Policy Research Institute, Ministry of Finance, Japan, Public Policy Review, vol.8, no.2, July 2012 191 Canada’s Approach to the Public/Private Divide and the Perils of Reform via Court Challenge † Colleen M. Flood ‡ Canada Research Chair in Health Law & Policy, University of Toronto Abstract In both Canada and Japan court challenges are underway to allow a greater role for private payment. This article explains how Canadian courts to date have misunderstood the very different roles private payment (specifically private health insurance) plays across different health care systems. I illustrate this by situating Canada in a typology of health cares systems vis-à-vis the role for private health insurance. I argue that striking down existing laws restricting private payment in Canada’s system is not likely to result, as some argue, in Canada transforming into a “superior” European heath care system such as exists in France, the Netherlands, Germany, etc. Instead, the Canadian system will shift closer to a “Duplicate Private Health Insurance” model such as seen in New Zealand and England which is not likely to result in improvements in either equity or efficiency. I conclude that with the evidence base as complicated as it is, inevitably governments must exercise discretion in choosing how to organize and regulate a health care system, and courts – whether in Canada or Japan - should be extremely cautious of wading in to circumvent a government’s choices. I. Introduction Courts around the world are increasingly called upon to adjudicate health care rights. They may be asked to adjudicate claims by individual litigants for public funding of new drugs or therapies, or to adjudicate claims by private interests seeking to liberalize a system in the pursuit of more returns. As I write, for example, the US Supreme Court is hearing challenges to President Obama’s health reform legislation; an attempt to move towards universal coverage by requiring Americans to buy health insurance and preventing † Part of this paper draws upon an earlier published paper “Blurring of the Public/Private Divide: The Canadian Chapter” (with Bryan Thomas) (2010) 17 European Journal of Health Law 257-278 ‡ email:colleen.flood@utoronto.ca