As we enter 2022, it’s still hard to see beyond the COVID-19 pandemic. The rise of the omicron variant and a new round of public health restrictions are a vivid reminder that the virus and its economic and social consequences are still with us.

Yet even when the once-in-a-century pandemic is finally over, it will still take some time to discern its lasting effects on various aspects of individual life and the broader society, including the persistence of remote work, the prospect of industrial reshoring, and the unknown consequences of more than two years of online education, economic and financial uncertainty, and state-mandated social distancing. Yale sociologist Nicholas Christakis describes these lagging outcomes as “aftershocks” in his book, Apollo’s Arrow: The Profound and Enduring Impact of Coronavirus on the Way We Live.

Although we don’t fully know the magnitude at this stage, one consequence that can we anticipate for certain in Canada is massive pandemic-induced backlogs for medical testing and surgeries. They are the result of necessary yet fraught decisions to suspend various tests and procedures at different times during the pandemic in order to free up capacity for the steady caseloads of COVID-19 patients. These pandemic-induced backlogs will ensure that the pandemic is with us for a long time even after its worst effects are over.

Take Ontario for instance. The Financial Accountability Office of Ontario estimated last spring that the province’s backlogs could reach nearly 420,000 for surgical procedures and 2.5 million for diagnostic tests. It’s projected to cost billions of dollars and take more than 3 years to fully eliminate. Some observers have described these pandemic-induced backlogs as the “crisis behind the crisis.”

But even these numbers don’t begin to tell the full story. There are two main problems with the FAO’s estimates. The first is it underestimates the magnitude of the problem. As the pandemic subsides and people return to normal health care consumption patterns, we’re bound to discover that the backlogs are actually much larger than projected. There’s currently an “invisible waitlist” that’s been concealed during this sustained period of delayed diagnoses, testing, and treatments. Consider, for instance, that the Quebec government has reported a 24 percent drop in requests to be placed on a surgical waitlist during the pandemic compared to a non-pandemic year.

The second problem with the FAO’s estimates for eliminating Ontario’s pandemic-induced backlog is it assumes that hospitals and front-line health staff will work beyond their current capacity for an extended period. Yet in light of the intensity of the past 22 months, it’s wishful thinking to expect greater productivity levels over a sustained period from an already burnt-out sector.

It’s far likelier therefore that the pandemic-induced backlogs are both bigger and slower to eliminate than is widely assumed. The consequences for the health and well-being of Canadians could be significant. Massive backlogs will invariably lead to ongoing delays in diagnoses and treatments and in turn protracted suffering and even deaths.

This is already happening of course. Different organizations have produced estimates of “excess deaths” which refers to the number of overall deaths that wouldn’t have occurred if the pandemic hadn’t happened. In a November 2021 study, for instance, the Canadian Medical Association estimated that there were more than 4,000 excess deaths between August and December 2020 alone. A more, up-to-date report from Statistics Canada has found that the pandemic had resulted in 5.2 percent more deaths, or nearly 19,500 in overall terms, as of August 2021.

Yet both studies also recognize the limits of their analysis due to the undercounting of the “invisible waitlists.” The CMA report, for instance, estimated that even after cancer screenings in Ontario were resumed after the early waves of the pandemic, they remained 20 to 35 percent below pre-pandemic levels as of last January. The full scale of excess mortality caused by the pandemic will therefore only become known over the long run and even then it may never be wholly knowable.

These problems with lengthy wait times are hardly new to Canada’s health care system. Even prior to the pandemic, the Canadian Institute for Health Information reported that provincial health care systems could not meet as much as 33 percent of patient needs according to governments’ own benchmarks for certain procedures such as joint replacements or cataract surgeries.

This is important to remember because even if governments could expeditiously eliminate the pandemic-induced backlogs, we’ll still have large and growing waitlists structural parts of provincial health care systems. An inexorable combination of aging demographics and unsustainable provincial finances will all but ensure it.

The underlying source of the problem here isn’t health care per se. It can instead be found in the realm of political ideas. It’s not just that we’ve collectively decided to prohibit most forms of private health care delivery in the misguided pursuit of egalitarian goals. It’s that we’ve seemingly extended the prohibition to policy and political debates about our current health care system and its failings.

The 2021 federal election campaign is a good (or bad) example. The major political parties essentially colluded to avoid discussing the structural problems facing Canadian health care. No political leader raised that Canada has the second-fewest hospital beds per capita among OECD countries. No one addressed that Canada’s pre-pandemic occupancy rate for hospital beds was 90 percent compared to less than two-thirds in the United States. No one spoke to the need for health care reform at all.

Instead, the Conservatives promised to throw more federal dollars at the problem, and the Liberals committed to further restrictions on the minimal amount of private delivery currently present in the system. There was, in other words, a multi-partisan consensus in favour of perpetuating the status quo even as the pandemic exposed the system’s fundamental failings.

Yet we know that the status quo amounts to accepting massive and ongoing waitlists which can result in significant human costs. As former Supreme Court Chief Justice Beverley McLachlin wrote in the 2005 Chaoulli decision: “The evidence in this case shows that delays in the public health care system are widespread, and that, in some serious cases, patients die as a result of waiting lists for public health care.”

The situation has only worsened in the subsequent decade and a half. Yet these waitlists are neither inadvertent nor unforeseen. They’re a logical and predictable consequence of the design and structure of Canada’s health care system. Federal and provincial policy choices have created system-wide scarcity that necessitates the kind of rationing that’s generally present in the system and even more marked during the pandemic. Rationing in the form of backlogs and waitlists is ultimately what holds the system together.

If the pandemic has demonstrated the need for serious reform, the main challenge will be overcoming the Medicare dogmatists who in spite of the mounting evidence still seem reluctant to cede the health care system’s structural shortcomings as if doing so would necessarily put at risk its egalitarian goals. This, of course, fails to recognize that various other jurisdictions are able to deliver on similar goals with greater affordability, efficiency, and equity. Canada isn’t the only country with universal health care after all. We just have the dubious distinction of being among the most expensive and having the longest wait times.

The good news is that one gets the sense that Canadians themselves are growing impatient with the status quo. They instinctively understand the axiom that “access to a waiting list is not access to health care.”

One of the consequences of COVID-19 therefore may be more room for sensible debate about how to address the pandemic-induced backlogs and better position provincial health care systems for the coming demographic-induced pressures, including a greater role for private health care delivery to augment public provision. If so, 2022 may be remembered as the year in which Canada modernized its health care system. It couldn’t come soon enough.

In the waning days of 2021, the Ontario Superior Court (Divisional Court branch) ruled that the province’s government violated the constitutional rights of Ontario teachers from ethnic minority backgrounds. The offending, unconstitutional, discriminatory policy? Requiring prospective elementary and secondary school teachers to pass a Grade 9 mathematics test. This untenable judicial intervention in a contested area of social policy presents yet another occasion for a justified recourse to the notwithstanding clause, a constitutional mechanism designed precisely with such a situation in mind.

By way of background, in 2019, alarmed by falling student math scores, the Ford government introduced legislation to require teachers to pass a Mathematics Proficiency Test (MPT). It is emphatically not a difficult test. It consists of 75 multiple choice questions, assessing basic math skills taught in Grades 3 to 9—in other words, skills which any Ontario student is already required to master to graduate—as well as mathematics pedagogy. The test was designed as a two-hour test, but test-takers are allotted three hours to complete it. Those who do not pass the MPT at the first attempt are allowed an unlimited number of retakes. A score of 70 percent on both the mathematical and pedagogical questions is required to pass. Unsurprisingly, over 85 percent of all test-takers manage to pass it.

One might well think that it is perfectly reasonable to require teachers to know at least as much as their students, given that any Ontario teacher can be required to teach mathematics. Not so for the Ontario Teacher Candidates’ Council, an organization established with the help of the Ontario Teachers’ Federation to oppose the test. It launched a constitutional challenge against the legislation, arguing that the MPT was discriminatory because it adversely impacted racialized teacher candidates. To put it more bluntly, the Ontario teachers’ union was arguing that teachers from minority backgrounds could not be expected to know how to do basic math.

The Divisional Court agreed with this remarkable proposition. Three judges ruled that mandatory teacher competency testing in mathematics led to a “significantly lower pass rate for racialized teacher candidates” and “places additional burdens on racialized teaching candidates, imposes burdens and denies benefits in a manner that has the effect of reinforcing or perpetuating disadvantage.” It held that the MPT violated section 15 of the Canadian Charter of Rights and Freedoms, which provides that “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.” The court struck down the legislation and ordered the Ontario College of Teachers to certify teachers who did not pass the MPT, but who otherwise met the requirements.

Fortunately, the notwithstanding clause remains a ready remedy for such temerarious excesses of judicial power. As the Supreme Court of Canada explained a 1998 decision, “s. 33, the notwithstanding clause, establishes that the final word in our constitutional structure is in fact left to the legislature and not the courts.” Previously, the Ford government had reason to invoke s. 33 in response to a court ruling that struck down restrictions on third-party political spending.

The use of the notwithstanding clause does not amount to the abdication of constitutional rights, as critics often claim. Rather, the clause is an integral part of the Charter that permits a legislature to express its disagreement with judicial interpretations of rights, and to act in accordance with a reasoned, alternative conception of the meaning of a right. Our democratically elected representatives may reason that properly interpreted, section 15 requires governments to respect persons as equals, in contrast to the Divisional Court’s view that a math test is discriminatory purely because it leads to differential impacts.

Ironically, for many years after the Charter’s enactment, the Supreme Court of Canada supported this very conception of equality rights, according to which the central question was whether a particular law demeans a person’s dignity. Can it truly be argued that expecting teachers to demonstrate their competence in basic math—an essential occupational requirement—is demeaning of their dignity? To ask the question is to answer it.

Some critics of the notwithstanding clause also contend that invoking it without appealing the relevant court ruling is illegitimate. But where it is the courts’ own jurisprudence that engenders a flawed interpretation of Charter rights, expecting an appeal to be undertaken may be both futile and a concession to the very judicial supremacist thinking that s. 33 was meant to counterbalance.

The Divisional Court’s decision was in many ways the logical consequence of recent Supreme Court precedents, which it was legally bound to apply. In a 2020 case called Fraser, the Supreme Court held that courts may find a law to be discriminatory purely on the basis of their “adverse effects,” without regard to the intent of the law or to the government’s conduct. This approach, as one distinguished appeal court judge has suggested, adopts a “reductive” conception of discrimination that may impugn virtually any law, and stymies the power of governments to act for the common good.

Spurred by that logic, the Divisional Court concluded that the MPT constituted discrimination and that “requiring a math course for B.Ed. programs would be significantly less impairing of equality rights.” In doing so, it relied on readings of contested social science evidence—which may also prove difficult to appeal, thanks to a 2013 ruling from the Supreme Court that appeal courts should generally defer to lower courts’ determinations of “social and legislative facts.”

But it is not unreasonable to require teachers to prove they know as much math as a grade nine student, and it is patronising to suggest that teachers from minority backgrounds cannot be expected to handle a basic math test. Here, the Ontario legislature made a reasoned judgment for the common good, seeking to uphold pedagogical standards that ultimately benefit students of all backgrounds. When the courts insist on undoing such judgments on the basis of a flawed interpretation of a Charter right, the legislature may be duty-bound to invoke the notwithstanding clause.