Juno News - September 12, 2020BC Supreme Court sides with activists over patients
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Summary
British Columbia Supreme Court rules in favor of private health care provider Canby Surgery Centre and its patients in their case against the B.C. government. We talk to Joanna Barron, Executive Director of the Canadian Constitution Foundation, about the ruling and what it means for the future of the case.
Transcript
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Yesterday, the British Columbia Supreme Court ruled on the Canby Surgical Center's case.
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This is a case of a private surgical clinic led by Dr. Brian Day in Vancouver that has had 10 years of litigation going,
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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.
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And Dr. Day has basically argued that when you have massive wait lists, patients unable to access health care,
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and these surgical centers and surgeons that are able and willing to help them,
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it's a violation of those patients' right to the security of the person for the government to do things to say,
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no, no, no, you can't operate, you can't provide these treatments for money.
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Of course, the activists don't like it because they want to preserve and cling to this idea of a universal health care system,
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which, while noble, is not working for a lot of Canadians and for some of the patient plaintiffs that were in this case.
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But, of course, the ruling handed down came against Dr. Day and the clinic and the patients,
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and basically defended this idea that we must, at all costs, preserve and protect the universal health care system,
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even flying in the face of the facts of the case, which say that these patients' rights are being deprived.
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And we'll talk about that right now with Joanna Barron, who is the Executive Director of the Canadian Constitution Foundation.
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Joanna, thank you so much for coming on today. Really great to speak with you.
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Now, I know that this was not the decision that you had anticipated, or should I say hoped for,
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Just for context, the CCF wasn't an intervener in the main trial, correct?
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So we're supporting Dr. Day and the Canby Surgery Centre with assisting fundraising communications,
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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,
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And more specifically, the government's actions in B.C. represent a violation of the charter rights,
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So that's our interest in this case, is the constitutional rights and violations.
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And I think that's a great place to start off here.
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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.
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And before the decision was released, my thought was that really at stake was whether the rights of patients
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who are stuck on wait lists, who aren't able to access care in the public system,
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whether their rights are violated by all of the restrictions on private health care.
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And I was quite shocked, actually, reading through the decision to see that the court accepted that.
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The court actually accepted that their rights are violated, but ultimately said that wasn't enough to say that
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these bans should be found unconstitutional. Explain that for me.
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Yeah, so as you mentioned, the decision is 880 pages, so we're still digesting it.
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But the really nub of the important finding was that, as you mentioned,
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there were multiple findings of fact made that the patient plaintiffs, one of which is deceased,
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one of which is permanently paralyzed, one of which was a competitive soccer player.
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And because she didn't receive knee surgery in time, she was deprived of her college soccer scholarship.
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So, of course, the judge couldn't but find that there was there was a violation of their rights.
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However, he found that the violation effectuated was not arbitrary or overbroad.
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And I find that to be a very difficult needle to thread, especially in light of.
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And so the Charter right that we're speaking about here is Section 7,
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the right to life, liberty and security of the person.
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Previously, the Supreme Court of Canada has found that state actions such as preventing prostitutes
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from running body houses or hiring security, preventing terminally ill or debilitating ill people
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from seeking physician-assisted suicides, as well as preventing drug addicts from seeking safe injection sites.
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All of those government actions were found to be arbitrary and unjustified violations of Section 7.
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The fact that 30,000 British Columbians each year suffer on waiting lists that exceed the government's own targets
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do not meet that threshold, frankly, should shock the conscience of all Canadians.
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It really seemed like the court was defending this idea of the public health care system
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in spite of the facts of what that system's effect is on a lot of people.
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And I don't know if I'm reading, perhaps, an ideological component into this that isn't necessarily there.
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But especially when I was looking at one of the concluding remarks in it,
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it's that the court found that, quote, preserving and ensuring the sustainability of the universal public health care system, unquote,
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really trumps those rights deprivations that we're talking about here.
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So am I reading into that correctly, that they're saying that protecting this idea of the health care system
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matters more than really dealing with the individual cases that were put before the court?
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Yeah, absolutely. And I was particularly shocked by the juxtaposition of the minimization of the harms
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to the individual plaintiffs and individuals and the deference to government public health objectives.
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And I would note that the government did not present any compelling evidence that allowing a private safety
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safety release valve would have any deleterious effects on the public health care system.
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These private clinics, in fact, have been operating in British Columbia for the last 20 years
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and have only been prevented by government fines and enforcement orders in the last few years.
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So, in fact, in B.C. itself, there's no evidence that there's been any effect, any deleterious effect.
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If anything, logic would suggest that if you have fewer people, if you have certain people that are
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opting out of the public system, that would almost certainly free up time.
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So I agree that there seems to be an ideological, unquestioning deference to government objectives.
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And just to go back to sort of Law School 101 or Charter 101, the Charter is designed to give
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So to see it turned around and used as a sort of complex, multilayered apparatus to give government
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escape valves to defend arbitrary actions is simply unacceptable.
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And that's why we're looking forward to appealing this decision on an expedited basis.
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To go back to that word arbitrary, so, you know, basically what the court is saying here is that
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you could deprive rights, assuming it's not arbitrary, excessively broad, or grossly disproportionate,
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How clearly defined is arbitrary in the jurisprudence?
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And even our Supreme Court of Canada, which is not known for its clarity, specifically in
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its last Section 7 decision acknowledged how much ambiguity there was around it and how
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However, here we think it's very clear that where there is a luminous evidence of harm and
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regular harm and systemic harm that we know is happening year over year and only theoretical
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and in fact, not borne out by real life experience, either in the very jurisdiction, BC, or in every
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country in the world, besides Canada, that allows private surgeries, that it's shocking that the judge
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But I mentioned the three major Section 7 cases, the Bedford, Carter and Insight, and all of those would
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lead to a different result than the one we saw in this case.
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So this is going to the Supreme Court, and I think it's probably a pretty good bet the Supreme
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Court picks it up, given there's this case and also the Chayuli case in Quebec in 2005,
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which I had to ask about here, because it seems like there was quite a lot of twisting to try to
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And that was obviously a case that I think on very similar circumstances found that these sorts
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of prohibitions in Quebec specifically were not valid.
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And that was not something that expanded nationally.
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And I know that Dr. Day and the Canby Clinic had recognized that in their arguments.
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But it did seem like there was really, I think, an excessive interpretation of that in this
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And they were even saying that the state of health care in Quebec in 2005 is different
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So you can't necessarily take the ruling in that case.
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And, you know, I think whenever you read or as a lawyer, I know whenever I start trying
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to spin reasoning that, you know, a five-year-old wouldn't understand at all, there's a problem
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Access to a waiting list is not access to health care.
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When the government takes actions to prevent people from taking their health into their own
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That is, you know, the main takeaway from Chayuli and any attempt to, you know, shrink away from
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Although I also would mention, and this is heartening to us, that Chayuli also lost at
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the trial court as well as the Quebec Court of Appeal.
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That also was a case that, you know, people were skeptical of and the Supreme Court of Canada
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I didn't think any of the attempts to distinguish Chayuli were compelling in the least.
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So what would you say are the big errors or aspects that you think were at their core
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I mean, do you think it all comes down to the meaning of arbitrary or were there other
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key aspects of this decision that you think are really the strongest points of argument
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Well, I think, first of all, there's a sort of gross misapprehension of the evidence.
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On the one hand, minimizing the evidence of the suffering occasion to people who face excessive
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Yeah, and just to interrupt there for a moment, there was no dispute whatsoever of the facts
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that these people have suffered directly as a result of the public system, correct?
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There's just a question of if that suffering occasioned by the provisions of the BC Medicare
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So I think certainly the application, there's a question about the Section 7 life, liberty,
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and security of the person and the application of the overbreadth and arbitrary test.
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And I think also there was a gross misapprehension or a mischaracterization of the evidence that
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the government intimated that allowing access to private surgeries would occasion harm and that
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there was a clear connection between these provisions that were put into question and the
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protection of the public health care system that, again, that connection was not made
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And of course, I would note our final appeal strategy is very much not settled, but on sort
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Those are the things that stand out most to me as most egregious.
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I know that when I look at, and I don't want to pull you out of the legal argument here, but I hope
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you'll bear with me for a moment, looking at just some of the reaction on Twitter, a lot of the people
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are celebrating this ruling just because, to go back to that sort of philosophical underpinning of
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protecting the universal health care system, there seems to be this fear that if this case were to have
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gone a different direction, that it would have just been the dismantling of universal health care in
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Canada. And I don't really see how that's the case, because there was nothing in this that was
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trying to take away from the universal system or the public system. If anything, it was just trying
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to add to it and say, listen, when there are people that want to go to a private alternative,
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they should have the right to do that. And this isn't, you know, big pharma that's suffering here.
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It's individual patients that have fallen between the cracks of this supposedly universal system.
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Yeah, I mean, there's so much to say about this. It's sort of a dogma among certain people,
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but there's so many myths. And I think one of the main myths is that people fear that if we allow a
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private option, it's going to lead to the Americanization of Canadian health care,
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when America and Canada are both outliers. America is the only OECD country that does not
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provide public care to its citizens. And Canada is the only country that does not provide a private
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option. Look more at our OECD allies like France and the UK for a more realistic idea of what it would
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look like, which is about 10% in the private system. And there's also, you know, fear mongering about
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physicians being lured into the private system. And I understand why, because I didn't quite
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understand this until I got involved in this case. But in fact, physicians are rationed operating room and
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scheduling according to the government budget. So some of them don't have enough operating time to
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make a living and in some cases not even to fulfill their professional requirements. So it's not a
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question of parceling out or of luring public physicians into the private system. It's rather
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an option. It's rather an option of responding to the needs of the citizens. Yeah. And that point you
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just raised there was part of why this particular surgical center was founded in the first place,
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because you had all of these surgeons that had time on their hands and no operating rooms in which
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they could work with that time. And that problem has not really gone away. I think certainly there
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have been changes in the last, I think, 24 years since the clinic opened. But a lot of those core
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problems are still there. That's right. That's right. And actually, the biggest user of candy surgery
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centers is WorkSafe BC, which is the workers union. So there's also arguably, we didn't really talk
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about the equality argument, section 15. But there's arguably, when you have a huge part of
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the population being allowed to access this care because they're part of a workers union, but people
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who don't have the benefit of extended employer insurance not being able to access it, there's a
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question of equality as well. Well, since you did bring it up, let's go into what that argument was.
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Well, the argument was simply that we know that I think about two thirds of Canadians are covered by
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extended health care insurance. People are covered by BC's auto insurance policy as well as WorkSafe
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policy. So there's, there's, you know, a substantial chunk of the population that has access to private
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care one way or the other. And people, unfortunately, who need it or being deprived of it are being
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So let's talk about the forecast here, because this is going to go to the Supreme Court. I don't
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know how much other, you know, how many other arguments there are beyond the ones that were put
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in, because this is a pretty extensive ruling. But do you think that there will be something gleaned
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from the Chayuli case at the Supreme Court level? Or do you think that is going to continue to be
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dismissed and discounted as it was in this decision?
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I think the Supreme Court of Canada's Section 7 jurisprudence, and of course, there's Chayuli,
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but it leads directly into its sort of landmark trio on Section 7 that I've mentioned a few times.
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I think it's a very robust line of jurisprudence. And as the Supreme Court of Canada is bound by
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horizontal stare decisis, bound by its own decisions, it will see that there is a clear legal error here.
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And since it's a legal error, they are subjected to a correctness review, meaning it's owed less
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So if they find that their own previous decision of 2005 was misinterpreted or misapplied,
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they can really stand up for their own precedent then?
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That's correct. Yeah. Otherwise, they would have to overrule not just one case,
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but four cases that have become sort of landmark to the court.
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Well, I think if anything, I've learned to never be too optimistic about these things. And I know
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certainly the Camo case of the beer purchase across provincial borders that your organization
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fought was one as well, where optimism ended up being misplaced. But it does sound like there's a
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strong basis here. So again, not the end of the world, although it is certainly disappointing when
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you want to stand up for the right of patience and of all Canadians. So I appreciate you taking some
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time to shine the light on this. Joanna Barron, Executive Director of the Canadian Constitution
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You know, it's hard to talk about Supreme Court decisions or BC Supreme Court decisions without
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feeling like you're getting a little bit too bogged down in the details. But I always get
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very annoyed when the media will really misrepresent what a case was about and misrepresent,
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by extension, what a decision was about. So that's why I wanted to make that segment with an
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interview of someone who's actually been involved in this, someone who's actually a lawyer. I just
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sometimes play one when I'm covering cases, but I'm not actually a lawyer by any stretch.
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So I'm glad Joanna was able to come on. And you know, it's so difficult because in so many cases,
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this is where my absolutist libertarian streak comes in. The question is, should I as an individual
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have the right to do whatever the heck I want when it comes to my health care? And that shouldn't
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take 800 pages to explain at all. It certainly shouldn't take 800 pages to explain. No.
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And I almost feel like the longer the decision, the more proof it is that they're desperately
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trying to justify something that fundamentally does not make sense. And that's what Joanna said
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that I thought was very valid about how the second you start hearing things that a five-year-old
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couldn't understand, you've tended to go in the wrong direction here. Ultimately speaking,
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access to a waiting list is not access to health care. And if the government is to provide something
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and provide a monopoly on it, they have a moral and a legal imperative to provide it well. So
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if the government says we are the monopoly on health care, we are the only ones that you can
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get health care from, you better damn well provide the health care, which for so many people on waiting
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lists, they simply are not doing. Thanks for listening to The Andrew Lawton Show. Support the
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program by donating to True North at www.tnc.news.