April 20, 2017
Patients suffer as plaintiffs pause to fundraise for Cambie Clinic case
As you may have heard, the court has granted an adjournment to allow the plaintiffs, who are supported by the CCF, to pursue appeals of some of the more frustrating evidentiary rulings and to raise more funds to continue their Charter challenge to BC’s long healthcare wait lists.
Two articles this week describe the extraordinary up-hill challenge that the plaintiffs’ face. According to the original court schedule, the trial that began in September was supposed to be over by now. Unfortunately, obstructionist and dilatory tactics by the Crown mean the plaintiffs have barely had a chance to present half of their evidence, with no end in sight. The silver lining is this pause will allow the plaintiffs to raise a victory fund to see the case through to the end.
Read the latest on this case:
- BC plays the legal long game in private healthcare fight by Gary Mason (Globe and Mail)
- Costs, hypocrisy taking toll in Medicare constitutional challenge by Ian Mulgrew (Vancouver Sun)
The CCF remains committed to helping the plaintiffs defend their Charter right to life, liberty, and security of the person. To contribute to the victory fund, please donate through the following button.
April 10, 2017
Access to Timely Medical Care Threatened By Lack of Funds for Charter Challenge
The plaintiffs in a Charter challenge to BC’s excessive wait times for necessary medical treatment have requested an adjournment today because the Defendant’s litigation tactics have caused them to run out of funds.
The trial, which began in the BC Supreme Court on September 6th 2016, is about whether patients have been denied their constitutional rights to timely medical care. By failing to provide timely public health care to suffering patients, while simultaneously prohibiting them from obtaining that care privately, the Province is violating their rights under the Charter of Rights and Freedoms.
The case started 7 years ago and the trial was scheduled for 24 weeks, but after 7 months there is no end in sight.
The plaintiffs include four individual patients deprived of timely medical care in the public system, including one who waited 27 months for spine surgery as a child, and Cambie Surgeries, a small private clinic that has operated in Vancouver for over 20 years.
Dr. Brian Day, President of Cambie Surgeries, said:
“From the beginning of the case, Crown lawyers have pursued a tactic of using their virtually-unlimited taxpayer funds to exhaust our limited resources. On any given day our lawyers are outnumbered 10 to 1 in the courtroom. Objections are made to almost every attempt to introduce evidence by patients, doctors, and even by renowned healthcare experts. We have not been able to pay our legal bills for several months. We have no choice but to ask the court for a break to raise more funds so that we can carry on."
Millions of tax dollars are being spent to oppose the case. There are at least 20 lawyers and several teams of paralegals and researchers, funded by the federal and BC governments and intervenors, working against the plaintiffs, who are usually represented in court by a single lawyer.
Howard Anglin, Executive Director of the Canadian Constitution Foundation, which is supporting the plaintiffs, said:
“While governments spend millions of dollars trying to avoid the political consequences of a decision condemning their abysmal record of harmful wait lists and patient suffering, they are bleeding the plaintiffs’ financial resources dry. This is not simply unjust; it is a profound threat to the ability of ordinary Canadians to hold governments accountable for violations of individuals’ Charter rights. Canadians suffering on wait lists have the right to take control of their own bodies and arrange for private medical treatment. It is a right that has been endorsed by the Supreme Court of Canada, and which exists in every other developed country.”
A few months ago, the BC Health Minister proudly announced an increase of $25 million to try to reduce unacceptable wait times. Just a mile or two away similar amounts are being spent in court to argue that the more than 85,000 patients on hospital wait lists suffer no real harm as they wait.
Dr. Brian Day said:
“Private clinics in BC, like Cambie, treat over 60,000 patients each year. If the plaintiffs lose this case, the clinics will be closed and these patients will be added to the public hospital wait lists. This would mean even longer waits for all, and the loss of hundreds of millions of dollars that WorkSafe BC saves annually by getting injured workers back to work. Without doctors permitted to work above and beyond the limited operating hours they are allocated in public hospitals, more patients will suffer as they languish on wait lists.”
The trial of a similar case in Quebec took under four months. Quebec’s restrictions, which were similar to those that now exist in BC, were struck down by the Supreme Court of Canada in the 2005 Chaoulli case, where the court ruled that “access to a waiting list is not access to health care”.
“Success in this case will lead to all Canadians gaining the same freedoms from suffering that the Supreme Court said Canadians living in Quebec deserve”, said Dr. Day.
The plaintiffs intend to use the period of the adjournment to raise further funds from the public and supporters so they can resume their constitutional challenge on behalf of all Canadians who are suffering, or will suffer in the future, from cruel and worsening public wait lists.
March 28, 2017
Ian Mulgrew: Court dawdles in face of overcrowding, opioid crises
The trial continues to be dragged down by the Crown's delay tactics. The Crown is fighting the plaintiffs by forcing them to spend more time and money to continue the trial.
Ian Mulgrew of the Vancouver Sun continues to report from the courtroom:
While patients stack up like cordwood on gurneys in hospital corridors, opioid prescriptions skyrocket for people waiting in pain, the great democratic brake on unconstitutional government policy, the legal system, appears feckless.
This case is a prime example of why we need sweeping law reform.
It's cruel state of affairs that, in a constitutional challenge against government rationing and waiting lists, the crown is purposefully employing a strategy to make the patient plaintiffs wait even more for justice.
We will not be giving up.
Please donate to this campaign by using the button below. And please share this email on social media or by forwarding it to friends, family members and colleagues.
February 10, 2017
Why is the BC Government muzzling Health Minister Terry Lake?
Journalist Ian Mulgrew of the Vancouver Sun reports that the BC government has blocked Minister of Health Terry Lake from testifying in court about the history of wait lists in the BC healthcare system in connection with our landmark Cambie Clinic healthcare freedom case.
We think we know why.
Minister Lake has been admirably candid both about the shortcomings of the BC healthcare monopoly and the benefits of more competitive systems in Europe, Australia, and New Zealand. For example, Minister Lake has said:
About Public Funding Deficiencies and Cost Pressures:
Health Minister Terry Lake on Sunday said they have been working to reduce wait times for surgeries around B.C. Last year, an extra $10 million was pumped into the medical system to reduce wait lists, he noted. “(But) we are still not where we want to be,” he said. [Vancouver Sun, April 24, 2016]
About Unused Resources:
“But the reality is there are some things that the private sector can do under the Canada Health Act and under the Medicare Protection Act which will actually prove efficient. It can provide a shorter access to care without draining resources from the public health system.” [Hansard, May 26, 2015 (Volume 27, Number 4)]
“Patients want the best available service,” Lake said. “They want it to be effective, efficient and have high quality. I’m not an ideologue in terms of where patients get that treatment. The private system has always been an important part of public health care in Canada.” [Victoria Times Colonist, June 2, 2015]
About Wait Times:
“The reality is we’re still struggling with wait times, despite a huge increase in the number of surgeries that we are performing each and every year.” [Victoria Times Colonist, June 2, 2015]
Health Minister Terry Lake responded to Darcy in the legislature Monday, noting that the wait times are not acceptable. “We have to do better,” he said. “We have long wait lists for MRIs, even though we are doing three times as many as we did in 2001. The reality is we need to do better.” [Vancouver 24 Hours, Nov 3, 2015]
About Canada’s Performance Relative to Other Systems:
Lake said medicare isn’t performing as well as health systems in places such as Europe, Australia and New Zealand. He predicted there will be heightened interest in reform as the Canadian population ages and baby boomers discover they can’t get the medical services they need. [Vancouver Sun, January 16, 2016]
When asked to formally admit that Minister Lake made these statements, the BC Government’s lawyers responded with the nonsensical answer that:
“The Defendant admits that Minister Lake was quoted in an article published on or about 15 January 2016 in the Ottawa Citizen as having said words similar to those quoted in this request, but denies that that fact is relevant to the issues raised by the pleadings in this litigation”.
Well, of course he was quoted as having said words similar to those he was quoted as saying! And saying that his statement (which was about the quality of healthcare in Europe, Australia, and New Zealand) is not relevant to this case is beyond absurd.
The BC government is scared that Minister Terry Lake might actually say what he thinks! As a result, they are hiding behind some flimsy arguments about the relevance of his testimony and the doctrine of parliamentary privilege.
Parliamentary privilege protects legislators in Canada from being called as witnesses while the legislature is in session. However, the privilege can be waived at any time by the government, such as when the public interest in the Minister’s testimony outweighs the burden on his time. This constitutional challenge for healthcare freedom is of the highest public importance -- the suffering of BC residents and even their lives are literally at stake -- and the burden of testifying about matters that he has been working on for almost three years as Minister of Health is minimal.
The government’s refusal to waive the privilege and allow Minister Lake to testify is consistent with the obstructionist tactics that government lawyers used to drag out this case for seven years before the plaintiffs even got to court, and which the government is now using to drag out the trial.
In order to respond to the BC Government’s stonewalling, our lawyers had to rush to draft a legal response. As an experienced courtroom lawyer, I can tell you that the factum they drafted and filed is absolutely first rate legal work. But you don’t have to take my word for it, I’ve attached a copy at the end of this email so you can read it for yourself!
The Government’s tactical delays and the need to respond to obstructionist motions like this are driving up our legal costs and overwhelming our legal budget. If you agree that the patients plaintiffs and the Cambie Clinic deserve a fair and open trial of the question of our constitutional right to healthcare choice, please donate today.
For a copy of plaintiffs’ response to the Government’s motion to strike the subpoena of Minister Lake (which contains a full list of Minister Lake’s quotes), see here.
Your support pays for important legal work like the factum below!
Show the Government that it will not get away with blocking the truth from being admitted in court.
Send them the message that it is unacceptable for governments, with effectively unlimited resources, to drag out a constitutional challenge to its policies for year after year.
Help us ensure that the Government does not win their legal war of attrition, because they know they can’t defend their indefensible healthcare wait lists.
For more on the Government’s delay tactics, see my recent piece in the Edmonton Sun here.
Until next time,
Canadian Constitution Foundation
February 7, 2017
CCF Creates Resource for Expert Testimony in Cambie Clinic Healthcare Case
For the first time, the Canadian Constitution Foundation is making available in one place the full expert reports of all the expert witnesses who have testified to date in the constitutional challenge for healthcare freedom and patient choice, currently underway in British Columbia.
The reports, by some of Canada’s and the world’s foremost experts on health economics, healthcare policy, and comparative healthcare policy are a treasure trove of data, facts, and personal experiences of the crisis facing Canada’s healthcare system and how other developed countries have avoided the abnormally long wait times we see in Canada. It is an invaluable resource for anyone interested in reporting on this landmark constitutional challenge.
For example, linked below is the expert report (in two parts) of Dr. Daniel Kessler of Stanford Law School and Stanford Medical School. Dr. Kessler, who has a J.D. from Stanford Law School and a Ph.D in Economics from M.I.T., is one of the world’s leading healthcare experts. His expert testimony concluded that:
- There is overwhelming and irrefutable evidence of harm to the physical and mental health of BC residents from waiting for health services.
- The likely effect of allowing private financing and dual practice in BC would be to improve the well-being of those who continue to receive publicly-financed care.
- There is no persuasive empirical evidence that allowing private financing and dual practice would affect equity, and certainly not persuasive empirical evidence to support the hypothesis that allowing them would harm it.
- Allowing for-profit medical facilities to operate in BC would likely have either a null or positive effect on quality.
- Professor Michael Bliss, testified on September 19 - 20, 2016. (Report).
- Nadeem Esmail, testified on September 20 - 23, 2016. (Report).
- John McGurran, testified on October 12, 2016. (Report).
- Professor Ake Blomqvist, testified on November 4, 2016. (Report).
- Dr. Albert Schumacher, testified on November 17, 2016. (Report).
- Dr. Robert Hollinshead, testified on November 29 - 30, 2016. (Part 1, 2, 3, 4)
- Yanick Labrie, testified on December 5 - 6, 2016. (Report).
- Professor Alistair McGuire, testified January 24 and 26, 2017. (Report)
January 20, 2017
To supporters of the Charter right to healthcare freedom:
Over the Christmas holiday, I thought about how we at the CCF can do a better job of keeping supporters of the Cambie Clinic / healthcare freedom abreast of what is going on in the trial. The gradual daily accumulation of evidence is often difficult to distill into a newsworthy format, but rest assured it is happening, albeit much more slowly than we had hoped. After speaking with counsel, I think the best way will be for us to provide regular (likely biweekly or as newsworthy events demand) updates on who is scheduled to testify and what the most recent witnesses have testified about. I will also try to send links to relevant third-party coverage to supplement these updates from time to time.
With that, on to the latest update:
The good news is that the trial resumed this week after a several-week delay for Christmas!
The bad news is the Government of BC picked right up where it left off, challenging the qualifications and relevance of plaintiffs' witnesses and otherwise doing everything it can to obstruct the admission of evidence and drag out the case.
You can read about the government’s tactics in Ian Mulgrew’s latest piece in the Vancouver Sun. Mr. Mulgrew is one of the few journalists who has consistently and objectively covered the trial and is onto the government’s shenanigans.
This is his assessment:
“Although this landmark trial is about people suffering and perhaps even dying on medical wait lists because of provincial law, there is certainly no urgency [from the government lawyers] to this case.
“The strategy of the government defendants has become evident — to drag it out, knowing that appeals of Steeves’s ultimate ruling will take years and any negative findings then diminished as involving an ‘historic’ situation.”
Mr. Mulgrew is probably right that the BC government lawyers think that delaying the case is in their interest. But I wonder if there isn't a more sinister motive: the government has unlimited resources, while the patient plaintiffs’ constitutional challenge is being financed solely by donations from ordinary, concerned Canadians like you.
While the government must have spent millions of dollars already (we don’t know the exact amount, because they won’t say, though we’ve filed a Freedom of Information request) fighting to defend long wait lists and to restrict patient choice, they are bleeding the plaintiffs’ financial resources dry. Plaintiffs’ lawyers are usually outnumbered at least 5 to 1 in the courtroom, and sometimes as much as 10 to 1.
This is not only unjust, it is a profound threat to the ability of ordinary Canadians to hold the government accountable for violations of our Charter rights. The government of British Columbia is, in effect, sending a message to citizens: don’t bother standing up for your rights: we will drown you in procedure and then bury you with costs.
Who in their right mind would launch a constitutional challenge that could take seven years before it even gets to trial and then costs millions of dollars once it finally does?
Meanwhile, patients continue to suffer acute pain, psychological trauma, and financial loss as they wait for months or years for necessary medical treatment.
I apologize if I sound more than usually frustrated, but the government’s tactics are now really straining the bounds of professionalism and have far surpassed the limits of my patience.
Nevertheless, we at the CCF are so, so grateful for your support in standing up for the rights of patients. Even with the generous help of so many supporters, this case is a real financial strain and some days it is hard to see how we will be able to see it through to the end. But, without your help, it would be absolutely impossible. We wouldn’t even be in court today.
Click here for the most recent witness list from counsel, so you can have a sense of what is upcoming in the trial. Of particular note, you will see that BC’s Minister of Health, Terry Lake, is scheduled to testify in late February. I would caution, however, that the schedule is provisional and contingent on resolving these seemingly endless motions and challenges by the government.
Nothing has been easy in this case, and we don’t expect it to get any easier anytime soon. But we're not about to back down. Not an inch! With your support we will continue to stand up and defend the constitutional rights of patients!
Thank you for your patience and for your support. Until next time!
Canadian Constitution Foundation