Juno News - September 11, 2020Patient Choice, Netflix Creeps and Internet Censors
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Summary
A blow against healthcare choice in Canada, Hollywood's misguided priorities, and a crackdown on internet free speech. Coming up, The Andrew Lawton Show, Canada's Most Irreverent Talk Show, where True North founder Andrew Lee talks about it all.
Transcript
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This is The Andrew Lawton Show, brought to you by True North.
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Coming up, a blow against healthcare choice in Canada,
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and a crackdown on internet free speech is coming.
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Canada's Most Irreverent Talk Show here on True North.
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Going to have a busy show today with all that's happened this week,
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so I want to get right into the thick of things here.
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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
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that has had 10 years of litigation going, actually I think 11 now,
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against the BC government protesting the bans and restrictions that the BC government has
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on private healthcare providers like the Canby Clinic.
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And Dr. Day has basically argued that when you have massive wait lists,
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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
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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
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which, while noble, is not working for a lot of Canadians
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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
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the universal healthcare system, even flying in the face of the facts of the case,
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which say that these patients' rights are being deprived.
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And we'll talk about that right now with Joanna Barron,
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who is the Executive Director of the Canadian Constitution Foundation.
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Now, I know that this was not the decision that you had anticipated,
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or should I say hoped for, certainly not the one I had 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
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because we really believe that the outcome of this case,
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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 BC
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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,
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but I've read through a lot of the key points of the decision.
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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
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The court actually accepted that their rights are violated,
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but ultimately said that wasn't enough to say that
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Yeah, so as you mentioned, the decision is 880 pages,
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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,
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one of which is deceased, one of which is permanently paralyzed,
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And because she didn't receive knee surgery in time,
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she was deprived of her college soccer scholarship.
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So, of course, the judge couldn't but find that 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,
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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,
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such as preventing prostitutes from running bodyhouses or hiring security,
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preventing terminally ill or debilitating ill people from seeking physician-assisted suicides,
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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
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that exceed the government's own targets do not meet that threshold,
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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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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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that they're saying that protecting this idea of the health care system matters more
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than really dealing with the individual cases that were put before the court?
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And I was particularly shocked by the juxtaposition of the minimization of the harms to the individual
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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
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that allowing a private 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,
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if you have certain people that are opting out of the public system,
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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,
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the charter is designed to give individuals rights against the government.
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So to see it turned around and used as a sort of complex, multilayered apparatus
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to give government 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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So, you know, basically what the court is saying here is that you could deprive rights,
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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,
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acknowledged how much ambiguity there was around it and how subjective it could be.
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However, here we think it's very clear that where there is luminous evidence of harm
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and regular harm and systemic harm that we know is happening year over year
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and only theoretical and, in fact, not borne out by real-life experience,
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either in the very jurisdiction, B.C. or in every country in the world besides Canada
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that allows private surgeries, that it's shocking that the judge found the subterfuge to hide in.
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But I mentioned the three major Section 7 cases, the Bedford, Carter, and Insight,
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and all of those would 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
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the Supreme Court picks it up, given there's this case and also the Chaiouli 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
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to try to say that the Chaiouli case didn't apply.
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And that was obviously a case that, I think, on very similar circumstances,
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found that these sorts 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 decision.
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And they were even saying that the state of health care in Quebec in 2005
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is different than British Columbia health care of 2020.
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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,
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I know whenever I start trying to spin reasoning that, you know,
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a five-year-old wouldn't understand at all, there's a problem with the reasoning.
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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 hand,
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That is, you know, the main takeaway from Chaiouli and any attempt to, you know, shrink away from that.
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Although I also would mention, and this is heartening to us,
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that Chaiouli also lost at 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 clarified it.
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But I agree. I didn't think any of the attempts to distinguish Chaiouli 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 wrong here?
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I mean, do you think it all comes down to the meaning of arbitrary?
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Or were there other key aspects of this decision that you think are really the strongest points of argument going into a Supreme Court appeal?
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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 waiting times and don't have any other option.
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Yeah, and just to interrupt there for a moment,
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there was no dispute whatsoever of the facts 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 Protection Act was arbitrary.
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So I think certainly the application, there's a question about the Section 7 life, liberty 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 the government intimated that allowing access to private surgeries would occasion harm and that there was a clear connection between these provisions that were put into question and the protection of the public health care system.
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And that, again, that connection was not made out by the evidence.
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And of course, I would note our final appeal strategy is very much not settled, but on sort of first take.
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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 you'll bear with me for a moment.
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Looking at just some of the reaction on Twitter, a lot of the people are celebrating this ruling just because,
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to go back to that sort of philosophical underpinning of protecting the universal health care system,
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there seems to be this fear that if this case were to have gone a different direction,
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that it would have just been the dismantling of universal health care in Canada.
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And I don't really see how that's the case, because there was nothing in this that was trying to take away from the universal system or the public system.
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If anything, it was just trying to add to it and say, listen, when there are people that want to go to a private alternative,
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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.
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It's sort of a dogma among certain people, but there's so many myths.
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And I think one of the main myths is that people fear that if we allow a private option,
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it's going to lead to the Americanization of Canadian health care,
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America is the only OECD country that does not provide public care to its citizens,
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and Canada is the only country that does not provide a private option.
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So look more at our OECD allies like France and the UK for a more realistic idea of what it would look like,
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And there's also, you know, fear mongering about physicians being lured into the private system.
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And I understand why, because I didn't quite understand this until I got involved in this case.
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But in fact, physicians are rationed operating room and scheduling according to the government budget.
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So some of them don't have enough operating time to make a living and, in some cases,
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not even to fulfill their professional requirements.
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So it's not a question of parceling out or of luring public physicians into the private system.
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It's rather an option of responding to the needs of the citizens.
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Yeah, and that point you 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 they could work with that time.
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I think certainly there have been changes in the last, I think, 24 years since the clinic opened,
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but a lot of those core problems are still there.
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And actually, the biggest user of Canby Surgery Centers is WorkSafeBC, which is the workers' union.
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So there's also, arguably, we didn't really talk about the equality argument, Section 15,
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but there's arguably, when you have a huge part of the population being allowed to access this care
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because they're part of a workers' union, but people who don't have the benefit of extended employer insurance
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not being able to access it, there's a question of equality as well.
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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
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People are covered by BC's auto insurance policy as well as WorkSafe policy.
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So there's, you know, a substantial chunk of the population that has access to private care one way or the other.
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And people, unfortunately, who need it or are being deprived of it are being discriminated against arbitrarily.
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So let's talk about the forecast here because this is going to go to the Supreme Court.
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I don't know how much other, you know, how many other arguments there are beyond the ones that were put in
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But do you think that there will be something gleaned from the Chayuli case at the Supreme Court level?
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Or do you think that is going to continue to be 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.
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And as the Supreme Court of Canada is bound by horizontal stare decisis, bound by its own decisions,
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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 deferent.
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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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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.
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And I know certainly the Camo case of the beer purchase across provincial borders
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that your organization fought was one as well, where optimism ended up being misplaced.
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But it does sound like there's a strong basis here.
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So again, not the end of the world, although it is certainly disappointing
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when you want to stand up for the right of patients and of all Canadians.
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So I appreciate you taking some time to shine the light on this.
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Joanna Barron, Executive Director of the Canadian Constitution Foundation.
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You know, it's hard to talk about Supreme Court decisions or B.C. Supreme Court decisions
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without feeling like you're getting a little bit too bogged down in the details.
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But I always get very annoyed when the media will really misrepresent what a case was about
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and misrepresent, by extension, what a decision was about.
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So that's why I wanted to make that segment with an interview of someone who's actually been involved in this,
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I just sometimes play one when I'm covering cases, but I'm not actually a lawyer by any stretch.
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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.
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The question is, should I as an individual have the right to do whatever the heck I want
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And that shouldn't take 800 pages to explain at all.
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It certainly shouldn't take 800 pages to explain no.
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And I almost feel like the longer the decision,
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the more proof it is that they're desperately trying to justify something
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And that's what Joanna said that I thought was very valid
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about how the second you start hearing things that a five-year-old couldn't understand,
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you've tended to go in the wrong direction here.
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Ultimately speaking, access to a waiting list is not access to health care.
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And if the government is to provide something and provide a monopoly on it,
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they have a moral and a legal imperative to provide it well.
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So if the government says we are the monopoly on health care,
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we are the only ones that you can get health care from,
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When we return, more of The Andrew Lawton Show here on True North.
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A few weeks ago, there was a controversy that put Netflix
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You remember the poster, I'm almost certain it was very memorable.
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a young girl's children in provocative attire on some dance stage.
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And the description for the show that Netflix put out
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is that, you know, an 11-year-old becomes fascinated with twerking
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and then decides to explore her femininity or something to that effect.
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this idea that this was going to be about some child
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And if you look at the promos that have come out,
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And this is what the movie has as a key feature of it.
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People have been registering their discontent with Netflix.
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cancelling their subscriptions and doing all sorts of other things.
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Netflix so far has been unrepentant about this.
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a social commentary against the sexualisation of young children.
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But what's worse is that anyone who's criticising this
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is now being accused of essentially just stoking some conspiracy.
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that became the target of a right-wing campaign,
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hey, you know, maybe we don't want to promote children
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grabbing their crotches as they explore their inner femininity.
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I have not seen it and I have no interest in seeing it.
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So I'm not going to be commenting on it as though I have.
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I'm going to be commenting on the marketing campaign around it,
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which even people who like this movie seem to think Netflix botched.
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and this is the subject of The New Yorker piece,
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they say, oh, no, no, no, it's actually about resisting that.
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It's about a girl that resists the patriarchy and all of that.
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But resisting the patriarchy is done by provocative dancing.
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So I'm not sure how that actually helps the point
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that this movie is not normalizing the very thing
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And moreover, the fact that when Netflix had this,
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but the fact that Netflix had this and they say,
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hmm, how can we best market this to our audience?
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of the girls on the cover in their dance attire
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showing their midriffs and doing all that.
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And I'm not one of these pearl clutchers, okay?
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that thinks everything is supposed to be a moral panic.
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But I don't think having some basic morality and decency
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to growing all of the things we want to grow in society.
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You can say it's creepy and not be off base on that.
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And I remember a few years ago, I'll tell you a story,
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because I know when you're doing dance or gymnastics
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And I had said something about this later that day
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I was being creepy, that by saying you have an issue
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with it, it means that you're looking at something
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in a sexual way, and that makes you the problem.
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And I don't buy into that, because it does seem
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about the way that the girls in this movie
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that shows they want to exploit that sexualization.
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is that bisexualizing for the purposes of marketing,
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but even if you can say that Netflix has misrepresented
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the fact that the people around their marketing table
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think, okay, this is the greatest selling point of this.
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And that's where, irrespective of the intention
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I mean, look at Little Miss Sunshine, for example.
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It kind of mocked that, you know, child dance world.
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This is, won't someone please think of the children.
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to try to downplay all of the concerns and say,
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I saw someone likened this to Pizzagate, for example.
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which is, I think, a very important place for it to be.
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But if you come against it, you're now the problem.
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And this is just the level of gaslighting that's going on
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But what I do care about is that no one should be allowed
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to be told that you are not allowed to be frustrated
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or even offended by something that it seems like
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And that's where he gets to the other part of me.
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but Netflix just wanting to wade into this controversy.
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So to certain people, it can look all progressive and hip.
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And, you know, to other people, it doesn't really matter
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What was interesting is that the Netflix CEO was on CNN.
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And despite this interview at the middle of this scandal,
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So this was an interview with a Netflix co-CEO.
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But co-CEO Reed Hastings was on CNN Newsroom anchor,
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And they had questions that were basically just about
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and you can normalize the sexualization of children.
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the only way that the left would oppose cuties
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That's the only thing that would get people annoyed by this.
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but that are based on whether the film was inclusive or not.
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So no longer is it just the speeches that are woke
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And within each category, there are substandards.
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from an underrepresented racial or ethnic group,
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And look, I mean, the reality is a lot of movies
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because there's a market for this sort of content.
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which is supposed to be about the quality of the art,
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because they want to look all woke and justicy.
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I don't think is an invitee at the Oscars normally,
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I would love to see him at the Oscars right now,
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the year that they put this nonsense into effect.
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because the Oscars have been declining in relevance.
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This is probably going to be the final nail in the coffin
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these are the things that the entertainment sector
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more of The Andrew Lawton Show here on True North.