On July 15, the B.C. Court of Appeal released a long awaited decision in a case that strikes at the heart of Canada’s failing and sclerotic government monopoly healthcare system. A healthcare system that is ravaged by overwhelming demand on a good day (let alone when faced with a historic pandemic). It is a government system that leaves patients suffering, and sometimes dying, on seemingly endless waitlists, yet denies these patients the ability to pay for their own care when the government system fails them.
There is no constitutional right to healthcare. However, when a province assumes a monopoly power over the provision of medical services it is under a constitutional duty to ensure that the service is provided in a timely fashion. If it fails to meet this duty, it cannot also prevent private individuals from going outside of the public system for care. This is what was argued by the appellants in Cambie Surgeries Corporation v British Columbia (Attorney General).
The Cambie case was brought by a group of private B.C. surgical centres and by patients who have suffered the consequences of lengthy medical wait times in the government system. But, unfortunately for these patients the three judge panel at the B.C. Court of Appeal dismissed the appeal.
The reason for the dismissal is confusing and rife with cognitive and legal dissonance.
The Charter of Rights and Freedoms is a classical liberal document. It guarantees specified fundamental rights of the individual against the state. The Cambie appeal dealt with the rights to life and security of the person, and whether the B.C. government’s laws cause harm to patients by forcing them to wait for government medical care and prohibiting private healthcare alternatives.
The positive news for patients is that the B.C. Court of Appeal found that the B.C. laws do harm patients. The majority justices wrote that the judge in the initial lawsuit had understated the harms suffered by patients forced onto government healthcare wait lists, and that the trial judge minimized the scale and impact of the Charter infringements on thousands of patients who were forced to wait beyond benchmarks for required care. Many of these patients would have the option of seeking timely private care but for the impugned provisions. The Court of Appeal then went further by finding not only did the trial judge err by minimizing the harm to patients security of person, but also by failing to acknowledge that wait times could even lead to death. The charter’s section 7 guarantee to life is engaged by these restrictions on private healthcare.
It’s fairly shocking, then, that the appeal was ultimately dismissed. Despite demonstrated harms to the patients and even a risk to patient lives, the majority of the B.C. Court of Appeal found that the government restrictions on private care are consistent with the principles of fundamental justice; a necessary sacrifice to preserve the sanctity of our public healthcare system.
The Cambie appeal court repeatedly failed to constrain its analysis to the rightful point of departure of any Charter analysis — does a state law or action harm an individual? As they acknowledge, the task is to “focus relentlessly on the rights of the individual claimant, to accept that the effect on the rights of even one person can be inconsistent with the principles of fundamental justice.”
However, after noting this, the judges jump immediately to a balancing question, whether “the seriousness of the deprivation is totally out of sync with the objective of the measure.” This quote is taken from an important Section 7 case which found that prostitution-related prohibitions deprived rights in a way that was grossly disproportionate. Prohibitions against medically assisted suicide were also found to be grossly disproportionate. But not a prohibition that could lead to the paralysis of a child. A prohibition that could trap patients in a government monopoly that is failing to treat their cancer. A prohibition the Court of Appeal itself acknowledges could lead to death.
Justice Lauri Ann Fenlon wrote a separate concurring judgment where she too found that the B.C. laws violated the right to life and security of patients. But, unlike the majority, Justice Fenlon held that the violations were not consistent with the principles of fundamental justice. “A law that causes patients to wait beyond a medically determined benchmark and thereby to incur an increased risk to life and limb in order to preserve a system intended to provide timely necessary care based on need is a law whose effects are inconsistent with its purpose and is, therefore, arbitrary in respect of those patients,” she wrote.
This then required an analysis of whether the violations are justified under the Charter’s section 1 — the “balancing” clause which asks whether rights violations can be justified in a free and democratic society. The only precedent for such a finding involving the right to security of the person is a 2016 Ontario Court of Appeal decision, R. v Michaud, which was denied leave by the Supreme Court of Canada. Section 7 rights go to the core of our value and dignity as citizens, and Justice Fenlon rightly resisted minimizing the obvious harms of a law which demonstrably imperilled the health of individuals.
Justice Fenlon ultimately found that the violation was justified, based on deference to the “complexity” of balancing social and legislative priorities within the public care system. She deferred to the trial judge’s findings that the importance of barring a private healthcare system was necessary to protect the public system, and more broadly, the ‘common good’. The trial judge made this finding despite evidence at trial that the de facto existence of private care in British Columbia over the past twenty years had no deleterious effects, and that Canada suffers some of the longest wait times amongst developed countries.
Justice Fenlon concluded her analysis by noting that she recognized “the legal dissonance in finding that a law that does not accord with the principles of fundamental justice is nonetheless constitutional.” Legal dissonance is right. Either we are faithful to fundamental principles of justice or we are not. The Supreme Court will have to harness this opportunity to unwind this dissonance in the inevitable appeal.
Joanna Baron is the executive director of the Canadian Constitution Foundation and Christine Van Geyn is the litigation director at the Canadian Constitution Foundation. The CCF is supporting the Cambie challenge to B.C.’s Medicare Protection Act.
This article was originally published in the National Post.