A Charter challenge to the foundations of Canada’s health-care system is motivated by the financial benefit of corporate plaintiffs and cannot be compared with landmark constitutional cases, a federal lawyer has argued.
B.J. Wray, a lawyer representing the Attorney-General of Canada, told B.C. Supreme Court Justice John Steeves on Wednesday that in constitutional challenges such as those that struck down certain prostitution provisions and opened the door to medical assistance in dying, the plaintiffs proved that the regulations in question directly violated their Charter rights. The court then extended its finding to others who are similarly affected.
In contrast, Ms. Wray said, the plaintiffs in the current case, led by Vancouver orthopedic surgeon and private-medicine advocate Brian Day, are relying on evidence from third parties and “generalized evidence of wait times” to challenge the constitutionality of key provisions of B.C.’s Medicare Protection Act.
“We say it is not appropriate to say that without evidence from the applicants themselves, of their own situations and the harms that they have encountered, that a court could just substitute the evidence of third parties, or perhaps evidence of generalized data, into [an analysis of Charter violations] in order to establish the harm,” Ms. Wray said.
“It would be, in our view, a very dramatic departure from the jurisprudence.”
The plaintiffs argue that patients have a constitutional right to pay out of pocket for swifter access to necessary medical care when waiting times in the public system are too long.
They seek to overturn key provisions that prohibit physicians from accepting pay from both public and private purses, limit extra billing and ban health insurance for services that are already covered under the public plan, called duplicative health insurance.
The marathon legal battle, which has stretched more than a decade, concludes this week with closing submissions.
Ms. Wray also argued that the landmark cases dealt with absolute criminal prohibition: It was illegal to provide medical assistance in dying, and illegal to keep or be in a “bawdy house,” or brothel.
“Contrast that to the impugned provision with respect to extra billing,” Ms. Wray said.
“It is, of course, not an absolute prohibition … the extra-billing provisions say only that a public doctor, an enrolled doctor, cannot charge for insured services. But they don’t prohibit the doctor from going outside of the public system and providing those services, or from staying inside the public system and providing those services at [provincial Medical Services Plan] rates.”
As well, Ms. Wray said that striking down the criminal prohibitions in the other cases actually had the effect the plaintiffs were seeking: They removed the barriers to accessing medical assistance in dying, and the barriers for sex workers to work in indoor spaces. “In this case," she said, "removing the impugned provisions will not remedy the problem that the plaintiffs are complaining about – mainly the existence of wait times that they say are too long and are causing harms.”
“Here, the evidence establishes that the impugned provisions are not the cause of wait times. There are many complicated causes for wait times, and there’s also evidence … that removing the impugned provisions would actually lengthen wait times.”
Derek Knoechel, a lawyer representing a number of patient intervenors, said “the underlying principles of medicare have been repeatedly affirmed and endorsed by Canadians and British Columbians as one of the defining features of what it means to be Canadian.”
He recounted the experiences of several of the intervenors, including Mariel Schooff, who years ago was told that she could be treated for her sinus operation faster at a private clinic.
The physician, who did not disclose that he was a shareholder at the clinic at the time, billed the province $882.47 for her surgery, while the clinic charged her $6,125. Ms. Schooff went to the media and challenged what the clinic was doing.
“The corporate plaintiffs in this case, they position themselves as advancing a claim on behalf of ordinary British Columbians," Mr. Knoechel said. "We say that they certainly do not speak on behalf of the patient intervenors.”
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