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A lawyer arguing to allow patients to pay privately for faster access to medical care invoked several of Canada’s most pivotal constitutional challenges in contending that government cannot deprive citizens of their right to protect themselves from harm.

Peter Gall is representing plaintiffs including Vancouver orthopedic surgeon and private-medicine advocate Brian Day in the decade-long constitutional challenge of B.C.’s Medicare Protection Act. During closing arguments before the B.C. Supreme Court on Monday, he compared the legal battle to past decisions that struck down Canada’s prostitution laws, opened the door to medical assistance in dying and ordered Ottawa to stop interfering with the Insite supervised consumption site.

“They were all cases where the state was imposing unnecessary harm on citizens by preventing them from being able to make their own health decisions,” Mr. Gall said before Justice John Steeves, citing the Charter-protected right to life, liberty and security of the person.

“And that’s just like this case. Our fundamental point in this case is that the government legally, constitutionally, under the Charter, has to have a compelling reason to take this fundamental right away from citizens.”

The closing arguments in the case, which threatens to upend the foundation of Canada’s public health-care system, are scheduled to last three weeks.

The government has described the plaintiffs’ challenge as “political theatre, and an attempt to force change on the health-care system for the financial benefit of the corporate plaintiffs.” A coalition of intervenors, which includes the BC Health Coalition and Canadian Doctors for Medicare, says the plaintiffs are trying to create a two-tier system as an effort to profit off people’s illnesses.

“We joined this court case because we believe in defending a public health-care system where everyone is covered, everyone is treated equally, and no one goes broke paying for their care,” said Edith MacHattie, a representative for the coalition.

"All that this case has proven is that a private for-profit system would improve access for the healthiest and wealthiest while creating longer wait times for everybody else.”

Dr. Day, who observed the proceedings from the front row of the courtroom gallery, said on Monday that he was pleased that the matter is out of the political arena and before a judge. Two political parties under three premiers in B.C. have fought Dr. Day’s claim; the federal government joined the case as an intervenor after Justin Trudeau’s Liberals won the 2015 election.

“B.C. has established maximum acceptable wait times beyond which patients shouldn’t wait … and the evidence in the trial, from the government’s own data, is that thousands and thousands of British Columbians are waiting beyond those medically acceptable times. And there is no recourse for those patients,” Dr. Day said.

“What we believe is that the government can’t have it both ways: You cannot promise health care and then fail to deliver it in a timely matter, and at the same time make it unlawful for an individual to take care of their own health.”

For more than two decades, Dr. Day’s Cambie Surgery Centre and other private surgical clinics have provided patients, who paid out of pocket, swifter diagnostic testing, specialists’ assessments and surgeries. The practice violates a law that Gordon Campbell, B.C.'s Liberal premier from 2001 to 2011, and his government chose not to enforce – just like its NDP predecessors.

Mr. Gall argued on Monday that this experience disproves any “speculative harm” that allowing private, paid-for options would undermine access to the provision of services in the public system.

The case landed in B.C. Supreme Court in 2016 with support from four of Dr. Day’s patients.

In 2018, Health Minister Adrian Dix announced that the government would begin to fine doctors $10,000 for a first offence and $20,000 for a second violation of the act if they charged patients for publicly available services.

However, Dr. Day successfully sought an injunction that prompted a B.C. Supreme Court judge to order the government not to enforce sections of the act until their validity could be established at trial.

With a report from the Canadian Press

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