Health Care Special Series

Cambie Surgery Case: Letting You Die Does Not Violate the Charter

Christine Van Geyn
October 16, 2022
Canadians have grown acutely aware that their health care system is failing. Provincial governments, unfortunately, perpetually balk at serious reforms. Thankfully, a few frustrated patients and private health care providers are trying to clear a path via the courts. Christine Van Geyn explores the latest developments in the Cambie Surgery Centre’s challenge of B.C.’s health care law. The province’s Court of Appeal recently ruled that while the NDP government’s restrictions are shortening patients’ lives and even getting them killed, this is consistent with Canada’s Charter of Rights and Freedoms. The litigants are now preparing to challenge this grotesque reasoning in the Supreme Court of Canada, Van Geyn explains in Part 1 of a special series on health care. In Part 2, Lynne Cohen seeks to unravel why Canada’s government-directed system is doing so badly.
Health Care Special Series

Cambie Surgery Case: Letting You Die Does Not Violate the Charter

Christine Van Geyn
October 16, 2022
Canadians have grown acutely aware that their health care system is failing. Provincial governments, unfortunately, perpetually balk at serious reforms. Thankfully, a few frustrated patients and private health care providers are trying to clear a path via the courts. Christine Van Geyn explores the latest developments in the Cambie Surgery Centre’s challenge of B.C.’s health care law. The province’s Court of Appeal recently ruled that while the NDP government’s restrictions are shortening patients’ lives and even getting them killed, this is consistent with Canada’s Charter of Rights and Freedoms. The litigants are now preparing to challenge this grotesque reasoning in the Supreme Court of Canada, Van Geyn explains in Part 1 of a special series on health care. In Part 2, Lynne Cohen seeks to unravel why Canada’s government-directed system is doing so badly.
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Every nation engages in its own kind of mythmaking, the creation of common shared beliefs based on seminal events, achievements or narratives about the country and its citizens. In Canada one of our foremost national myths is that we have free universal health care.

This is boasted about by politicians, opinion leaders and even celebrities such as Jim Carrey, who famously told acerbic U.S. talk-show host Bill Maher several years ago that Canadians “can be nice because they have health care.” This alleged advantage is used to differentiate ourselves from the United States. More recently, American stand-up comic Jim Gaffigan joked that Canadians tell themselves they can eat indulgent food like poutine because we have “free health care,” eliciting cheers and applause from the crowd. British Columbia’s Minister of Health, Adrian Dix, has gone so far as to call the government monopoly health care system “a cornerstone of our Canadian identity.”

This is one national myth that, sadly, is proving to have ever-less basis in fact. Canadians pay for government health care with our tax dollars. By some estimates that cost ranges between $726 and $41,916 per family annually. We also pay for “free” health care and its associated defects and failures with our time. Canada’s lengthy waiting times for specialists, surgeries, diagnostics and even basic family medicine have become notorious. The pandemic worsened the situation. In 2021, waiting times for surgical and other treatments increased for the third straight year, according to a report by the Fraser Institute. Orthopedic surgery waiting was worst, with a national average of 30.2 weeks in 2021. Ontario has a post-pandemic backlog of 1 million surgeries and almost 22 million health services.

In the eyes of U.S. talk-show host Bill Maher (top left) and British Columbia’s Minister of Health Adrian Dix (bottom left), Canada’s “free” and “excellent” health care system is a national treasure. But 30-week-average waiting times suggest the country’s favourite myth is more a fairy tale. (Sources: (top left photo) Angela George, licensed under CC BY 3.0; (bottom left photo) B.C. NDP, licensed under CC BY 2.0; (graph) The Fraser Institute’s national waiting list survey, 2021)

Stories of suffering on long waiting lists are a regular feature of Canada’s media landscape. In the last month CTV aired a story of a woman in B.C. waiting months for a cancer biopsy, and Global a piece about Alberta patients forced to wait in pain on the dirty floor of an Edmonton-area emergency room. The CBC ran an account of a teen-aged girl who spent 29 hours in agony before receiving appendicitis surgery, plus one about a woman who was left paralyzed after waiting over an hour for an ambulance after suffering a stroke. These are just a sample of the regular and consistent coverage of waiting times and a failing government system.

And while the health care system and its government overseers apparently regard the time of individual Canadians as essentially worthless, time has real costs. These include the individual patient’s lost economic productivity, their missed opportunities to spend their own time as they see fit and, most of all, the reduced quality of life and actual shortening of life caused by waiting for medical treatment. Many patients forced onto government waiting lists suffer severe and disabling pain that only ends when they receive necessary but delayed medical treatment. Others suffer from conditions which render them functionally disabled, limiting their ability to earn a living, participate in family life and social activities, and otherwise lead normal lives while they wait. More than mere inconveniences, such functional disabilities can include loss of bladder or bowel control, difficulty walking, standing and sleeping, and difficulty with basic self-care including showering, dressing and eating.

Patients with time-sensitive and life-threatening conditions also face increased risk of death. And such patients do die needlessly. Based on data compiled from freedom of information requests, the charitable think-tank Second Street estimates that over 10,000 patients died while waiting on a government list for a surgery, procedure, diagnostic or specialist appointment between April 2019 and December 2020.

Such perpetual delays in health care and other services like passports prompted new Conservative Party of Canada leader Pierre Poilievre to dub Canada “the waiting nation.” To many Canadians, this feels truer than the myth of free and excellent national health care, especially if they have recently visited an Emergency Room – that is, if they can find one that’s open. Multiple emergency rooms across the country have actually shut down over the past year, ostensibly due to staff shortages – sometimes all night and for entire weekends. Hospital emergency rooms provide a truly critical function; they need to be open and functional 24-7 without interruption.

Myth collides with reality in the “Waiting Nation”: The shockingly poor performance in government operations from passport offices to airports to hospital emergency rooms prompted new Conservative Party of Canada leader Pierre Poilievre to coin that pithy if painfully apt description. (Sources of photos: (top left) Alex Lupul/CBC; (bottom left) Global News; (right) YouTube/Pierre Poilievre)

What becomes of those who cannot wait? In many ways, they are trapped. Canada’s government health care monopoly is unique among developed countries. It is the only system that (through a combination of federal and provincial laws) prohibits patients from seeking health care outside the government medical system even when it fails to treat them. No other internationally respected democratic country has comparable restrictions – not even social-democratic countries like Sweden that are typically thought of as “to the left” of Canada. Citizens of all these countries are free to use their own resources to obtain the health care they need from private providers.

How, then, can Canada’s prohibition be demonstrably justified in a free and democratic society? This is the question a group of patients and surgical clinics are asking the Supreme Court of Canada to answer. On September 29 they filed for leave to appeal their case, Cambie v British Columbia, to the country’s highest court.

If our elected governments won’t confront the crisis of waiting times, a few brave patients and private health care providers will. Litigants in Cambie v British Columbia (pictured at right is Cambie Surgery Centre Founder and CEO Brian Day) are seeking leave to bring their challenge of B.C.’s government health care monopoly before the Supreme Court of Canada. (Source of right photo: The Canadian Press/Chuck Stoody)

Cambie v British Columbia directly challenges one provincial health care monopoly law, B.C.’s Medicare Protection Act. Substantively, however, the case represents a historic challenge to the entire country’s monopoly approach – a system that was disastrously overwhelmed during the Covid-19 pandemic, in turn fuelling rationalizations for disastrous pandemic-related shutdowns. Of course, this situation was not unique to the pandemic. Because of every province’s practice of rationing health care services, our hospitals are routinely said to be “at capacity” or even “over capacity” and the system regularly teeters on the edge of being overwhelmed.

The evidence at trial in the Cambie case (see also this C2C article) demonstrated that B.C.’s public health care system chronically fails to provide patients with necessary medical care within the maximum medically acceptable waiting time. The B.C. Court of Appeal later acknowledged that as of March 31, 2018 more than 30,000 British Columbians were waiting for necessary medical care beyond the maximum medically acceptable time (see paragraph 189). (Some would argue that these “medically acceptable” waits are already far too long; patients with access to high-quality U.S. or European health care often endure little or no delay at all.)

Intentional failure? The nearly 34,000 B.C. residents who were having to wait longer than the medically “acceptable” period to receive necessary health services (even before Covid-19 struck) are the predictable result of the province’s deliberate rationing of health care – which forbids private alternatives.

The scale and scope of the public system’s failure to provide treatment within medically acceptable timeframes is vividly illustrated in the accompanying graphic, also cited by B.C.’s Court of Appeal. Even more outrageous is that this failure is largely deliberate – because government rationing of health care services is baked into the system (as the linked article above discusses in more detail). Among many other policies that resulted in chronic rationing was B.C.’s decision three decades ago to choke off the supply of new doctors, as this recent C2C article describes. Further, there is little doubt the current NDP government’s primary objective is not to improve the public system but simply to crush private health care delivery. As the same article discusses, only a court injunction blocked the government from fining B.C.’s private clinics out of existence; once the injunction expired, the clinics had to stop providing fee-based services.

The patients bringing the Cambie legal challenge have all suffered the consequences of lengthy medical waiting times. The clinics that joined the challenge all want to treat these patients. But all are stymied by two provisions of the aforementioned Medicare Protection Act. Accordingly, the challenge is going after those two provisions.

Although it found that B.C.’s Medicare Protection Act infringes upon the Charter‘s right to life, liberty and security of the person, B.C.’s Court of Appeal in July nonetheless ruled that making thousands of people suffer (and possibly even die) while waiting to receive necessary medical services is “in accordance with the principles of fundamental justice.” (Source of photos: Shutterstock)

The first provision prohibits surgeons from working in both the public and private health care systems, and the second forbids private insurance to cover government-insured, medically necessary services. Together, these prohibitions effectively preclude access to private treatment in B.C. for most residents. (The Canada Health Act, meanwhile, prohibits user fees in the public system.)

The lower court agreed that the two challenged provisions are designed to and do effectively prevent private delivery of government-insured health care services in B.C. (see paragraphs 2,028 and 2,043). The trial judge accepted that the government’s own data demonstrated that tens of thousands of patients were waiting beyond the maximum medically acceptable time for necessary medical care. He held, however, that this did not violate the right to life and liberty enumerated in section 7 of the Canadian Charter of Rights and Freedoms, and that although the B.C. law interfered with the Charter right to security of the person, this was in accordance with the principles of fundamental justice.

The B.C. Court of Appeal disagreed with the trial court, finding that the B.C. law interferes with patients’ right to life. Co-authored by Chief Justice Bauman and Mr. Justice Harris, the majority’s decision held that the trial judge had understated the harms suffered by patients forced onto government health care waiting lists and had also minimized the scale and impact of the Charter infringements on thousands of patients who were forced to wait beyond benchmarks for required care.

One might think that such devastating findings would lead the judges to strike down this harmful law. But in July the court dismissed the appeal and ruled the province’s restrictions on private health care legal. This is because section 7’s guarantees to life, liberty and security of the person can be overridden when their deprivation is “in accordance with the principles of fundamental justice.”

In previous landmark cases, courts have determined that this means laws cannot be arbitrary, vague, overbroad or grossly disproportionate. The B.C. Court of Appeal’s majority found that while the Medicare Protection Act may hurt and even kill patients, this is done with the noble purpose of preserving the public health care system, i.e., is for the “greater good.” This, it found, meets the test of being in accordance with the principles of fundamental justice. There were no dissenting opinions.

The Cambie appeal decision did include a separate concurring judgement from Madam Justice Fenlon based on different reasons that have been rarely exercised in Canada’s courts. Justice Fenlon agreed with the majority that the B.C. law violated the right to life, liberty and security of patients. Unlike the majority, she held that the violations were not consistent with the principles of fundamental justice. Instead, she held that while the patients’ right to life, liberty and security were violated, these violations were justified limitations under section 1 of the Charter. This is the “balancing” clause which asks whether violations can be justified in a free and democratic society. This is only the second time a court has concluded that a section 7 infringement can be justified under section 1. The finding is, therefore, a landmark one and all the more reason for the Supreme Court of Canada to hear the appeal.

The B.C. government attempted to justify its Charter violations by emphasizing its role in health care management and spending while neglecting the consequences of government decisions – including medically unacceptable waiting times. So far, the courts have agreed, but the litigants will tell the Supreme Court of Canada that if the rights violations resulting from the consequences of a law (and not just from the law itself) are “arbitrary, vague, overbroad or grossly disproportionate,” the law should be struck down. (Source of top photo: zoomerradio.ca)

If the Cambie litigants are granted leave to appeal, the Supreme Court will be asked to grapple with the questions raised by both the majority and the concurrence. The Supreme Court must determine whether section 1 or the principles of fundamental justice can be invoked by a government to justify infringing the rights to life and security of the person of tens of thousands of B.C. patients. This infringement arises out of the B.C. government’s deliberate funding and management of the public health care system in a way that requires many patients to wait beyond a medically acceptable time for care. (If the situation is equally dire in the other provinces as in B.C., then by implication potentially another 200,000 such patients are similarly affected across Canada.)

Put at its simplest, the central issue in the appeal will be whether it is constitutional for the B.C. government to prevent patients from accessing necessary alternative health care when the public health care system does not provide care within medically acceptable times. More bluntly, whether it is acceptable in Canada for people to die waiting for government health care when private services could easily be provided that would keep them alive and, in many cases, healthy and living life to the full.

The litigants and their counsel believe their case is strong. First, consider the problems with the majority’s conclusion that although the Medicare Protection Act may result in patients dying, their death is consistent with the principles of fundamental justice. To an ordinary person, even uttering such words must sound obscene. Yet this was the finding by the B.C. Court of Appeal’s majority. The litigants consider this analysis to be inconsistent with the rights guaranteed in the Charter. Fundamental justice must be assessed in the context of the system’s failure to deliver timely care. The public health insurance scheme does not address or even contemplate unacceptable delays in accessing necessary health care.

The B.C. government attempted to justify the section 7 rights violations by relying on facts that are not immutable or external, but are things over which it has control and which themselves give rise to the failure. These include the government’s choices in staffing, funding and managing public health care delivery, while deliberately tolerating medically unacceptable delays. So while B.C.’s law itself might not appear to the court on its face to be arbitrary, vague, overbroad or grossly disproportionate, the litigants are of the view that its effects certainly are. The Cambie case thereby demonstrates the need for the courts to broaden the understanding of arbitrariness and gross disproportionality from strictly the language of a particular law to the law’s effects along with the related conditions created and controlled by the government.

Another important issue is that both the trial and appeal courts also took into account institutional and political considerations irrelevant to a constitutional analysis. Justice Fenlon, for example, opined that B.C.’s government would be strongly incentivized to reduce waiting times to avoid increases in demand for private care, and that the pressure from voters’ dissatisfaction and the sheer number of those waiting for care would lead to change (paragraph 410 of the ruling, linked above). But infringements of constitutional rights cannot be justified because one or more judges believe that public pressure will effect institutional change (which won’t help the current litigants but might prevent future violations of other people’s rights). Courts are supposed to rise above political debate, and both B.C. courts failed in Cambie.

This appeal is also important because it is closely similar to but inconsistent with the Supreme Court of Canada’s 2005 Chaoulli v Quebec decision. Chaoulli involved a challenge to Quebec law equivalent to B.C.’s prohibition on private insurance. The case was brought by Jacques Chaoulli, a doctor who provided home appointments to patients, and George Zeliotis, a man in his 70s who became a patient advocate for reducing waiting times after suffering numerous health problems. The duo challenged provisions in the Quebec Health Insurance Act and the Hospital Insurance Act that prohibited private medical insurance.

In that case, then-Chief Justice Beverley McLachlin tartly observed that “access to a waiting list is not access to health care.” The Supreme Court held that the law violated Quebecers’ right to life and security of the person and struck it down. The application of Chaoulli has been limited to Quebec, however. This is because only three of the seven Supreme Court judges found that the law violated the Canadian Charter. The fourth judge who concurred and thereby formed the majority ruled on the Quebec Charter of Human Rights and Freedoms. As a result, the Chaoulli decision does not apply outside Quebec.

The B.C. Court of Appeal’s reasoning in Cambie is on its face difficult to reconcile with Chaoulli. Even if the Choulli majority was decided under the Quebec Charter, the Quebec Charter has a similar guarantee of “life, liberty, and to personal security.” Moreover, the concurring reasoning of the other three justices who applied the Canadian Charter is persuasive and ought to have applied in Cambie.

 
One brave doctor and one plucky patient is all it took: In Chaoulli v Quebec the Supreme Court of Canada in 2005 overturned Quebec’s prohibition on private medical insurance, but the case hinged on Quebec’s own charter, not Canada’s, limiting the legal consequences to Quebec. (Shown at right is physician and co-plaintiff Jacques Chaoulli.) By contrast, the Cambie case could undermine government monopolies in every province.

Despite this, the B.C. Court of Appeal’s Cambie decision fails to recognize the manifest unfairness of justifying a prohibition on private care by giving primacy to the principle of equitable access to services provided in the public system over the principle of providing high-quality and timely health care. Cambie absolves governments from the constitutional responsibility established by Chaoulli to provide patients with timely access to necessary medical care in order to preserve the government monopoly over the delivery of necessary medical care.

The failure of provinces across Canada to provide timely necessary medical services of the sort which gave rise to the Supreme Court’s judgment in Chaoulli has not abated and indeed was exacerbated by the crisis caused by governments’ response to the Covid-19 pandemic.

Unlike Chaoulli, though, the ramifications of a Supreme Court ruling on Cambie would not be limited to one province. It would have the potential to affect all Canadian patients for good or ill, and the governments and government-created bodies which are responsible for the formulation of health care policy and the delivery of publicly funded health-care services. All provinces in Canada provide publicly funded medical care to patients through a statutory insurance scheme, and five provinces have enacted measures similar to B.C.’s to suppress the private delivery and funding of necessary medical services.


Confronting practical realities: A poll commissioned earlier this year by the Canadian Constitution Foundation – and published for the first time here in C2C Journal – found that a strong majority of Canadians in all regions believe that government health care monopolies should not stand in the way of timely health care.

Cambie is considered controversial by some. This is because it strikes at that long-held national myth about Canadian health care being free and universal. Cambie would not, however, prevent the government from continuing to fund the health-care system. Or indeed, from funding or managing it better than it currently does. The litigating patients and providers are simply asserting that if the government system fails them, they have a constitutional right to seek the medical care they need (including, in many cases, life-saving medical care) elsewhere.

This belief is not controversial. The Canadian Constitution Foundation, a legal charity supporting the Cambie litigation, in 2022 commissioned a poll which found that 74.6 per cent of respondents (see details in accompanying graphic, published here for the first time) believe that patients who wait past the maximum medically accepted times for treatment in the government system should be allowed to use private insurance to access that medically necessary care. Perhaps, then, the claim by politicians and other prominent Canadians of unwavering public support for this government system is mythical as well.

Christine Van Geyn is litigation director at the Canadian Constitution Foundation.

Source of main image: Shutterstock.

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