Interactions: trade policy and healthcare reform after Chaoulli v. Quebec: is it time for Canada to acknowledge the fragile boundary between health and trade policies and strengthen the separation between private and public health insurance?

The insulation of Canada's healthcare system from trade treaty obligations is crucial to the legitimacy of Canada's trade policy. Legal analysis has suggested, however, that competitive and for-profit delivery of the kind contemplated by the Kirby Report and some provinces may make healthcare more vulnerable to challenges under NAFTA and GATS. The Government of Canada has tried to counter this interpretation by stressing the importance of public financing as the principal criterion for exemption of healthcare from trade treaties, but now the potential for private financing of essential medical services indicated by the Supreme Court's decision in Chaoulli v. Quebec has made that line of argument look risky as well. It is apparent that Canada failed to anticipate the possible interactions of domestic, international and constitutional law when it made commitments in the area of private health insurance at the WTO in 1997. Accordingly, the time has come to acknowledge the fragility of the boundary between health and trade policies, to take the risks and costs associated with trade treaty obligations fully into account when undertaking healthcare reform and to strengthen the separation between private and public health insurance.