Juno News - BC Supreme Court sides with activists over patients

00:00:00.880 You're tuned in to The Andrew Long Show.

00:00:08.340 Yesterday, the British Columbia Supreme Court ruled on the Canby Surgical Center's case.

00:00:14.680 This is a case of a private surgical clinic led by Dr. Brian Day in Vancouver that has had 10 years of litigation going,

00:00:22.240 actually, I think 11 now, against the B.C. government protesting the bans and restrictions that the B.C. government has on private health care providers like the Canby Clinic.

00:00:33.340 And Dr. Day has basically argued that when you have massive wait lists, patients unable to access health care,

00:00:39.820 and these surgical centers and surgeons that are able and willing to help them,

00:00:43.840 it's a violation of those patients' right to the security of the person for the government to do things to say,

00:00:50.240 no, no, no, you can't operate, you can't provide these treatments for money.

00:00:54.140 Of course, the activists don't like it because they want to preserve and cling to this idea of a universal health care system,

00:01:01.260 which, while noble, is not working for a lot of Canadians and for some of the patient plaintiffs that were in this case.

00:01:08.880 But, of course, the ruling handed down came against Dr. Day and the clinic and the patients,

00:01:14.380 and basically defended this idea that we must, at all costs, preserve and protect the universal health care system,

00:01:21.520 even flying in the face of the facts of the case, which say that these patients' rights are being deprived.

00:01:28.400 And we'll talk about that right now with Joanna Barron, who is the Executive Director of the Canadian Constitution Foundation.

00:01:35.700 Joanna, thank you so much for coming on today. Really great to speak with you.

00:01:38.960 Good to be here with you, Andrew.

00:01:40.000 Now, I know that this was not the decision that you had anticipated, or should I say hoped for,

00:01:45.800 certainly not the one I had hoped for.

00:01:47.600 Just for context, the CCF wasn't an intervener in the main trial, correct?

00:01:52.900 No, we're supporting the litigation.

00:01:55.340 So we're supporting Dr. Day and the Canby Surgery Centre with assisting fundraising communications,

00:02:01.500 because we really believe that the outcome of this case, which is not final, and what I'm sure we'll get to that in a moment,

00:02:08.420 has repercussions for all Canadians.

00:02:11.220 And more specifically, the government's actions in B.C. represent a violation of the charter rights,

00:02:17.060 which are enjoyed by all Canadians.

00:02:18.320 So that's our interest in this case, is the constitutional rights and violations.

00:02:22.740 And I think that's a great place to start off here.

00:02:25.080 Now, I haven't read through all 800 and some odd pages of it, but I've read through a lot of the key points of the decision.

00:02:31.100 And before the decision was released, my thought was that really at stake was whether the rights of patients

00:02:37.140 who are stuck on wait lists, who aren't able to access care in the public system,

00:02:41.320 whether their rights are violated by all of the restrictions on private health care.

00:02:46.020 And I was quite shocked, actually, reading through the decision to see that the court accepted that.

00:02:50.980 The court actually accepted that their rights are violated, but ultimately said that wasn't enough to say that

00:02:56.960 these bans should be found unconstitutional. Explain that for me.

00:03:00.920 Yeah, so as you mentioned, the decision is 880 pages, so we're still digesting it.

00:03:06.080 But the really nub of the important finding was that, as you mentioned,

00:03:10.700 there were multiple findings of fact made that the patient plaintiffs, one of which is deceased,

00:03:16.240 one of which is permanently paralyzed, one of which was a competitive soccer player.

00:03:21.220 And because she didn't receive knee surgery in time, she was deprived of her college soccer scholarship.

00:03:28.180 So, of course, the judge couldn't but find that there was there was a violation of their rights.

00:03:33.800 However, he found that the violation effectuated was not arbitrary or overbroad.

00:03:40.700 And I find that to be a very difficult needle to thread, especially in light of.

00:03:45.780 And so the Charter right that we're speaking about here is Section 7,

00:03:49.220 the right to life, liberty and security of the person.

00:03:52.320 Previously, the Supreme Court of Canada has found that state actions such as preventing prostitutes

00:03:58.580 from running body houses or hiring security, preventing terminally ill or debilitating ill people

00:04:06.040 from seeking physician-assisted suicides, as well as preventing drug addicts from seeking safe injection sites.

00:04:12.700 All of those government actions were found to be arbitrary and unjustified violations of Section 7.

00:04:20.060 The fact that 30,000 British Columbians each year suffer on waiting lists that exceed the government's own targets

00:04:28.440 do not meet that threshold, frankly, should shock the conscience of all Canadians.

00:04:33.960 It really seemed like the court was defending this idea of the public health care system

00:04:41.180 in spite of the facts of what that system's effect is on a lot of people.

00:04:45.800 And I don't know if I'm reading, perhaps, an ideological component into this that isn't necessarily there.

00:04:51.120 But especially when I was looking at one of the concluding remarks in it,

00:04:55.080 and I'll pull up the exact quote here from it,

00:04:58.200 it's that the court found that, quote, preserving and ensuring the sustainability of the universal public health care system, unquote,

00:05:05.420 really trumps those rights deprivations that we're talking about here.

00:05:09.460 So am I reading into that correctly, that they're saying that protecting this idea of the health care system

00:05:14.760 matters more than really dealing with the individual cases that were put before the court?

00:05:19.400 Yeah, absolutely. And I was particularly shocked by the juxtaposition of the minimization of the harms

00:05:28.040 to the individual plaintiffs and individuals and the deference to government public health objectives.

00:05:36.180 And I would note that the government did not present any compelling evidence that allowing a private safety

00:05:44.200 safety release valve would have any deleterious effects on the public health care system.

00:05:49.940 These private clinics, in fact, have been operating in British Columbia for the last 20 years

00:05:54.700 and have only been prevented by government fines and enforcement orders in the last few years.

00:05:59.560 So, in fact, in B.C. itself, there's no evidence that there's been any effect, any deleterious effect.

00:06:05.980 If anything, logic would suggest that if you have fewer people, if you have certain people that are

00:06:11.920 opting out of the public system, that would almost certainly free up time.

00:06:15.640 So I agree that there seems to be an ideological, unquestioning deference to government objectives.

00:06:23.440 And just to go back to sort of Law School 101 or Charter 101, the Charter is designed to give

00:06:30.420 individuals rights against the government.

00:06:32.480 So to see it turned around and used as a sort of complex, multilayered apparatus to give government

00:06:39.940 escape valves to defend arbitrary actions is simply unacceptable.

00:06:45.420 And that's why we're looking forward to appealing this decision on an expedited basis.

00:06:49.800 To go back to that word arbitrary, so, you know, basically what the court is saying here is that

00:06:54.660 you could deprive rights, assuming it's not arbitrary, excessively broad, or grossly disproportionate,

00:07:00.420 I think are the three parts of that test here.

00:07:03.020 How clearly defined is arbitrary in the jurisprudence?

00:07:07.400 It's extremely subjective.

00:07:08.780 And even our Supreme Court of Canada, which is not known for its clarity, specifically in

00:07:13.400 its last Section 7 decision acknowledged how much ambiguity there was around it and how

00:07:20.240 subjective it could be.

00:07:21.840 However, here we think it's very clear that where there is a luminous evidence of harm and

00:07:29.800 regular harm and systemic harm that we know is happening year over year and only theoretical

00:07:35.820 and in fact, not borne out by real life experience, either in the very jurisdiction, BC, or in every

00:07:42.280 country in the world, besides Canada, that allows private surgeries, that it's shocking that the judge

00:07:49.980 found the subterfuge to hide in.

00:07:52.420 So it's quite poorly defined.

00:07:54.920 But I mentioned the three major Section 7 cases, the Bedford, Carter and Insight, and all of those would

00:08:03.020 lead to a different result than the one we saw in this case.

00:08:05.440 So we feel quite strongly about our appeal.

00:08:08.760 So this is going to the Supreme Court, and I think it's probably a pretty good bet the Supreme

00:08:14.000 Court picks it up, given there's this case and also the Chayuli case in Quebec in 2005,

00:08:19.440 which I had to ask about here, because it seems like there was quite a lot of twisting to try to

00:08:25.740 say that the Chayuli case didn't apply.

00:08:28.440 And that was obviously a case that I think on very similar circumstances found that these sorts

00:08:34.620 of prohibitions in Quebec specifically were not valid.

00:08:37.900 And that was not something that expanded nationally.

00:08:40.300 And I know that Dr. Day and the Canby Clinic had recognized that in their arguments.

00:08:45.500 But it did seem like there was really, I think, an excessive interpretation of that in this

00:08:51.420 decision.

00:08:52.000 That, oh no, no, that doesn't apply.

00:08:53.260 Totally different circumstances.

00:08:54.320 And they were even saying that the state of health care in Quebec in 2005 is different

00:08:59.400 than British Columbia health care of 2020.

00:09:02.000 So you can't necessarily take the ruling in that case.

00:09:06.060 But I don't necessarily buy into that.

00:09:08.680 No, absolutely not.

00:09:10.660 And, you know, I think whenever you read or as a lawyer, I know whenever I start trying

00:09:17.300 to spin reasoning that, you know, a five-year-old wouldn't understand at all, there's a problem

00:09:21.560 with the reasoning.

00:09:22.320 Here's the nub of Chayuli. 1.00

00:09:23.980 Access to a waiting list is not access to health care.

00:09:27.200 When the government takes actions to prevent people from taking their health into their own

00:09:31.180 hand, it is unconstitutional.

00:09:33.360 That is, you know, the main takeaway from Chayuli and any attempt to, you know, shrink away from 0.99

00:09:40.200 that.

00:09:40.520 Although I also would mention, and this is heartening to us, that Chayuli also lost at

00:09:44.520 the trial court as well as the Quebec Court of Appeal.

00:09:47.360 That also was a case that, you know, people were skeptical of and the Supreme Court of Canada

00:09:51.860 clarified it.

00:09:53.440 But I agree.

00:09:54.360 I didn't think any of the attempts to distinguish Chayuli were compelling in the least.

00:09:58.860 So what would you say are the big errors or aspects that you think were at their core

00:10:05.120 wrong here?

00:10:06.440 I mean, do you think it all comes down to the meaning of arbitrary or were there other

00:10:09.420 key aspects of this decision that you think are really the strongest points of argument

00:10:13.660 going into a Supreme Court appeal?

00:10:16.480 Well, I think, first of all, there's a sort of gross misapprehension of the evidence.

00:10:21.940 On the one hand, minimizing the evidence of the suffering occasion to people who face excessive

00:10:28.140 waiting times and don't have any other option.

00:10:31.720 Yeah, and just to interrupt there for a moment, there was no dispute whatsoever of the facts

00:10:35.960 that these people have suffered directly as a result of the public system, correct?

00:10:40.760 Correct.

00:10:41.440 Correct.

00:10:41.800 There's just a question of if that suffering occasioned by the provisions of the BC Medicare

00:10:47.760 Protection Act was arbitrary.

00:10:50.340 So I think certainly the application, there's a question about the Section 7 life, liberty,

00:10:55.800 and security of the person and the application of the overbreadth and arbitrary test.

00:11:00.480 And I think also there was a gross misapprehension or a mischaracterization of the evidence that

00:11:06.980 the government intimated that allowing access to private surgeries would occasion harm and that

00:11:14.040 there was a clear connection between these provisions that were put into question and the

00:11:20.100 protection of the public health care system that, again, that connection was not made

00:11:24.940 out by the evidence.

00:11:26.100 And of course, I would note our final appeal strategy is very much not settled, but on sort

00:11:32.400 of first take.

00:11:33.380 Those are the things that stand out most to me as most egregious.

00:11:36.760 I know that when I look at, and I don't want to pull you out of the legal argument here, but I hope

00:11:41.640 you'll bear with me for a moment, looking at just some of the reaction on Twitter, a lot of the people

00:11:46.120 are celebrating this ruling just because, to go back to that sort of philosophical underpinning of

00:11:51.960 protecting the universal health care system, there seems to be this fear that if this case were to have

00:11:59.260 gone a different direction, that it would have just been the dismantling of universal health care in

00:12:03.640 Canada. And I don't really see how that's the case, because there was nothing in this that was

00:12:08.700 trying to take away from the universal system or the public system. If anything, it was just trying

00:12:12.920 to add to it and say, listen, when there are people that want to go to a private alternative,

00:12:16.940 they should have the right to do that. And this isn't, you know, big pharma that's suffering here.

00:12:21.680 It's individual patients that have fallen between the cracks of this supposedly universal system.

00:12:26.920 Yeah, I mean, there's so much to say about this. It's sort of a dogma among certain people,

00:12:32.520 but there's so many myths. And I think one of the main myths is that people fear that if we allow a

00:12:37.580 private option, it's going to lead to the Americanization of Canadian health care,

00:12:41.920 when America and Canada are both outliers. America is the only OECD country that does not

00:12:47.760 provide public care to its citizens. And Canada is the only country that does not provide a private

00:12:53.140 option. Look more at our OECD allies like France and the UK for a more realistic idea of what it would

00:13:00.080 look like, which is about 10% in the private system. And there's also, you know, fear mongering about

00:13:08.640 physicians being lured into the private system. And I understand why, because I didn't quite

00:13:14.240 understand this until I got involved in this case. But in fact, physicians are rationed operating room and

00:13:21.640 scheduling according to the government budget. So some of them don't have enough operating time to

00:13:27.220 make a living and in some cases not even to fulfill their professional requirements. So it's not a

00:13:33.780 question of parceling out or of luring public physicians into the private system. It's rather

00:13:41.800 an option. It's rather an option of responding to the needs of the citizens. Yeah. And that point you

00:13:48.800 just raised there was part of why this particular surgical center was founded in the first place,

00:13:53.600 because you had all of these surgeons that had time on their hands and no operating rooms in which

00:13:58.500 they could work with that time. And that problem has not really gone away. I think certainly there

00:14:04.040 have been changes in the last, I think, 24 years since the clinic opened. But a lot of those core

00:14:08.680 problems are still there. That's right. That's right. And actually, the biggest user of candy surgery

00:14:14.340 centers is WorkSafe BC, which is the workers union. So there's also arguably, we didn't really talk

00:14:21.600 about the equality argument, section 15. But there's arguably, when you have a huge part of

00:14:26.160 the population being allowed to access this care because they're part of a workers union, but people

00:14:31.820 who don't have the benefit of extended employer insurance not being able to access it, there's a

00:14:37.040 question of equality as well. Well, since you did bring it up, let's go into what that argument was.

00:14:42.140 Well, the argument was simply that we know that I think about two thirds of Canadians are covered by

00:14:49.320 extended health care insurance. People are covered by BC's auto insurance policy as well as WorkSafe

00:14:55.940 policy. So there's, there's, you know, a substantial chunk of the population that has access to private

00:15:02.980 care one way or the other. And people, unfortunately, who need it or being deprived of it are being

00:15:10.320 discriminated against arbitrarily.

00:15:12.180 So let's talk about the forecast here, because this is going to go to the Supreme Court. I don't

00:15:19.140 know how much other, you know, how many other arguments there are beyond the ones that were put

00:15:24.760 in, because this is a pretty extensive ruling. But do you think that there will be something gleaned

00:15:30.120 from the Chayuli case at the Supreme Court level? Or do you think that is going to continue to be

00:15:35.220 dismissed and discounted as it was in this decision?

00:15:37.480 I think the Supreme Court of Canada's Section 7 jurisprudence, and of course, there's Chayuli, 1.00

00:15:44.980 but it leads directly into its sort of landmark trio on Section 7 that I've mentioned a few times.

00:15:52.280 I think it's a very robust line of jurisprudence. And as the Supreme Court of Canada is bound by

00:15:58.440 horizontal stare decisis, bound by its own decisions, it will see that there is a clear legal error here.

00:16:06.300 And since it's a legal error, they are subjected to a correctness review, meaning it's owed less

00:16:13.320 debt rent.

00:16:14.500 So if they find that their own previous decision of 2005 was misinterpreted or misapplied,

00:16:20.760 they can really stand up for their own precedent then?

00:16:24.100 That's correct. Yeah. Otherwise, they would have to overrule not just one case,

00:16:28.740 but four cases that have become sort of landmark to the court.

00:16:32.300 Well, I think if anything, I've learned to never be too optimistic about these things. And I know

00:16:37.560 certainly the Camo case of the beer purchase across provincial borders that your organization

00:16:43.320 fought was one as well, where optimism ended up being misplaced. But it does sound like there's a

00:16:47.940 strong basis here. So again, not the end of the world, although it is certainly disappointing when

00:16:52.560 you want to stand up for the right of patience and of all Canadians. So I appreciate you taking some

00:16:57.240 time to shine the light on this. Joanna Barron, Executive Director of the Canadian Constitution

00:17:01.960 Foundation. Thank you.

00:17:03.780 Thanks, Andrew.

00:17:05.520 You know, it's hard to talk about Supreme Court decisions or BC Supreme Court decisions without

00:17:10.180 feeling like you're getting a little bit too bogged down in the details. But I always get

00:17:14.260 very annoyed when the media will really misrepresent what a case was about and misrepresent,

00:17:20.240 by extension, what a decision was about. So that's why I wanted to make that segment with an

00:17:25.080 interview of someone who's actually been involved in this, someone who's actually a lawyer. I just

00:17:29.380 sometimes play one when I'm covering cases, but I'm not actually a lawyer by any stretch.

00:17:33.700 So I'm glad Joanna was able to come on. And you know, it's so difficult because in so many cases,

00:17:38.460 this is where my absolutist libertarian streak comes in. The question is, should I as an individual

00:17:44.000 have the right to do whatever the heck I want when it comes to my health care? And that shouldn't

00:17:48.440 take 800 pages to explain at all. It certainly shouldn't take 800 pages to explain. No.

00:17:54.660 And I almost feel like the longer the decision, the more proof it is that they're desperately

00:18:00.020 trying to justify something that fundamentally does not make sense. And that's what Joanna said

00:18:05.400 that I thought was very valid about how the second you start hearing things that a five-year-old

00:18:09.860 couldn't understand, you've tended to go in the wrong direction here. Ultimately speaking,

00:18:14.380 access to a waiting list is not access to health care. And if the government is to provide something

00:18:20.480 and provide a monopoly on it, they have a moral and a legal imperative to provide it well. So

00:18:26.800 if the government says we are the monopoly on health care, we are the only ones that you can

00:18:31.080 get health care from, you better damn well provide the health care, which for so many people on waiting

00:18:36.320 lists, they simply are not doing. Thanks for listening to The Andrew Lawton Show. Support the

00:18:41.620 program by donating to True North at www.tnc.news.

Juno News - September 12, 2020

BC Supreme Court sides with activists over patients

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