Stanisław Jerzy Lec and Chaoulli v Quebec (AG)

Stanisław Jerzy Lec (Polish pronunciation: ; 6 March 1909 – 7 May 1966), born Baron Stanisław Jerzy de Tusch-Letz, was a Polish poet and aphorist. Often mentioned among the greatest writers of post-war Poland, he was one of the more influential aphorists on the 20th century, known for lyrical poetry and skeptical philosophical-moral aphorisms, often with a political subtext.

Contents 1 Biography 2 Works 3 Family 4 Lec's aphorisms 5 Main works 6 References 7 External links 8 Bibliography

Biography

Son of the Baron Benon de Tusch-Letz and Adela Safrin, he was born on 6 March 1909 in Lviv (then Lemberg, Austro-Hungarian Empire) to a Galician-Jewish gentry family. The family moved to Vienna at the onset of First World War, and Lec received his early education there. After the war the family returned to Lviv (then Lwów in the Second Polish Republic) to continue his schooling at the Lemberg Evangelical School. In 1927 he matriculated at Lwów's Jan Kazimierz University in Polish language and law.

His literary debut was in 1929. Much of his early work was lyrical poetry appearing in left-wing and communist magazines. He collaborated with the communist “Dziennik Popularny" between 1933 and 1936. In 1935 he co-founded satirical magazine Szpilki (Pins). A "literary cabaret" he founded there in collaboration with Leon Pasternak in 1936 was closed by the authorities after several performances. Nor did his law-abiding image improve after he took part in the Convention of Culture Workers, a radical congress initiated by the international communist movement Popular Front on the same year. Later that year he spent few months in Romania, afraid that his activism could led to his arrest in Poland. He spent the next two years in Warsaw, collaborating with a number of others left-leaning publication outlets.

Following German invasion of Poland on 1 September 1939, Lec fled Warsaw, returning to his hometown, Lwów. Lec spent the years 1939–1941 there, while the city along with the rest of Polish Eastern Borderlands was occupied by the Soviet Union after the latter country's attack on Poland on 17 September 1939. While in Soviet Union, Lec joined in the literary life under the auspices of the Ukr.SSR authorities. He collaborated with the “New Horizons” magazine. His poems, satires, articles, and translations from Russian were published in ”Krasnoe Znamya” magazine. In 1940 he joined the Union of Soviet Writers of Ukraine. and became a member of the editorial board of “The Literary Almanac” in Lvov. Through this and similar activities he became known as one of the most prolific Polish pro-Soviet writers, producing numerous works praising the Soviet regime. including one of the first, if not the first, "poems" to glorify Stalin ever written in the Polish language. A number of his works appeared in the Czerwony Sztandar (Red Banner) magazine. On 19 November 1939 Lec signed a resolution calling for the incorporation of Polish Eastern Borderlands into the territory of the Soviet Union. Lec collaboration with the Soviet authorities remains controversial to this day, through he has been defended by Adam Michnik who wrote in his 2007 book that Lec has been unfairly branded by critical opinion as a "Soviet collaborator" on the basis of "the weakest, least successful, or most frankly conformist pieces".

After Nazi Germany's attack on the Soviet Union he was imprisoned in a German work camp in Ternopol, from which he made several attempts to escape. He received a death sentence for his second attempt to escape, but managed to successfully escape in 1943 again after killing his guard with a shovel when taken to dig his own grave. This became the subject of оne of his most famous poems "He who had dug his own grave" (from the cycle "To Abel and Cain"):

He who had dug his own grave looks attentively at the gravedigger's work, but not pedantically: for this one digs a grave not for himself.

After that he participated in partisan warfare within the communist formations of Polish resistance (the Gwardia Ludowa and the Armia Ludowa), and eventually served in regular units of Polish People's Army until the end of the war, which he finished in the rank of major. He also edited the communist resistance underground newsletter Żołnierz w Boju (Soldier in Combat) and the communist magazine Wolny Lud (Free Nation).

Lec's wartime service allowed him to obtain a diplomatic post as a cultural attaché in Vienna. Becoming disillusioned with the Communist government he left for Israel in 1950 with his wife, son and daughter. Lec couldn't adapt to the life in Israel and returned to Poland with his son after two years there. His wife and daughter remained in Israel. He moved to a small town where he was in underground during the war and remarried there before returning to Warsaw. At first he worked as a translator, as the Polish communist authorities repressed him by taking away any rights to write or publish until the late 1950s. He was immensely popular and despite anti-communist and anti-totalitarian of his latter works he was given an official state funeral in Warsaw when he died on 7 May 1966. That year he was awarded the Officer cross of "Polonia Restituta". Works

Lec's early works were primarily lyrical poetry. In his later years, he became known for aphorisms and epigrams. He was influenced by religious (Jewish and Christian) as well as European cultural traditions. In his works he often modernized ancient messages, while preserving their universality. His notable poems such as Notatnik polowy (Field Notebook; 1946), Rękopis Jerozolimski (The Jerusalem Manuscript; 1950–1952, reedited in 1956 and 1957), and Do Kaina i Abla (To Cain and Abel; 1961) had a theme of exploring the world through irony, melancholy, and nostalgia. His later works, usually very short (aphorisms), through techniques such as wordplay, paradox, nonsense, abstract humor, and didacticism convey philosophical thoughts through single phrases and sentences. Collections of Lec’s aphorisms and epigrams include Z tysiąca jednej fraszki (From a Thousand and One Trifles; 1959), Fraszkobranie (Gathering Trifles; 1967); and Myśli nieuczesane (Unkempt Thoughts; 1957, followed by sequels in 1964 and 1966).

His work has been translated into a number of languages, including English, German, Slovak, Dutch, Italian, Serbian, Croatian, Swedish, Czech, Finnish, Bulgarian ad Spanish. Family

Lec was married twice, first with Elżbieta Rusiewicz, with whom he had a son Jan (1949) and a daughter Małgorzata (1950), and second with Krystyna Świętońska, with whom he had a son Tomasz. Lec's aphorisms Beyond each corner new directions lie in wait. The exit is usually where the entrance was. He who limps is still walking. In a war of ideas it is people who get killed. The mob shouts with one big mouth and eats with a thousand little ones. Even a glass eye can see its blindness. To whom should we marry Freedom, to make it multiply? I am against using death as a punishment. I am also against using it as a reward. You can close your eyes to reality but not to memories. Optimists and pessimists differ only on the date of the end of the world. Is it a progress if a cannibal is using knife and fork? If a man who cannot count finds a four-leaf clover, is he lucky? No snowflake in an avalanche ever feels responsible. All is in the hands of man. Therefore wash them often. Do not ask God the way to heaven; he will show you the hardest one. If you are not a psychiatrist, stay away from idiots. They are too stupid to pay a layman for his company. Thoughts, like fleas, jump from man to man, but they don't bite everybody. The first condition of immortality is death. Suppose you succeed in breaking the wall with your head. And what, then, will you do in the next cell? When smashing monuments, save the pedestals—they always come in handy. Main works Barwy, poems (1933) Spacer cynika, satire and epigrams (1946) Notatnik polowy, poems (1946) Życie jest fraszką, satire and epigrams (1948) Nowe wiersze (1950) Rękopis jerozolimski (1956) Unkempt Thoughts (Myśli nieuczesane) (1957) Z tysiąca i jednej fraszki (1959) Kpię i pytam o drogę (1959) Do Abla i Kaina (1961) List gonczy (1963) More Unkempt Thoughts (Myśli nieuczesane nowe) (1964) Poema gotowe do skoku (1964) Fraszkobranie (1966)

Chaoulli v Quebec (AG) and Stanisław Jerzy Lec

Contents 1 Background 2 Court's opinions 2.1 Deschamps 2.2 McLachlin and Major 2.3 Binnie and LeBel 3 Aftermath 4 See also 5 References 6 External links 6.1 Court documents 6.2 Analysis 6.3 Press reports

Background

Having suffered in the past from numerous health problems including a hip replacement, 73-year-old salesman George Zeliotis became an advocate for reducing waiting times for patients in Quebec hospitals.

Jacques Chaoulli is a doctor who provided home appointments to patients. He attempted to get a licence to offer his services as an independent private hospital but was rejected due to provincial legislation prohibiting private health insurance.

Together, the two men sought a declaratory judgment to contest the prohibition. Court's opinions

Three separate opinions were written. The first is by Deschamps who found only a violation of the Quebec Charter. A second opinion was written by McLachlin C.J. and Major J., with Bastarache J. concurring, on the violation of section seven. A dissenting opinion was given by Binnie and LeBel JJ. with Fish J. concurring in dissent. Deschamps

Deschamps begins by identifying the issue as being whether the prohibition is "justified by the need to preserve the integrity of the public system" and not questioning the single-tier health system itself. In examining the legislative context of the case, she warns against politicizing the issue and against taking an emotional tone to the judgment.

The appeal court's characterization of the issue as an infringement of an economic right is rejected by Deschamps. She goes on to note that the long waits at hospitals can result in deaths and that private health care prohibited by the Quebec Acts would likely have saved those lives. The wait lists, she claims, are an implicit form of rationing, and it is the government's rationing policy that is being challenged here as a violation of the right to "security of person" (per Canadian Charter) and "personal inviolability" (per Quebec Charter).

Deschamps sides with the trial judge, who found a violation of section 7 of the Canadian Charter, but she interprets it as being more of a violation of the similar section 1 of the Quebec Charter. She adopts a broad interpretation, citing R. v. Morgentaler among others as examples of delay in medical treatment as a violation of security of person. She further rejects the dissenters' suggestion that a patient could seek medical treatment outside of the province as too extreme and case-specific.

Turning to the requisite analysis to justify the violation, Deschamps points to the "minimal impairment" expectation to be the one of most interest. Expert and witness testimony was examined of which she found it to be not particularly credible or useful. She then examines other provinces' health legislation, finding the lack of prohibitory legislation allows her to conclude that the Quebec Acts are not necessary to preserve the public health plan. Studies on public health programs in other countries examined by Deschamps support this claim.

The issue of deference to government is considered. "When the courts are given the tools they need to make a decision, they should not hesitate to assume their responsibilities," she states, claiming that social policies developed by the government should not be shied away from by the courts. Deference should be given only with a justification consistent with democratic values and sufficiently necessary to maintain public order.

In concluding, Deschamp points her finger squarely at the government and suggests the need for change: For many years, the government has failed to act; the situation continues to deteriorate. This is not a case in which missing scientific data would allow for a more informed decision to be made. The principle of prudence that is so popular in matters relating to the environment and to medical research cannot be transposed to this case. Under the Quebec plan, the government can control its human resources in various ways, whether by using the time of professionals who have already reached the maximum for payment by the state, by applying the provision that authorizes it to compel even nonparticipating physicians to provide services (s. 30 HEIA) or by implementing less restrictive measures, like those adopted in the four Canadian provinces that do not prohibit private insurance or in the other OECD countries. While the government has the power to decide what measures to adopt, it cannot choose to do nothing in the face of the violation of Quebecers' right to security. The government has not given reasons for its failure to act. Inertia cannot be used as an argument to justify deference. McLachlin and Major

Both McLachlin and Major agree with Deschamp's reasoning but rely more on section 7 and section 1 of the Canadian Charter to reach the same outcome. They observe that the "Charter does not confer a freestanding constitutional right to health care. However, where the government puts in place a scheme to provide health care, that scheme must comply with the Charter."

To determine a violation of the Charter, they look at how the Quebec Acts differ from the Canada Health Act'. They note that unlike with other legislation, the impugned Acts remove the ability to contract for private health care insurance and in effect create a virtual monopoly for the public health system. On the evidence of significant delays in service, this monopoly harms the right to security of person. Delays in medical treatment could have physical and stressful consequences.

In reviewing the public health care systems of several countries they find that the connection was missing. In defence of this, they criticize the dissenters' rejection of international data as well and reliance on what they characterized as inconsistent reports from Romanow and Senator Kirby. Binnie and LeBel

They begin by phrasing the question as being not one of rationing, but rather whether the province of Quebec not only has the constitutional authority to establish a comprehensive single-tier health plan, but to discourage a second (private) tier health sector by prohibiting the purchase and sale of private health insurance.

They then describe the problem as an issue of public policy and social values which is not for the courts to decide. In our view, the appellants' case does not rest on constitutional law but on their disagreement with the Quebec government on aspects of its social policy. The proper forum to determine the social policy of Quebec in this matter is the National Assembly.

The characterization of the problem by the majority contains too much ambiguity, they claim. How can the court determine what is a "reasonable" wait time, they ask?

Binnie and LeBel primarily take issue with the majority's claim that the law is arbitrary contrary to the principles of fundamental justice. appellants' argument about "arbitrariness" is based largely on generalizations about the public system drawn from fragmentary experience, an overly optimistic view of the benefits offered by private health insurance, an oversimplified view of the adverse effects on the public health system of permitting private sector health services to flourish and an overly interventionist view of the role the courts should play in trying to supply a "fix" to the failings, real or perceived, of major social programs.

The dissenters' interpretation of the legislation finds a rational connection to the objectives of the Canadian Health Act: Not all Canadian provinces prohibit private health insurance, but all of them take steps to protect the public health system by discouraging the private sector... the mixture of deterrents differs from province to province, but the underlying policies flow from the Canada Health Act and are the same: i.e. as a matter of principle, health care should be based on need, not wealth, and as a matter of practicality the provinces judge that growth of the private sector will undermine the strength of the Canada Health Act.

They admit agreeing with the majority and the trial judge that the law will put some Quebecers life and "security of person" at risk, but they do not see the matter being resolved by or applicable to the constitution. They state that "it will likely be a rare case where s. 7 will apply in circumstances entirely unrelated to adjudicative or administrative proceedings." However, they claim, this is not one of those times. Instead, they lament the overextension of the constitution: The Court has been moving away from a narrow approach to s. 7, which restricted the scope of the section to legal rights to be interpreted in light of the rights enumerated in ss. 8-14.

In effect, the dissenters say, the Court is only protecting the right to contract and pushing Canada into its own Lochner era, while dismissing those that claimed privatizing will not necessarily solve the problem.

They characterize the majority's use of the word "arbitrary" as meaning "unnecessary," claiming that if that were true, it would require the courts to interfere too much with lawmakers.

The dissenters' final objection is the majority's expansion of the reasoning in R. v. Morgentaler. Binnie and LeBel distinguish R. v. Morgentaler from the current case, as the former was about "manifest unfairness" and criminal liability, not arbitrariness and public health policy, which, they claim, requires a very different analytical approach.
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