MEDICARE LITIGATION SAILING ROUGH SEAS INTO LEGAL LIMBO
The B.C. government believes the becalmed marathon medicare constitutional challenge is in danger of becoming a Flying Dutchman — a ghostly trial galleon manned by a cursed crew condemned to sail procedural seas forever.
“In my submission, there is literally no end in sight,” its lawyer Jonathan Penner cautioned as B.C. Supreme Court Justice John Steeves faced another round of seemingly endless squabbles over what constituted “evidence.”
Representing two clinics and a handful of patients in the litigation, the frustrated-sounding plaintiffs’ lawyer complained it was all Victoria’s fault.
Peter Gall maintained that the government’s tactics since the trial began in September 2016 were obstructionist and that Steeves should be accepting evidence in the same manner as in other constitutional cases.
“If this approach is accepted, it’s going to effectively negate the fundamental rights of Canadians enshrined in the charter,” he fumed.
Unlike this trial where the government has carefully parsed reports and testimony, Gall said judges in other constitutional suits accepted evidence even if it contained elements of hearsay or opinion as “relevant as background or social context.
“And in all of those cases, the court said that we’ll consider the evidence, all of the evidence tendered, and we’ll then decide what weight if any should be given to any particular piece of evidence.”
The court was told challenges such as Bedford, where the country’s prostitution laws were at issue, took a single month; Carter, about assisted suicide, took 20 days; the Insite case about safeinjection sites required eight days; the Yukon Francophone School Board case took nine; and Chaoulli, the Quebec case about the same issues under scrutiny, required only a month.
These other cases were handled efficiently because “the judges held that, ‘I’ll determine the relevance, the weight, the importance of the evidence after I hear the entire case,’” Gall said.
This trial has consumed more than 82 days of trial time, plus additional weeks in chambers, and the plaintiffs’ case still isn’t in.
Yet, as Penner pointed out, “the volume of material put before the court is virtually unprecedented in Canadian constitutional litigation outside of the very special circumstances of Aboriginal rights and title litigation.”
Ironically, he handed up another six thick volumes as he denounced the unprecedented mountain of “egregious inadmissible evidence.” Before the trial collapsed under its own weight, Penner said he felt compelled to constrain what Dr. Brian Day, the face of the suit, wanted to say.
There were two weeks of debate last year over his expected testimony, and the court now is dealing with Day’s second affidavit, ninth rendition.
“I will simply make the observation that what Dr. Day has provided is not in my submission an affidavit but a polemic in an attempt to engage the court in political theatre,” Penner said.
The court must rein him in, and the plaintiffs generally, he insisted.
Gall said Penner’s interpretation of what was admissible meant Day couldn’t testify to his own birth date because he wasn’t conscious enough to have a firsthand memory.
The government accused Day of money-grubbing as a shareholder in Cambie Surgeries, but didn’t want him answering questions about the corporation’s finances.
For instance, Penner maintained Day was in no position to testify the surgery centre has a relatively small profit margin and suffered a significant loss as recently as 2014.
“Why can’t he say, ‘I’m running a business and it’s not always profitable?’” Steeves asked.
“That’s an expression of opinion, my lord,” Penner replied. “In order for it to be admissible evidence, it has to be provided by someone who is qualified to provide that opinion.”
“Well, it’s his business,” Steeves noted.
“He certainly plays a key role in running it, but when Dr. Day asserts that the profit margin is small, he is expressing an opinion,” Penner said.
Steeves asked if it even mattered if the firm was profitable or not?
“No, it doesn’t matter,” Penner said, except “to further their argument that the goal of Cambie is not to make a profit but rather to provide a public service, and as I submitted earlier, that’s not relevant.”
It took Penner three days to itemize the government’s often-picayune concerns, scores of objections to about half of Day’s lengthy second affidavit, number nine, with 874 pages of exhibits.
“This case could have been completed in a few months if there had not been constant challenges of the defendants to evidence that is both helpful and beyond any real or reasonable dispute,” Gall said.
This trial is about whether provisions of the Medicare Protection Act that restrict access to private care are constitutionally valid if people are needlessly suffering, perhaps even dying, waiting for treatment.
Unfortunately, that appears to have been lost.
Former Supreme Court of Canada justice Michel Bastarache last April said of this trial: “I’ve been told that over the last few weeks there have been 17 decisions on admissibility of evidence, four of which are now being appealed. One would think the rules of evidence are so vague that there is absolutely no certainty in their application. I’m told that Cambie is set to be continued for another six to eight months. There must be more rigour in our courts. The judges must exercise their authority to prevent irrelevant questioning and limit the time for certain presentations.”
Debates over the admissibility of evidence continue. The trial is slated to resume in April, with no end in sight. imulgrew@postmedia.com