Joanna Baron: The Supreme Court ducks an opportunity to actually address our health-care crisis

In 2022, the average patient wait time from referral to care was 27.4 weeks
Dr. Darius Viskontas, right, with assistance from Dr. Anne Wachsmuth, removes a cyst from a male patient's knee at the Cambie Surgery Centre, in Vancouver on Wednesday, August 31, 2016. Darryl Dyck/The Canadian Press.

On April 6th, B.C. Health Minister Adrian Dix issued a press release praising the Supreme Court’s decision to deny leave in Dr. Brian Day and Cambie Surgery Centre’s constitutional challenge. The Court’s decision ended a 14-year-long challenge against provisions of that province’s Medicare Protection Act which bans private health insurance and dual medical practice, effectively suppressing the emergence of a private health-care system. The release highlighted that the decision “bolsters our public health-care system.” 

Dix, who early in the pandemic contracted out to private clinics in order to clear B.C.’s surgical backlog (it worked), knows well that it will take more than a Supreme Court leave decision to revive the lagging public system. It is in deep crisis, with wait times for surgeries and medically necessary procedures longer than they’ve ever been. More than 80,000 patients in B.C. currently are on waiting lists, and many have been waiting for more than two years. Many will die while waiting.

There are two gaping holes in the law that the Supreme Court’s decision to refuse leave in the Cambie matter. First is the issue of the Court’s 2005 Chaoulli decision, in which similar provisions in Quebec were challenged under s. 9.1 of the Quebec Charter and s. 7 of the Canadian Charter. Chaoulli remains good law and grants Quebeckers the right to purchase private health insurance.

The tie-breaking judge in the case, Deschamps J., found that the laws could not be justified: “Preservation of the public plan is a pressing and substantial objective, but there is no proportionality between the measure adopted to attain the objective and the objective itself.”

Former Chief Justice Beverley McLachlin’s analysis cogently held that:

Where lack of timely health care can result in death, the s. 7 protection of life is engaged; where it can result in serious psychological and physical suffering, the s. 7 protection of security of the person is triggered. In this case, the government has prohibited private health insurance that would permit ordinary Quebeckers to access private health care while failing to deliver health care in a reasonable manner, thereby increasing the risk of complications and death.

As a result of Chaoulli, an attenuated but growing market of private care options has since been sprouting up in Quebec. Francois Legault’s CAQ government, hoping to alleviate pressure from nearby hospitals, has proposed a pair of new medical centres to be built in Montreal’s east end and Quebec City. The privately run “mini hospitals” would be open seven days a week and include a family medicine clinic, a 24-hour emergency room for minor ailments, and day surgeries. 

The Cambie litigation posed a simple question: does Chaoulli’s reasoning apply to the rest of Canada? McLachlin J., along with Justices Major and Bastarache, concluded in that case that Quebec’s laws violated both the Quebec Charter and s. 7 of the Canadian Charter.

Delays in the public system have only grown worse in the seventeen years since Chaoulli was decided. A 2022 study by the Fraser Institute found Canadian waiting times to be the worst in history that year, with an increase of 195 percent in waiting times since 1993, when the average wait time was seven weeks from a referral from a general practitioner to receiving care from a specialist. In 2022, the average wait time was 27.4 weeks.

Wait times for medically necessary treatment are not benign inconveniences but can have severe consequences for physical and mental health. They also can result in deteriorating conditions and permanent medical damage (like in the case of then-eight-year-old Walied Khalfallah, a patient plaintiff in the Cambie litigation, who suffered permanent paralysis as a result of delayed spinal surgery).

There are generally two reasons why the Supreme Court refuses leave. First, leave will be denied if the case does not raise an issue that is of national public importance. Given the rapidly growing wait times in the public system, the phenomenon of closed emergency rooms due to lack of staffing over the last year, and backlogs that swelled to record levels post-pandemic, the public importance of the status of health care in this country is not reasonably open to debate.

Second, as an apex court, the Court is responsible for providing clarity and consistency and will opt to hear a case when an issue is demonstrably causing irregularities and confusion among lower trial and appellate courts. The issue of the constitutionality of restrictions that prevent patients from going outside of the public care system would seem to be the archetypal case of one which has seen debate and splitting amongst lower court judges.

The B.C. Court of Appeal’s decision reflected extreme hand-wringing. The Court unanimously overruled the trial judge’s inexplicable finding that languishing on a long wait list did not infringe the s. 7 right to life, identifying serious errors in his reasoning.

The appeal court also wriggled out of treating the right to go outside a failing government system instead of suffering on lengthy waitlists as the obvious liberty interest that it is by claiming that government health care itself is a principle of fundamental justice, such that any impact on individual rights to life, liberty, and security had to be counterbalanced by the overriding imperative of safeguarding the public system.

The majority of the B.C. Court squared this circle by importing the philosopher John Rawls’ ‘original position’: hypothetically, what would you have consented to in advance if you didn’t know what your station in society would be? Their markedly non-jurisprudentially grounded reasoning asserted that: “one should [choose a health care system] on the basis that no one knows whether they will be among those with sufficient resources. It may be that one will fall into the group without those resources.”

The original position or veil of ignorance represents Rawls’ version of social contract theory—the contract between the state and its citizens, the former providing essential services and security in exchange for the latter’s adherence to laws. Notably, though, a third concurring justice seemed to hint that the reciprocal aspect of the social contract had long since been violated in Canada’s public care system: “In this context, it seems to me that asking patients to wait beyond a medically determined benchmark and thereby to incur an increased risk to life and limb is grossly disproportionate to the object.”

It is entirely delusional to count the B.C. appellate decision as a re-affirmation of the current status quo, if one bothered to read it.

Finally, credible arguments have been made that an area as complex as health-care policy is not the proper purview of the Court but that of the legislature. Indeed, the court may not act as a legislative body, but it can and does demarcate certain outer limits of government action under the bounds of the Constitution. In Chaoulli, the Court concluded that a blanket ban on going outside the public system in all circumstances is excessive.

But this is a court that has, in recent years, boldly overturned bans on medically assisted suicide, criminalization of brothels and security for sex workers, and provisions of the Controlled Drugs and Substances Act which banned trafficking illegal drugs. And yet suddenly, it has gone silent on perhaps the largest looming crisis of our time. Cowardly is a word that comes to mind.

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