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People protest outside of the B.C. Supreme Court on Sept. 6, 2016, before the start of a new lawsuit demanding private health care in Canada. (John Lehmann/The Globe and Mail)
People protest outside of the B.C. Supreme Court on Sept. 6, 2016, before the start of a new lawsuit demanding private health care in Canada. (John Lehmann/The Globe and Mail)

Constitutional challenge against Canada’s health-care system begins Add to ...

A court case that could reshape Canada’s public health-care system began with a lawyer for a private Vancouver clinic arguing that barring patients from accessing private health care and forcing them to suffer on long waiting lists violates their Charter rights.

The constitutional challenge, which is being heard in B.C. Supreme Court in Vancouver, reignites a debate that had its last major legal test in 2005, when the Supreme Court of Canada ruled a Quebec ban on private health care was unconstitutional. That ruling, however, applied only to Quebec.

The B.C. case has generated immense interest and a rally on the courthouse steps ahead of Tuesday’s hearing drew a couple dozen public health-care supporters. Inside, a courtroom with approximately 80 gallery seats quickly filled up and some observers were forced to stand.

Peter Gall, counsel for Cambie Surgeries Corp. and four of its patients, told the court the B.C. government does not provide timely medical services and its failure causes real and substantial harm to the physical and mental health of residents. He said many British Columbians have suffered and continue to suffer because of lengthy waiting lists.

“Because the public system has failed to protect the health of all British Columbians, the government cannot constitutionally prohibit British Columbians from accessing private health care in the province,” he said.

Mr. Gall said the province’s conduct amounts to a Charter breach, and that allowing British Columbians to access private health care will not undermine the public system.

“In addition to better enabling British Columbians to meet their health-care needs, it should and likely will spur improvements in the public health-care system, improvements that have been … difficult if not impossible to achieve because of the perceived need to preserve a public monopoly over core medical services,” he said.

Mr. Gall’s opening statement is expected to take four days.The trial is expected to run for six months.

Outside court, Brian Day, medical director of the Cambie Surgery Centre, said B.C. residents should have the same protections the Supreme Court of Canada granted Quebec.

“The government doesn’t need to trample on the constitutional rights of Canadians in order to deliver an effective health system. So we’re hoping that that argument will be heard,” he told reporters. Dr. Day said one of the plaintiffs in the case waited 27 months for spine surgery and ultimately became paralyzed.

But Rupinder Brar, a physician who is on the board of Canadian Doctors for Medicare, an intervenor, told reporters: “This case is about profit and not patients.”

“Our health-care system needs improvements, we need to decrease the wait times. As a family physician, I see patients every day and I’d like them to wait less for care. But ultimately, the solution is not to introduce a for-profit sector,” she said.

Gayle Duteil, president of the B.C. Nurses’ Union, said outside court her group opposes private health care and believes public health care needs to be properly funded. “This is about public health care, the jewel of Canada’s health-care system. It’s a core value of our society and we have to defend it,” she said.

Ms. Duteil said her union is representing four patients who are intervening in the case.

B.C. government lawyers have not yet made their opening statement. The province has said its priority is to uphold the Medicare Protection Act and “the benefits it safeguards for patients.”

B.C. Premier Christy Clark, when asked about the case at an unrelated news conference, said B.C. has a legal obligation to defend medicare.

“So we’re doing that and we’ll see what the court decides,” she said. “We’re watching closely. Both sides are making compelling arguments.” The province’s minister of health, attorney-general and Medical Services Commission are named as defendants.

The federal government announced in April it would intervene in the case and has said many of the provisions in the B.C. legislation mirror those of the Canada Health Act, “making this case of significant importance not only to British Columbians, but to all Canadians.”

The federal government has said Canadians “overwhelmingly” support universal health care and “any challenge to a principle so fundamental to our health-care system is of significant concern to the Government of Canada.”

With a report from Andrea Woo

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