicare was discussed, with its origins in Saskatchewan in the 40’s and 50’s and its evolution which continues to the present. It is largely defined by the Canada Health Act (of 1984). An examination of health care financing and delivery was introduced—at 10% of GDP it is an expensive system, and it is a unique system that covers most essential care and bans private insurance for such care. Despite its being billed as a “universal single payer” system, this does not preclude gaps in coverage and significant need and use of private sector care. It was seen that the five central principles of the CHA are: public administration, universality, portability, comprehensiveness, and accessibility. It is these criteria that must be met in order for provinces to receive federal funding for their health care plans, it is also these five criteria that are considered by Canadians to be the essence of Medicare. In addition to the federal CHA, there are provincial acts that provide for and oversee the running of hospitals, mental health, public health, and also which enable professional self-regulation.

With respect to the latter, professional self-regulation is the norm in Canada, even though it is carried out differently in different provinces and regions. There are ethical implications of self-regulation; on one hand it is justified by an appeal to fact that the professionals “know” themselves best, and are, arguably, the only legitimate and appropriate group to carry out such regulation. On the other hand, holding such power provokes questions about the degree to which professionals will see to their own interests before the interests of the society they serve. Quality assurance, accreditation, and discipline are some of the areas in which these professionals regulate themselves.

The last topic of the first part of the chapter was an examination of the health of Canadians. It was established that Canadians are relatively healthy with, for example, a life expectancy of 80 years of age, and an infant mortality rate of 5.4/1000 births. Furthermore, the health of Canadians ranks favourably among other OECD countries.

The second part of this chapter was an introduction to some of the macro-level bioethical issues. Many of these become obvious once the context of the Canadian “system” is understood from the first part of the chapter. The first of these issues discussed was health care disparities. In a health care system that was founded on principles of equity and universal access to health care based on need, there are still differences between regions in Canada—health generally improves from east to west, from north to south, and from rural to urban. Not surprisingly these differences are, at bottom, more about differences between poor and rich, and addressing poverty is seen to be large factor in resolving disparities. The same is true of the profound disparities that exist between the health of Aboriginal populations and other Canadians—Aboriginal people have been the victims of systematic oppression and discrimination since the first explorers reached Canadian shores.

Access to care is a major issue in Canada. Canada is “regionalized” inasmuch as it provides primary secondary and tertiary care within any given region; from primary care spread throughout the region, to tertiary care being focused in one or two major centres. In Canada the delivery is based on need and fair distribution of health care resources—this often entails waiting. Waiting times became the primary concern of Canadians regarding their health care system, when bold measures were taken to study and rectify the problem in the first five years of the new millennium. The increased cost of care will ensure that this problem will continue to be at issue in the future.  Much of the problem with access has to do with what services are deemed by provincial plans as medically necessary and which not; decisions in this realm are made largely by negotiation between physicians and provincial governments. Several questions can be asked about essential and non-essential care, including such things as: balancing prevention and screening programs with acute care, the degree to which the Medicare system is adapting to a new age of out-of-hospital care by allied health professionals, and whether the lack of funding for prescription medications (in an era of increased reliance on expensive medications) is defensible in a system that promises care to those in need.

The right to health care is an issue that is debated at very abstract philosophical levels. In a practical way Canadians seem to be of the opinion that health care is a right and this is reinforced by Canada’s stance on internationally recognized statements of rights, as well as the rights enumerated in the Charter, and the stipulations of the Canada Health Act. The question of the right to timely health care was tested in the case of Chaoulli v. Quebec which ultimately ruled that timely care is a right and banning private insurance is in violation of at least the Quebec charter.

The next area of discussion was the debate over the correct blend of public and private care. Medicare is not socialized medicine and there is a complex mix of publically and privately financed care, and publically and privately delivered health care, all of which contribute to the Medicare system. Most of these areas, such as the publically financed and delivered services, and the privately financed and delivered services (such as elective or cosmetic procedures), are non-controversial. The controversy begins when contemplating which of the now privately financed services should be rightly made into publically financed services as medical care continues to evolve and involve more and more of those services that were not originally funded by Medicare, or over time have had their funding pulled—services such as prescription medications and home care and mental health care. The controversy continues in defining which publically delivered goods could rightly be made into privately delivered goods (such as diagnostic imaging centres, and clinics and hospitals that operate for profit but receive public financing). As health care evolves with technological and medical innovation, more care is being shifted to the privately financed realm and being delivered at home or being accomplished with non-funded prescription medications. To what extent this could or should be carried on was discussed and the notion of the “two-tiered” system was introduced with some of the ethical considerations enumerated. There are strong opinions being voiced by Canadians, but also strong stands being taken by the Canadian Medical Association (that sees an enhanced private sector as a sound part of a publically funded universal system) and by government.

On that note, the stand that government has taken on these issues is considered in the final section of this chapter which outlines some of the major national undertakings in studying health care, and endeavours in suggesting health care reforms. Some of these inquiries, such as the Mazankowski commission, suggested bold new steps in the privatization of medical care. Others, such as the Kirby commission and the Romanow commission, suggested reforms from within the structure of a publically funded and universal system.  By and large, these inquiries resulted in many similar key findings, and despite differences, resulted in many of the same suggestions. Some of these have been acted upon since the 2003 Health Minister’s Accord which earmarked large expenditures for things such as prescription drugs and care beyond hospital care.

Armed with the knowledge of the Canadian “system”, both past and present, and with speculation about the future, it is now time to tackle some of the various bioethics topics facing Canada and Canadians.



Table 1.


  • Public Health (Sanitation, Immunization, etc.)
  • Provincial psychiatric institutions
  • Home Care in some provinces

  • Most hospitals
  • Addiction treatment centres



  • Primary health care physicians
  • Ancillary services in hospitals (laundry services, meal preparation and maintenance)
  • Laboratories and diagnostic services in most provinces

  • Enhanced non-medical services within a hospital (e.g., private room)
  • Enhanced medical goods and services that require a surcharge yet delivered within a hospital (e.g., specialized cast, or improved implantable lens after cataract surgery)



  • Some home care and nursing homes in some provinces



  • Cosmetic surgery
  • Long-term care
  • Extended health care benefits such as prescription drugs, dental care and eye care in some provinces
  • Some MRI and CT scan clinics
  • Some surgery clinics



1)       Deber R B. Delivering Health Care Services: Public, Not-For-Profit, or Private? Discussion Paper No. 17, Commission on the Future of Health Care in Canada, August 2002, pp. 2-3

2)       Madore O, Tiedemann M, Parliamentary Information and Research Service. Private health care funding and delivery under the Canada Health Act. Ottawa: Library of Parliament; 2005: . Accessed 26 December 2009.


1. A discussion of these and other considerations can be found in the supplement to the 1993 Hastings Center Reports (Jonsen AR, Alexander S, Swazey JP, et al. Special Supplement: The Birth of Bioethics. The Hastings Center Report. 1993;23(6):S1-S16.) While it may be semantic and somewhat academic, this definition need not be founded in the scholoarly  literature, and it is not meant to be a pedantic imposition of a definition as much as simply a practical term of reference to be used for the rest of the text.

2. Statistics Canada. Canada Year Book 2008. Ottawa: Minister of Industry; 2009.

3. For more information on yearly demographic, population, health, and industry statistics visit the online version of the Canada Year Book published by Statistics Canada. The latest version at the time of writing is the 2008 version: .

4. Statistics Canada. Canada at a glance 2009. Ottawa: Communications Division; 2009.

5. Constitution Act 1867 (formerly British North American Act 1867), 30 & 31 Victoria, c. 3. (U.K.) (1867).

6. Constitution Act 1982 (being Schedule B to the Canada Act 1982 (U.K.)), c. 11 (1982).

7. More information on the terminology and its correct usage can be found at the Indian and Northern Affairs Canada website: .

8. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.).

9. Much of the information contained herein can be found and examined further by visiting the Justice Canada website and reviewing the freely available publications on these matters: .

10. Much of the information in this section is derived from the Citizenship and Immigration Canada website, a list of its publications with links to these can be found at: .

11. Citizenship and Immigration Canada. Annual report on the operation of The Canadian Multiculturalism Act (2007-2008). 20 ed: Citizenship and Immigration Canada,; 2009: Accessed 28 February 2011.

12. Most of the statistics discussed here are from the 2006 census data and anaylzed in the following document: Citizenship and Immigration Canada. Annual report on the operation of The Canadian Multiculturalism Act (2007-2008). 20 ed: Citizenship and Immigration Canada,; 2009: Accessed 4 December 2009. Further information can be found at ,part of the official Statistics Canada website.

13. Taken from the 2006 Census data found at Statistics Canada: .

14. This data is derived from the Canadian Institute for Health Information, . For more information the on this and related issues visit the CIHI homepage at: .

15. MacMillan HL, MacMillan AB, Offord DR, Dingle JL. Aboriginal health. CMAJ. Dec 1 1996;155(11):1569-1578.

16. Dewing M, Leman M, Political and Social Affairs Division. Current issue review: Canadian multiculturalism. Ottawa: Library of Parliament, Parliamentary Research Branch; 2006: Accessed 28 February 2011.

17. Canadian Multiculturalism Act, c. 31 (1988, assented to 21st July, 1988.).

18. Innovative Research Group. Canadian Values Study: Innovative Research Group, National Post, and Dominion Institute,; 2005: Accessed 17 January 2010.

19. Adams M, Langstaff A, Jamieson D. Fire and ice : United States, Canada, and the myth of converging values. Toronto: Penguin Canada; 2003.

20. Based on a poll conducted by Nanos Research released November 2009. Can be viewed at: .

21. Nanos N. Canadians overwhelmingly support universal health care. Policy Options. 2009(November). Accessed 17 January 2010.

22. Harris/Decima Research. Most say health care system working, No appetite for further privatization. 2009. Accessed 28 February 2011.

23. Based on a Canadian Broadcasting Corporation (CBC) poll run through 2004: .

24. POLLARA Research. The 10th Annual Health Care in Canada Survey: POLLARA Research;2007.

25. Gratzer D. Introduction. In: Gratzer D, ed. Better medicine : reforming Canadian health care. Toronto: ECW Press; 2002:15-28.

26. Lahey W. Chapter 1: Medicare and the law: Contours of an evolving relationship. In: Downie JG, Caulfield TA, Flood CM, eds. Canadian health law and policy. 3rd ed. Toronto: LexisNexis Canada; 2007:1-67.

27. Health Canada. Canada’s Health Care System: Ministry of Health; 2005: Accessed 28 February 2011.

28. Information in this section is drawn directly from the Health Canada website: ,  and from the online and print edition of Canada’s Health System published by the Ministry of Health (Health Canada. Canada’s Health Care System: Ministry of Health; 2005: More information and updated information, as well as a comprehensive introduction to the structure and function of Canada’s health care system that falls outside the scope of this text, can be found by visiting these websites.

29. The Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3.

30. Bliss M. Health care without hindrance: Medicare and the Canadian identity. In: Gratzer D, ed. Better Medicine: Reforming Canadian Health Care. Toronto: ECW Press; 2002:31-46.

31. Canada Health Act, R.S.C. 1985, c. C-6.

32. Medical practitioners were initially opposed to the single payer system, but finally warmed to the idea once it was clear that they would have fewer administrative headaches and payment that was guaranteed by the government itself.

33. The Canadian Institute for Health Information is a not-for-profit independent organization that receives government funding. It provides detailed statistics and analysis on the health care system and the health of Canadians. More information can be found at its website: .

34. Canadian Institute for Health Information. National Health Expenditure Trends, 1975-2005: CIHI; 2005.

35. Canadian Institute for Health Information. Health Care in Canada 2010. 2010. Accessed 28 February 2010.

36. OECD. OECD Health Data: How Does Canada Compare. 2010. Accessed 28 February 2010.

37. Canadian Institute for Health Information. Health Care in Canada 2009: A Decade in Review. Ottawa: CIHI; 2009.

38. Munson R. Chapter 8: Paying for health care. In: Munson R, ed. Intervention and reflection : basic issues in medical ethics. 7th ed. Australia ; Belmont, CA: Thomson/Wadsworth; 2004:507-558.

39. Bodenheimer T, Grumbach K. Chapter 14: Health care in four nations. Understanding health policy : a clinical approach. 5th ed. New York: McGraw-Hill Medical; 2009:163-180.

40. It should be noted that in many provinces physicians can “opt out” of the provincial plan entirely, and bill exclusively on a private basis, but if they are to avail themselves of billing the provincial insurance plan at all, they cannot seek third party or out of pocket payment for services covered under the provincial plan.

41. Detsky AS, Naylor CD. Canada’s health care system–reform delayed. N Engl J Med. Aug 21 2003;349(8):804-810.

42. Much more information on the workings of these agencies can be found at the Association of Workers’ Compensation Boards of Canada website: .

43. Church J, Barker P. Regionalization of health services in Canada: a critical perspective. International Journal Of Health Services: Planning, Administration, Evaluation. 1998;28(3):467-486.

44. For further insight see: Epps T. Chapter 2: Regulation of health care professionals. In: Downie JG, Caulfield TA, Flood CM, eds. Canadian health law and policy. 3rd ed. Toronto: LexisNexis Canada; 2007:69-100. This section draws significantly from this work.

45. Epps T. Chapter 2: Regulation of health care professionals. In: Downie JG, Caulfield TA, Flood CM, eds. Canadian health law and policy. 3rd ed. Toronto: LexisNexis Canada; 2007:69-100.

46. Statistics Canada. Life expectancy at birth, by sex, by province. 2010; Accessed 28 February 2010.

47. OECD. OECD (2009), Society at a glance– OECD Social indicators: Key findings: Canada. 2009. Accessed 28 February 2011.

48. OECD. OECD Health at a glance 2009: Key findings for Canada. 2009.,3343,en_2649_33929_44220787_1_1_1_1,00.html. Accessed 28 February 2011.

49. OECD. OECD Health data 2009: How does Canada compare. 2009. Accessed 28 February 2011.

50. An important distinction should be made about the notion of health (which is a concept that eludes clear definition) and health care. Not all health care leads to good health, we cannot assume that one is is synonymous or maps directly onto the other. Furthermore there is broad debate over whether health is a tangible “good” or whether it is merely an artificial concept that serves more as a place holder for the notion of well-being in whatever sense the discussion at hand demands. While health care is easier to define and quantify it too is difficult to calculate when disparities in it are talked about. Finally access to health care is commonly used in theories of justice as a more understandable tangible thing that can be talked about sensibly when considering disparities between members of a society.

51. Lasser KE, Himmelstein DU, Woolhandler S. Access to Care, Health Status, and Health Disparities in the United States and Canada: Results of a Cross-National Population-Based Survey. American Journal of Public Health. 2006;96(7):1300-1307.

52. Frohlich KL, Ross N, Richmond C. Health disparities in Canada today: Some evidence and a theoretical framework. Health Policy. 2006;79(2-3):132-143.

53. Raphael D, ed Social Determinants of Health: Canadian Perspectives. 2nd ed: Canadian Scholar’s Press; 2008.

54. Fang R, Kmetic A, Millar J, Drasic L. Disparities in chronic disease among Canada’s low-income populations. Prev Chronic Dis. Oct 2009;6(4):A115.

55. Commission on the Future of Health Care in Canada., Romanow RJ. Building on values : the future of health care in Canada. [Saskatoon]: Commission on the Future of Health Care in Canada; 2002.

56. DesMeules M, Canadian Population Health Initiative., Public Health Agency of Canada., Canadian Institute for Health Information. How healthy are rural Canadians? an assessment of their health status and health determinants. Ottawa, Ontario: Public Health Agency of Canada : Canadian Institute for Health Information; 2006: Accessed 28 February 2011.

57. Demers V, Melo M, Jackevicius C, et al. Comparison of provincial prescription drug plans and the impact on patients’ annual drug expenditures. CMAJ. February 12, 2008 2008;178(4):405-409.

58. Eggertson L. Abortion services in Canada: a patchwork quilt with many holes. CMAJ. March 20, 2001 2001;164(6):847-849.

59. Fowler RA, Sabur N, Li P, et al. Sex-and age-based differences in the delivery and outcomes of critical care. CMAJ. December 4, 2007 2007;177(12):1513-1519.

60. Baxter NN. Equal for whom? Addressing disparities in the Canadian medical system must become a national priority. CMAJ. December 4, 2007 2007;177(12):1522-1523.

61. The Standing Senate Committee on Social Affairs Science and Technology. The Health of Canadians – The Federal Role (Final report on the state of the health care system in Canada): Volume six: Recommendations for reform: The Standing Senate Committee on Social Affairs Science and Technology;2002.

62. This subject goes well beyond the scope of this text. More information on these government measures can be seen at the Health Canada website: . These programs include initiatives on curbing diabetes, in improving education, preventing Fetal Alcohol Syndrome and other prenatal interventions aimed at Aboriginal Canadians. In addition Indian and Northern Affairs Canada has implemented a number of programs on a broader environmental basis that focus on improving access to safe water and limiting environmental contaminants. More information on these can be found at the Indian and Northern Affairs Canada website: .

63. Ellerby JH, McKenzie J, McKay S, Gariepy GJ, Kaufert JM. Bioethics for clinicians: 18. Aboriginal cultures. CMAJ. Oct 3 2000;163(7):845-850.

64. Bodenheimer T, Grumbach K. Chapter 5: How health care is organized – I. Understanding health policy : a clinical approach. 5th ed. New York: McGraw-Hill Medical; 2009:43-57.

65. OECD. Health spending in most oecd countries rises, with the U.S far outstripping all others. OECD Health Data 2004,. 2004.,2340,en_2649_201185_31938380_1_1_1_1,00.html. Accessed 28 February 2011.

66. Postl BD, Health Canada., Federal Advisor on Wait Times (Canada). Final report of the Federal Advisor on Wait Times. Ottawa: Health Canada; 2006.

67. Canadian Institute for Health Information. Wait times tables – A comparison by province, 2009. 2009. Accessed 17 January 2010.

68. Caulfield TA. Wishful thinking: defining “medically necessary” in Canada. Health Law J. 1996;4:63-85.

69. Flood CM, Stabile M, Tuohy CH. The borders of solidarity: how countries determine the public/private mix in spending and the impact on health care. Health Matrix Clevel. Summer 2002;12(2):297-356.

70. Bodenheimer T, Grumbach K. Chapter 13: Medical ethics and the rationing of health care. Understanding health policy : a clinical approach. 5th ed. New York: McGraw-Hill Medical; 2009:147-162.

71. Some examples would include prostate screening and breast cancer screening. Should somewhat murky evidence for Prostate Specific Antigen testing be accepted and impel the government to make this test a routine screening procedure? At what age should mammography and breast cancer screening be implemented and to what extent should cost influence this decision?

72. It was just such an argument that forced the parents of several autistic children to challenge the BC government’s decision to stop funding a certain type of autism therapy. The Supreme Court of Canada ultimately decided against the families of the children and the challenge to physician exclusive services was not successful. (Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, 2004 Supreme Court of Canada 78).

73. For more information and for a good introduction to the philosophical issues as they emerge onto the Canadian legal and political scene see: Friesen T. The right to health care. Health Law J. 2001;9:205-222.

74. This liberal egalitarian view echoes John Rawls’ concern that people’s opportunity ranges should not be limited by morally arbitrary factors of which they have no control (e.g., being born with various health conditions, born into a poor family, etc.).  He argues that we all deserve fair and equal opportunities, and would not rationally want a society that allows undeserved poor fortune to rob people of their life opportunities.  Using the example of one’s health status, Norman Daniels takes this idea of fair equality of opportunity to argue that, since maintaining health or normal species functioning is often important in protecting the range of opportunities individuals can reasonably exercise, justice requires that the government helps ensure that its citizens have access to at least a decent minimum level of health care.  (See Rawls J. A Theory of Justice. Cambridge, Mass.: Belknap Press of Harvard University Press; 1971.  Also see Daniels N. Just health care. Cambridge Cambridgeshire ; New York: Cambridge University Press; 1985.)

75. Daniels N. Just health care. Cambridge Cambridgeshire ; New York: Cambridge University Press; 1985.

76. International Covenant on Economic, Social and Political Rights. 993 U.N.T.S. 3,entered into force Jan. 3, 1976. Ratified by Canada 19 May 1976.

77. International Covenant on Economic, Social and Political Rights. 993 U.N.T.S. 3. Section 12.

78. The Standing Senate Committee on Social Affairs Science and Technology. The Health of Canadians – The Federal Role Volume Four: Issues and Options: The Standing Senate Committee on Social Affairs Science and Technology;2001.

79. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.). Section 7.

80. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.). Section 15.

81. Friesen T. The right to health care. Health Law J. 2001;9:205-222.

82. Chaoulli v. Quebec (Attorney General). 2005 SCC 35., (Supreme Court of Canada 2005).

83. This echoes Engelhardt’s idea of “egalitarianism of envy,” which says that the good fortune of having more resources than another may be considered unfair in itself, and that it would be legitimate to make everyone worse off if that would achieve a more equal distribution of resources.  In Engelhardt’s own example, “egalitarianism of envy endorses a world in which no one had access to lung transplant (or other high cost interventions) over a world in which only the rich would have access.”  (See Engelhardt H. T. The Foundations of Bioethics. Second Edition.  New York: Oxford University Press; 1996, pp. 384-7.)

84. Cohn D. Chaoulli Five Years On: All Bark and No Bite? 2010 Annual Meeting of the Canadian Political Science Association. Concordia University, Montreal, Quebec2010.

85. Quesnel-Vallee A, Bourque M, Fedick C, Maioni A. In the aftermath of Chaoulli v. Quebec: Whose opinion prevailed? CMAJ. October 24, 2006 2006;175(9):1051-.

86. Kenny N, Chafe R. Pushing right against the evidence: turbulent times for Canadian health care. Hastings Cent Rep. Sep-Oct 2007;37(5):24-26.

87. Mehra N. Eroding public medicare: lessons and consequences of for-profit health care across Canada2008: Accessed 28 February 2011.

88. For an introduction to the notion of “painful” and “painless” cost control see: Bodenheimer T, Grumbach K. Understanding health policy : a clinical approach. 4th ed. New York: Lange Medical Books/McGraw-Hill, Medical Pub. Division; 2005.

89. Beland F. Arithmetic failure and the myth of the unsustainability of universal health insurance. CMAJ. July 3, 2007 2007;177(1):54-56.

90. Dhalla I. Canada’s health care system and the sustainability paradox. CMAJ. July 3, 2007 2007;177(1):51-53.

91. MacKinnon JC. The arithmetic of health care. CMAJ. September 14, 2004 2004;171(6):603-604.

92. Gratzer D. Better medicine : reforming Canadian health care. Toronto: ECW Press; 2002.

93. Lett D. Private health clinics remain unregulated in most of Canada. CMAJ. April 8, 2008 2008;178(8):986-987.

94. CMA Task Force on the Public-Private Interface. It’s About Access! Informing the debate on public and private health care. 2006. Accessed 28 February 2010.

95. Alberta Premier’s Advisory Council on Health. A framework for reform : report of the Premier’s Advisory Council on Health. Edmonton: Premier’s Advisory Council on Health; 2001.

96. Studied to death? CBC News, In Depth: Health Care. 2005. Accessed 28 February 2011.


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