“The most advanced justice system in the world is a failure if it does not provide accessible justice to the people it is meant to serve.”
That was Chief Justice Beverley McLachlin speaking last year. Now, a landmark Charter health-care case in British Columbia is showing just how empty the promise of access to justice can be if the government is determined to block it.
The plaintiffs’ case is straightforward: if the government fails to provide patients with timely medical treatment, then it cannot stop them from taking control of their own health and arranging for private treatment to alleviate their suffering.
The Supreme Court of Canada held that such restrictions violated the patients’ rights more than a decade ago. Since then, provinces have continued to unconstitutionally restrict patient choice even as the problem of wait lists has worsened.
No one seriously disputes that our provincial health-care monopolies have reached a breaking point.
There are 85,000 people on wait lists in BC alone, and times for consultations and procedures regularly exceed medical guidelines. Rationing has become an essential part of Canadian health care.
You would think these facts would be easy to establish, so that the case could focus on the key question of whether these wait lists violate patients’ right to security of the person. Unfortunately, while the government can’t deny the facts they have another option: obstruct the admission of evidence and use their unlimited resources to drag the case out until the plaintiffs’ resources are exhausted.
BC’s lawyers are exploiting every legal trick to make the evidentiary process as expensive and time-consuming as possible. This has included challenging the qualifications of renowned experts, denying the admissibility of their own statistics, and even objecting to physicians testifying about their own patients. As a result, after seven months in court more time has been wasted fighting over the admissibility of evidence than actually hearing it.
The government is, of course, free to defend its policies, but exploiting unlimited taxpayer resources to stall a trial for months looks an awful lot like trying to win by default because they can’t win on the merits.
The trial was recently adjourned until September to allow the government to produce documents they should have produced months ago. The adjournment will hopefully also give the plaintiffs time to raise enough funds to finish the case.
The plaintiffs are determined to overcome the government’s procedural gamesmanship because they know they have the facts and the law on their side. They also know that, considering what this case has cost in time and money, it is unlikely anyone will be able to mount such a challenge again. For patients’ rights and health-care choice, this is the time and this is the case.
Canadians can no longer afford to pretend that the public health-care monopoly can take care of all our medical needs and governments can no longer continue to deny suffering patients the control of their own health and the choices that citizens of every other developed country, from the U.K. to Australia, have.
Decades of inaction have showed that governments won’t undertake real reforms, no matter how far
Canada falls behind our peer countries. It will take patients standing up for themselves in court and asserting their constitutional rights to force change.
But what good are our rights, if governments make it all-but impossible to enforce them?