It is the biggest legal challenge to medicare yet. A lone judge will hear a private medical clinic's claim that the public system is exposing patients to serious risk of harm, even death, by forcing them to wait too long for care and making it difficult for them to pay for private care on their own.
The case, to begin late this year or early next year in Vancouver, highlights the growing importance of federally appointed trial judges – and, as a result, of the appointment process that gives them their power.
A major shift has occurred just beneath the surface of Canadian law, attracting little public notice. Less than two years ago, the Supreme Court ruled that a trial judge's findings on so-called social facts, such as how a ban on street soliciting affects the safety of prostitutes, should rarely be overturned by higher courts. As a result, two major laws have fallen – prostitution laws and a ban on assisted suicide – in Supreme Court rulings shaped by the fact-finding of trial judges. Both trial judges were appointed by Liberal governments, and both had backgrounds in social justice.
The new-found power of trial judges will play out in the medicare case. What one judge determines to be the all-important facts – how the suffering of patients at the Cambie Surgery Centre in Vancouver has been affected by the public system, including the lack of extra-billing and user-pay options – could alter a defining feature of Canadian life. It is not known yet who the judge will be.
Joel Bakan, who teaches law at the University of British Columbia, is concerned social programs such as medicare can be "decided in effect by a single judge listening to competing expert testimony in the context of litigation. We're talking about a single judge with his or her own values and dispositions and expertise."
The federal government's appointment of judges is a mostly unfettered power, as a Globe and Mail investigation highlighted last weekend. Except at the first stage, when independent screening committees across the country mark applicants as recommended or not, the appointment power is in cabinet's hands, entirely behind closed doors, with no public hearings at which questions can be asked of new appointees, or of the government that chose them. For nearly 10 years, the Conservative government has been seeking candidates it believed would defer to Parliament and not go out of their way to defend individual rights.
"People were extremely naive back in 1982 if they didn't see this coming," University of Calgary law dean Ian Holloway said, referring to "the politicization of the judicial appointments process. I don't know how anyone could have imagined that the same kind of tensions that have arisen in the U.S. wouldn't arise here."
The power of the country's federally appointed trial judges cuts both ways: They can help determine whether conservative crime laws or liberal social programs live or die.
"The fact-finding role of the trial judge profoundly shapes the outcome that the Supreme Court reaches," Prof. Bakan said.
Trial judges may serve as a kind of one-person royal commission of inquiry, on social issues that have bedevilled the country for years and that were once thought of as belonging to the realm of Parliament.
And because Canada has no tradition of "originalism" – being bound by the intent of the Charter's framers – it falls to the trial judges to keep the laws in tune with changing times. They can even overturn Supreme Court rulings.
But trial judges depend on the quality of the evidence presented to them by lawyers for the parties involved – in the medicare case, the Cambie clinic and the B.C. government. They do not go out and seek evidence on their own.
"We rely on the ability of lawyers to make sure that cases are well-argued," Prof. Holloway said. "In and of itself, that can be a problem. When I was a law student, I remember reading judgments and thinking, 'What kind of idiot wrote that?' But when I was a law clerk working for a judge, I came to realize that as often as not, a bad judgment reflects bad lawyering."
He said the power of trial judges raises questions about whether judges and their research staffs have adequate training for major public-policy cases. "These are issues we just can't continue to duck."
Prof. Bakan was a law clerk for the late Supreme Court chief justice Brian Dickson (1984-90), who did as much as any judge to expand the reach of the 1982 Charter's protection of life, liberty and security – the rights that brought down laws on assisted suicide and prostitution, and that pose a challenge to medicare.
"He was always very clear that the judiciary should be deferential when dealing with social legislation and social programs that have as their aim protecting vulnerable groups," Prof. Bakan said.
Here are some examples of cases in which trial judges' rulings are important.
Three sex workers challenged laws against operating a brothel, living off the avails of prostitution and street soliciting. The case went before Ontario Superior Court Justice Susan Himel. She had been appointed by the government of Jean Chrétien, and had worked in mental-health law with prominent Toronto advocate Barry Swadron before becoming public guardian and trustee of Ontario.
Justice Himel amassed 25,000 pages of evidence during the trial. She heard testimony from researchers on prostitution from the Netherlands, New Zealand, Australia, the United States and elsewhere, and ruled in 2010 that the Canadian laws at issue endangered prostitutes' lives. Even though the Supreme Court had upheld prostitution laws 20 years earlier, she said she was not bound by that precedent, partly because the Constitution is a "living tree" capable of growth over time.
The Ontario Court of Appeal said it did not have to defer to Justice Himel's findings on social and legislative facts. But the Supreme Court sided with Justice Himel. It said that, from here on in, appeal courts are bound by these facts found by trial judges, unless those facts are wildly wrong.
"This has enhanced the importance of the role for the judge hearing constitutional cases where such fact-finding is particularly significant," Justice Himel said in an interview by e-mail. "It allows for the possibility that judges of first instance, who must carefully review, analyze and draw conclusions from social and legislative evidence, may be faced with a changing environment and, thus, may see things differently than those presiding over cases heard in the past."
Two people suffering from debilitating diseases and a doctor challenged the criminal prohibition of physician-assisted suicide. The case went before B.C. Supreme Court Justice Lynn Smith, now retired. Justice Smith had been dean of the University of British Columbia law faculty and a founding director of the Women's Legal Education and Action Fund. The Chrétien government appointed her to the bench. Her activist credentials are rare among appointees of the Harper government, a Globe review found.
She heard testimony about jurisdictions in the U.S. and Europe that allow assisted suicide, and concluded they are successful in protecting those who are vulnerable to being pressured into accepting an unwanted death. Despite a 1993 Supreme Court ruling upholding the ban on assisted suicide, she struck down the law in 2012; as with Justice Himel, the province's Court of Appeal said she was wrong, that only the Supreme Court could reverse its 1993 precedent upholding assisted suicide. But the Supreme Court, as in the prostitution case, said Justice Smith was right, and used the facts she found to uphold her ruling.
Before becoming a judge, Ms. Smith had fought for feminist causes, including the battle over discrimination against pregnant women. But she said in an interview that her background is not what matters in the case.
"Judges are required to decide cases on the basis of the facts and the law, applying the values embodied in the law and the constitution – not on the basis of their own emotions or values," Ms. Smith said by e-mail.
Government cuts to refugee health care
Several refugees said government cuts were deeply harmful to their health; the government argued that those refugees had other options available to them. The refugees' challenge to the cuts went before Federal Court Justice Anne Mactavish, an appointee of the Chrétien government. She had been a president of the Canadian Institute for the Administration of Justice, a reform-minded group. Such credentials are rare among Harper government appointees.
In a ruling last summer, she found that the cuts created severe health risks, and that other options were not available. She struck down the cuts as "cruel and unusual punishment" under the Charter's Section 12, the first time that section had been successfully used outside of criminal law. The federal government has appealed the ruling.