Skip to main content

Banning extra-billing does not violate the constitutional rights of Canadians.

Banning the sale of private insurance for medically necessary care does not violate Charter rights.

Preventing doctors from working simultaneously in a public and private health care system is not unjust.

Once again, the courts have spoken – in this case, via a three-judge panel of the Court of Appeal for British Columbia, which rejected an appeal of a B.C. Supreme Court ruling upholding key provisions of the B.C. Medicare Protection Act.

The message in the 142-page court ruling is a forceful, sensible one.

In Canada, access to medical care should be based on need, not ability to pay, “in keeping with our society’s foundational norms to prioritize fairness and [choose] a needs-based model,” the judgment reads.

Depriving some people of the ability to buy access to care privately may affect them negatively, the court acknowledged. But queue-jumping could have an equal or greater impact on those who can’t afford to buy private insurance or private care and are left behind.

Refreshingly, we were reminded that, in this country, individual rights do not always reign supreme. The impact of laws on the collective must be considered, too.

Explainer: B.C. Court of Appeal has rejected case calling for right to pay for private health care. Here’s what you need to know

Brian Day, an orthopedic surgeon and chief executive officer of Cambie Surgeries Corp., who has been fighting for years to loosen access to private medical care, has been upended again.


In short, because he and his legal team failed to demonstrate that throwing the doors open to private practitioners would “not negatively affect public health care.”

The ruling will undoubtedly be appealed and the Supreme Court of Canada will have the final say. The legal action has been limping through the courts since 2009. So, what’s a few more years?

In the meantime, let’s be careful not to get too excited about what is being hailed as a “victory for medicare.”

Access to timely health care, and surgical care in particular, is no better today than it was yesterday.

Wait times in this country are abysmal, and getting worse. The court ruling changes nothing for the tens of thousands of Canadians on waiting lists.

The learned justices overseeing the appeal said repeatedly in their ruling that excessive waits cause harm, but adeptly sidestepped the really tough questions: How long is too long to wait? Who decides? And what is the remedy if the wait is harmful?

All the judges did was state that more access to private care would not necessarily be a remedy, which, to be frank, is largely obvious. Vilification of private, for-profit health care may make our patriotic heart beat a little faster, but solves nothing.

The more difficult question is: What will?

We know that unacceptably long waits are harming – even killing – people. But how are we going to fix that?

Dr. Day isn’t going to solve the problem. Neither is the Supreme Court of Canada.

Politicians, policy-makers and medicare boosters have no business celebrating this court ruling.

All their energies should be put into fixing medicare, to shoring up a publicly funded health system that seems to be collapsing around us.

Buried in the B.C. Court of Appeal ruling is a sobering reminder from Justice Lauri Ann Fenlon: “There is no Charter right to health care. The state is not under a legal or constitutional obligation to provide health care to its citizens.”

This is not a legal issue, it’s a political and societal one. A moral one, even.

The foundation of medicare is a noble notion: No one should be denied essential health care because of an inability to pay.

While obsessing about the latter, we seem to have forgotten the former.

Today, too many Canadians are being denied essential health care – or at least timely access to it. That is an unacceptable breach of the social contract. Whether it is a violation of the Charter may matter to lawyers, but it doesn’t matter to a patient living with excruciating pain for months because their surgery has been delayed.

It’s great that Canada has grand principles like equitable access to care for all.

But we must give life to those principles.

Follow related authors and topics

Authors and topics you follow will be added to your personal news feed in Following.

Interact with The Globe