B.C. GOVERNMENT OUT TO SCUTTLE MEDICARE TRIAL
Volumes of evidentiary objections aim to limit testimony by doctors, patients
The B.C. government is complicating the constitutional challenge to Medicare by raising innumerable objections and claiming even statements by health ministers are irrelevant.
The marathon trial is bogged down in procedural disputes and B.C. Supreme Court Justice John Steeves is struggling to re-start it faced with the government’s unprecedented steps.
He plans to sit well into next year, but can’t yet schedule even a solid fortnight of witnesses because Victoria wants to constrain doctors’ testimony and restrict the information the two clinics and representative patients want to present to bolster their case.
There are two volumes totalling 664 pages of detailed evidentiary objections.
Most importantly, Victoria seeks to block much of the testimony of Dr. Brian Day, a founder of the Cambie Clinic in 1996 and the face of the dispute.
Government lawyer Jonathan Penner accused him of trying to politicize the trial based on a 60-page synopsis of what he will say.
Day wants to name names and tell tales out of school about the behind-the-scenes support the clinics have received from successive governments and health ministers going back to the previous century when the B.C. NDP were last in office.
“Your Lordship may recall saying at one point over a year ago … that this trial was not going to be an opportunity for people to get up into the witness box and get things off their chest,” Penner said.
“In my submission that’s exactly what the plaintiffs are asking these witnesses to do and particularly Dr. Day.”
Penner claimed Day and other doctors opened the clinics only for the money.
“They say he’s doing it for the money,” Day’s lawyer Peter Gall fumed. “It’s extreme. They should not be saying that.”
The plaintiff ’s legal team maintained that the government is stonewalling the introduction of evidence “to make it virtually impossible for the court to have the complete record it needs.”
“This is contrary to everything the courts have said about how government should conduct themselves in Charter cases,” Gall added.
“Why would Dr. Day be prevented from testifying about certain indisputable facts, like the date a government-commissioned report was issued? There is no good reason to exclude this evidence. It’s not grandstanding or political theatre.”
There are more than 60 clinics operating in B.C. treating 60,000 people a year — Cambie treats about 3,800 — and that didn’t happen overnight, Gall pointed out.
“This took place over 20 years without any meaningful steps being taken to stop it” by either the B.C. NDP or Liberal administrations because the government knows the clinics are needed.
“It does seem a myth that private clinics don’t exist in the province,” Justice Steeves quipped.
“It (private care) has become essential to the system … that is what the evidence is going to show,” Gall said.
He complained Victoria also is taking “the position that the persons responsible for health care in the province — the government’s own officials — have no relevant, first-hand information about the operation of the health care system.”
Penner argued what health ministers or officials said about the law, even in the House, was irrelevant.
Day and his group say that long-standing political acceptance and support of the private surgeries show the prohibitions in the Medicare Protection Act don’t serve a valid purpose.
The plaintiffs say the law breaches the constitution by violating three principles of fundamental justice — it is arbitrary, overly broad and grossly disproportionate.
In their view, for instance, exemptions for accessing private care for those covered by WorkSafe B.C., RCMP officers, federal prisoners and some others are irrational.
This fight has its roots in a provincial government funding change in the 1980s from a pay-for-performance system to one of global budgets that led hospitals to ration surgical services and restrict operating times to control costs.
That produced lengthy waitlists by the mid-1990s and the establishment of the clinics.
Day said the idea came from the Seaton Royal Commission’s 1991 report that recommended private clinics as a means for government to control spiralling health care costs.
The fundamental issues in the trial have already been canvassed before the Supreme Court of Canada in a Quebec case in which Day was an intervener.
In its 2005 Chaoulli ruling, the high court said “access to a waiting list was not access to health care” and concluded Quebec’s similar restrictions on access to private care was unconstitutional because the rationing of health care had created dangerous waiting times.
Given that decision, the 13 months of proceedings so far in this case are a prime example of the legal culture of complacency.
Although British Columbians are putatively suffering and even dying as a result of the harms lengthy wait-lists cause, there is no urgency.
The evidence could all be admitted and Steeves decide afterwards what to accept and what to disregard.
Instead, he has indulged days of legal argument about what Day and other doctors will say and will hear more when proceedings resume Oct. 30.
• NEXT: What Dr. Day wants to say.