Ian Mulgrew: Medicare trial showcases legal complacency

Ian Mulgrew: Medicare trial showcases legal complacency

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The much-delayed marathon constitutional challenge to Medicare, which began in September 2016 and has crawled through nearly 100 days of court time, now won’t resume hearing testimony until April.

Adjourned late last year, the constitutional challenge currently NOT being heard in B.C. Supreme Court is an epic example of the legal culture of complacency denounced by the Supreme Court of Canada and the impotence of the public’s use of the judicial check on bad government.

Justice John Steeves has made himself a poster boy for judges who won’t properly manage trials or run their courtrooms with any eye on procedural efficiency and the timely resolution of disputes.

Nearly a decade in gestation, this litigation epitomizes the dysfunction — a dispute of this importance should not become so bogged down in procedural wrangling that after 16 months the plaintiff’s case still has not been fully heard.

Dr. Brian Day, of the Cambie Surgical Centre and the face of the trial, still hasn’t testified and government objections to what he has to say have resulted in him having to submit some of what he has to say by affidavit, some by testimony.

Court fees alone are into six figures, and I would hazard a guess that government legal costs are well into seven digits. If it stays on the rails, the trial will coast through its second anniversary.

This mess is even more of an indictment when you consider that the Supreme Court of Canada parsed the major issues at play and articulated the standards that should apply.

In its 2005 Chaoulli ruling, the high court said “access to a waiting list was not access to health care” and concluded restrictions on access to private care in Quebec were unconstitutional because the rationing of health care had created dangerous waiting times.

B.C.’s Medicare Protection Act contains similar provisions that the plaintiffs say don’t serve a valid purpose and violate three principles of fundamental justice — they are arbitrary, overly broad and grossly disproportionate.

This trial should have been a relatively brief affair where the government provided data about waiting lists and the parties and intervenors submit evidence and argument about the resulting dangers — whether those queues exacerbate suffering or needless death.

Given the multi-faced and multi-disciplinary nature of the debate, the plaintiffs suggested Steeves accept Brandeis-style briefs from the parties.

First used by future U.S. justice Louis Brandeis more than a century ago to support a law restricting the number of hours a woman could work, such briefs braid social science, scientific information and commentary.

Common in American law, used sparingly in Canada, they allow material to be accepted into evidence without procedural objections and, during deliberation, the judge can decide what weight if any to give the specific material.

Steeves rejected that inclusive, time-saving approach, and this trial has been thrown into a muddle by Victoria’s exclusionary legal strategy to constrain testimony and restrict the information the two clinics and representative patients seek to present.

Despite half-hearted official attempts to deal with dangerous, too-long surgical waiting lists, after two decades the situation is not better, but worse.

Both main political parties are to blame for a generation of misleading rhetoric and neither wants to open up a can of worms by embracing the clinics.

Even in Quebec, despite the Supreme Court of Canada ruling, the provision of private care remains a controversial political flashpoint.

Dr. Jacques Chaoulli, who was behind the turn-of-the-century constitutional challenge, grew so disillusioned at the continuing government and medical opposition to supplementing the public system with private care that he left to practice in France.

Maybe Victoria hopes Day will likewise tire of banging his head against a wall and go back to Liverpool.

Steeves has presided over a process that has wasted time, poured money into legal pockets and done little to resolve the issue of whether this law condemns ordinary British Columbians to unnecessary suffering and perhaps death.

Neither he nor the government appear to give a damn about the harms wait-lists may be causing or the disconnect that while maintaining its one service for all, Victoria exempts those covered by workers’ compensation, RCMP officers, Canadian Armed Forces members, federal prisoners, ICBC clients, professional athletes…

Why can cops, soldiers, prisoners and the Canucks get treatment in private clinics but the rest of us cannot? Why can people covered by Workers’ Compensation be treated privately and the rest of us cannot?

The claim that British Columbians have a single-tier, egalitarian medical system is a George Orwell-style Big Lie.

Over the last 20 years, more than 60 private B.C. clinics have treated roughly 60,000 people a year, saving the government $300 million. How damaging are the wait-lists? And what’s wrong with using the clinics to eliminate them?

Unfortunately, Justice Steeves has helped the government forestall an honest debate about the situation.