November 16, 2018
BC goes to court to hide costs of landmark healthcare trial from the public
BC really doesn’t want you to know how much the government has spent since 2009 fighting against patients suffering on waitlists who want their Charter right to timely treatment. Since 2009, the BC Government has been litigating against patient plaintiffs who have suffered as a result of rationed healthcare and who have benefited from services offered by private clinics, like the Cambie Surgery Centre, which have operated in BC for more than two decades.
Last year, the Canadian Constitution Foundation (CCF), which is supporting the plaintiffs’ Charter challenge, filed a request under BC’s Freedom of Information and Protection of Privacy Act (FIPPA), asking the BC Government to come clean on just how much public money it has spent so far fighting to deny patients their right to timely healthcare treatment.
At first BC stonewalled. They acknowledged that they knew the number, but they refused to provide it. They alleged that somehow we were seeking to gain an advantage in the litigation, which they argued could be gleaned from knowing how much they had spent on the case since it started eight years earlier. This was preposterous. As we made clear over and over again, the CCF was not looking for any solicitor-client privileged communication. We sought only disclosure of “the total sum spent by the BC Government on the Cambie case from 2009 to 2017” and “[did] not seek to have that total global figure broken down by service provider, by year, by hourly rates, or in any other way.”
So we persisted.
And on August 14, 2018, the BC Office of the Information and Privacy Commissioner sided with us and ordered that, “pursuant to s. 58 of FIPPA I require the Ministry [of the Attorney General] to give the applicant access to the total cost of litigation contained in the record by September 26, 2018.”
For more than a month we heard nothing from the Government. Finally, on September 25, 2018, the day before they would have to disclose how much taxpayer money that had spent on the case, the BC Government filed a petition in the BC Supreme Court to have the Information Commissioner’s order quashed.
Last week, we filed our response, clarifying once more that all we are seeking is one number – one single number, representing the amount of taxpayer dollars the BC Government has spent so far litigating against patients who just want to exercise their constitutional right to access timely healthcare – a number the BC Government admits it has, but refuses to make public.
CCF Staff Lawyer Derek From said:
A central stated purpose of the Freedom of Information and Protection of Privacy Act is to “make public bodies more accountable to the public ... by ... giving the public a right of access to records”. Patients suffering on waiting lists are taxpayers, and the Government is using their money to fight to limit their healthcare choices. So why aren’t they allowed to know how much? Why is the Government fighting so hard – and expending even more tax dollars doing so – to keep the public in the dark about the millions of dollars it is spending to fight patient choice?
November 7, 2018
It's wrong to deny suffering patients access to treatment when current system is failing them
- "B.C. government unethical to deny patients the right to buy private care when public system fails to address their suffering" by Dr. Derryck Smith in the Vancouver Sun
- "The future of our health care is being decided in the courts" by Conrad Black in the National Post
October 5, 2017
Two Updates today!
1. Guess how much the BC government has spent fighting against healthcare choice!
No really, you'll have to guess, because the Government won't tell us! And now they are going to court to fight an order from BC's Office of the Information and Privacy Commissioner requiring the Government to tell us.
For almost two years, the CCF has been trying to find out how much the BC government has spent fighting to deny our patient plaintiffs healthcare choice and to shut down Dr. Day's Cambie Surgery Centre, which has been relieving patient suffering in BC for more than 20 years. While the CCF has been quite open about the increasing costs our side has faced (largely due to the Government's delay tactics), the government has been unwilling to divulge how much it has spent to deny patients suffering on waiting lists their Charter right to security of the person.
After our request for an accounting of taxpayer money spent on the case was rejected by the Ministry of the Attorney General, we pursued an appeal through BC's freedom of information laws. In August, the freedom of information adjudicator concluded that "the Interim total cost was not subject to solicitor-client privilege" and ordered the Government to disclose the cost of litigation -- just a single number, which the Government has admitted it has -- by September 26. Instead of handing over this number -- note, we did not ask for any confidential records, only a single number representing to the total cost of litigating against our plaintiffs -- the Government of BC is now spending even more tax dollars seeking judicial review of the adjudicator's order.
Read more in Business Vancouver.
And to help us uncover what the Government is hiding, please donate here.
2. BC Government backs down ... for now, and won't penalize doctors helping suffering patients
Under pressure, the Government of BC has agreed not to impose stiff new penalties on doctors and private clinics helping thousands of BC patients receive timely care until after the court has ruled on our application for an injunction against these penalties. This means hundreds of procedures will not have to be cancelled as of October 1, which is excellent news for patients wondering if they would be thrust back into the limbo of growing waiting lists. It will also likely save the provincial health budget millions of dollars as it preserves ... for now ... the "escape valve" that these private clinics have provided suffering patients in BC for decades. If only the government recognized that the logic behind this temporary agreement should compel them to stop fighting BC's private clinics and embrace their benefits for patients and the healthcare system.
Read more in the Vancouver Sun.
September 26, 2018
Update: Cambie Surgeries Injunction Hearing
In case you missed it, this story by Ian Mulgrew in the Vancouver Sun is a good account of the first day of hearings on the application for an injunction against the enforcement of draconian new financial penalties on doctors and clinics providing vital private services after October 1.
There is a high bar for granting an injunction, so counsel has a difficult task ahead persuading the court to step in and prevent the new penalties form coming into force. Whatever the court rules, the main case will continue to hear evidence and we are confident of eventual victory in that fight.
If you are able to support the injunction application and the main case, please consider doing so here.
September 19, 2018
Dr. Brian Day finally gets his day in court ... and the government still tried to silence him
After literally a decade of litigation, Dr. Brian Day finally got his day in court. He took the stand on Monday in the long-running Charter challenge brought by the Cambie Surgery Centre, which Dr. Day founded, and four patient plaintiffs who have been affected by delays and waiting lists in the B.C. healthcare system.
It did not go well for the government, whose lawyers spent most of the time complaining about Dr. Day’s extensive and detailed descriptions of the failures of the rationed healthcare system and the lives saved and improved by access to timely medical treatment at his clinic. Although Dr. Day was originally scheduled for five days of cross-examination by the government, but after Monday, it is likely the government will cut their time short. Every hour he’s on the stand hurts their case.
Read more in Ian Mulgrew's latest article.
To read Dr. Day’s affidavit, on which he is being cross-examined, see here.
More updates to come!
September 5, 2018
Dear friend and supporter!
After a relatively quiet summer, I wanted to provide you with an update on our Charter challenge on behalf of patients suffering on growing healthcare waiting lists.
The good news is that after the summer recess, the Cambie healthcare case is back and moving forward (hopefully rapidly!) on multiple fronts.
First, an application for an injunction against the government's new penalties targeting doctors and clinics who serve patients privately will be heard on September 24, 25 and 26. There will also be separate hearings on behalf of private imaging clinics later in October.
On a separate track, the main case will be back in the courtroom, with more witnesses scheduled to be heard this month. Our goal is still to complete our presentation of evidence this fall, despite continued government obstruction. Some highlights to look forward to include the long-awaited testimony of Dr. Brian Day, which is currently scheduled for the week of September 17th (subject to change, as everything is in this case ...).
We are looking into getting copies of the transcripts of key testimony to share with you later this month.
In other words, the government keeps throwing up new hurdles and we have to keep clearing them, finding ways around them, or knocking them over!
We remain committed to supporting our lawyers, who have taken on an enormous financial and time burden in the face of unprecedented delays and questionable litigation tactics by the government.
Without their sacrifice, we wouldn't still be in court fighting for the rights of patents suffering on waiting lists.
And without your support, we wouldn't be able to support them!
Please consider a further donation to this case and to cause of real patient choice as we enter the home stretch!
Canadian Constitution Foundation
July 27, 2018
Sworn statements from the Cambie case
Sworn affidavits introduced in this case are full of illuminating quotes and evidence, including from former Premier Gordon Campbell, who has shared with the court his experience with the political side of healthcare systems.
Mr Campbell said:
“I learned from this visit that all of these countries had hybrid health care systems that incorporated elements of private care and funding, and delivered better public health care at a lower cost than British Columbia and the rest of Canada … a hybrid health care system would cause no harm to the public health care system in B.C., while providing benefits to many British Columbians …”
Read Ian Mulgrew's coverage on this affidavit here. You can also read both Mr. Campbell's affidavit and Dr. Brian Day's affidavit, in full, at the following links:
July 13, 2018
Even BC's former premier believes more private access will improve health outcomes
Today we would like to share with you a recent article by the Star Vancouver discussing an affidavit made by former BC Premier Gordon Campbell.
In the sworn statement he says:
“Private diagnostic services and surgeries would cause no harm to the public system,”
“It would also result in more medical treatments being provided to British Columbians … while conserving capital and operational costs in the public system. It would also increase patient choice."
Read the full article here.
July 9, 2018
Injunction filed in Cambie Surgery Centre case: a showdown in the fight for patient choice!
On Friday, counsel in our historic BC healthcare choice case filed an injunction against the BC Government, seeking to stop the enforcement of new financial penalties that the government has threatened to impose on doctors who treat patients looking for treatment options other than languishing on growing wait lists.
The full filing can be found here.
Why this is important:
For more than 20 years, BC patients have had the choice to go to one of several private clinics to seek treatment, rather than wait in pain for months or years.
But now the new BC Government has announced that, for the first time, starting on October 1, doctors working at private clinics, including those working at private clinics providing medical imaging, such as MRIs and CT scans, will be subject to crippling financial penalties, effectively cutting off patients’ timely access to these services.
This is why we are supporting this critical injunction: if we win, it will preserve the status quo – a status quo that for more than two decades has helped tens of thousands of Canadians get treatment and get back to work faster – pending the final outcome of the Charter challenge for patient choice.
As counsel writes in the factum asking for the injunction (it’s long, but I encourage you to read it, as it’s a compelling description of the essence of the entire case!):
“British Columbians have come to expect and rely on access to private medical care to protect their health care needs, given the extent of harm caused by the rationing of health care services in the public system.
The Government’s wait time data shows that the public health care system is not even close to meeting the Government’s own maximum acceptable wait times for the provision of medically-necessary surgeries.
The health care of British Columbians depends on the continued ability to access private medical care.”
Our patient plaintiffs are fighting simply for the right to take control of their own health care – a right that citizens of every other developed country, from the U.K. to Australia, from Sweden to Switzerland, have – and which the Canadian Supreme Court has held is a right here in Canada too.
That is why we are supporting these patients’ fight for their Charter rights to life and security of the person.
And whether we win or lose this battle for an injunction, we will keep fighting the war for patient choice until those Charter rights are recognized as a reality for all Canadians.
Please show your support for our patient plaintiffs by donating today!
July 5, 2018
Ian Mulgrew: What the Dickens is going on with medicare?
We hope to have a new update to share on the court proceedings very soon, in the meantime, check out Ian Mulgrew's latest article featured in the Vancouver Sun.
In Mulgrew's latest, he includes the bizarre and frustrating story of a BC man who injured both his knees in different accidents and the very different experiences he had in getting each knee looked after. This story is now being heard at the B.C. Supreme Court in the Cambie clinic case as an example of the inequitable restrictions to accessing private care
May 11, 2018
We agree with the Globe & Mail on healthcare!
Friends and supporters,
I wanted to draw your attention to an excellent column from Gary Mason in the Globe & Mail about our healthcare freedom case. This article not only highlights the Crown lawyers' endless delay tactics during the trial, but the piece also goes over some of the frightening records showing how many British Columbians are left on waiting lists beyond the government's own recommended timelines for treatment.
By way of update, the case is continuing both in court and behind the scenes as counsel presents evidence of the harms of the status quo. Counsel is also preparing arguments against the coming-into-force of new penalties against doctors and private clinics serving suffering patients.
Help us promote this case by sharing links to YourHealthCantWait.ca on Twitter and Facebook.
April 17, 2018
Comparing Canada’s healthcare systems to its international peers
Earlier this year, the respected and non-partisan C.D. Howe Institute combined data on our provincial healthcare systems with data from the international think tank, the Commonwealth Fund, to show how not just Canada overall, but each of our provinces individually, lags behind our peers like the UK and Australia when it comes to healthcare. Of note, each of those peer countries (like every other developed country except Canada) has a complementary public-private healthcare system.
The full report is available here.
I would draw your attention to the graph on the top right of page 6, which highlights our abysmal national record on "timeliness", where we place dead and distant last. Our wait list problem means tens of thousands of individual patients suffering while they are denied timely access to healthcare. It should be a national outrage.
November 16, 2017
Cambie Healthcare Freedom case update
It’s been a while since we had news to update you with in this landmark constitutional case, but today we do. After several months hiatus, lawyers were back in court to respond to a long list of challenges by the Crown to evidence we intend to present in the next phase of the trial.
Among other things, the Crown wants to limit almost entirely the proposed testimony of Dr. Brian Day, founder of the Cambie Surgery Centre, former President of the Canadian Medical Association, and the most experienced and knowledgeable practitioner in the country when it comes to the realities of running a private medical clinic in Canada.
After approximately two weeks of court argument, counsel for the patient plaintiffs and the Cambie Surgery Centre filed a 250-page response to the Crown’s objections. Download and view this (long!) document so you can get a feel for what our lawyers have been dealing with. The judge will take some time to consider the issues and we expect a decision after Christmas, with the trial proper to resume (we hope!) in February.
While the Crown’s ongoing strategy of needlessly drawing out the case through objections and delays continues to be frustrating, we are determined not to let them win a war of attrition. We continue to raise funds to pay for the ever-increasing costs imposed by these delays and look forward to resuming the actual submission of evidence through witnesses and affidavits in the New Year.
We are not intimidated by the Crown’s tactics, which are, to be kind, highly questionable in a Charter challenge of this kind. Most public interest litigation trials take a few months, whereas here the Crown may succeed in drawing proceedings out for two years. We would hope that the Crown would drop its unnecessary objections and consent to relevant evidence being submitted, so that the judge can get on with his job of applying the Charter to the facts. But if the Government insists on dragging out this fight, we are prepared to stand toe to toe with them. We aren’t backing down.
We will also continue to draw attention to the ongoing constitutional violations of patients’ rights. As the Crown dithers and delays, Canadians are suffering on growing wait lists with no meaningful choice or alternative. The sooner the Government realizes that it can’t stop suffering patients from taking control of their own bodies and their own healthcare, the sooner we will have a system with real patient choice, like every one of our peer countries from Australia to the U.K., from New Zealand to Sweden.
Thank you for recognizing the importance of this case and for your continued support. Please consider making a year-end charitable donation to the CCF to support this case – and/or a new donation in the new year!
July 17, 2017
Canada ranks third-last in study of health care in 11 rich countries
In case you missed it, the Commonwealth Fund released its latest rankings and in-depth analysis of developed countries' healthcare systems. The good news, Canada moved up one spot this year! The bad news ... that means we are now 3rd last among our peers, up from 2nd last in 2014.
Crucially, we remain dead last in terms of timely care. (Check out Appendix 1 on p.18 or the chart on Timeliness on p.21 --we're so far behind, it's not even close!). Waiting times means patient suffering, and it is that suffering that the CCF is targeting in the BC case for patient choice. Forcing patients to suffer without options for care is a violation of the Charter right to "security of the person."
That's why we are in court fighting for the same sort of patient choice and healthcare freedom that citizens of every country that ranked above Canada -- from the UK to Australia -- enjoy.
- Globe & Mail Story: Canada ranks third-last in study of health care in 11 rich countries
- Report: International Comparison Reflects Flaws and Opportunities for Better U.S. Health Care
July 5, 2017
Dr. Brian Day on the strong public health system we could have
I am excited to share with you this interview of Dr. Brian Day by the Vancouver Sun, explaining why our fight for patient choice is so important to Canadians suffering on long and growing wait lists for surgeries.
It is a travesty -- not to mention a clear violation of the Charter right to security of the person -- to force suffering patients to wait months or years for treatments while some operating rooms are closed and doctors sit idle in the public system.
Listen to Dr. Day, who has been fighting for the constitutional rights of patients for more than a decade, explain why this case is so important here.
Please share this important video via Facebook, Twitter, or email!
May 2, 2017
Great Canadian Debate: Dr. Brian Day and Ujjal Dosanjh debate healthcare
I wanted to alert you to this evening's debate between Dr. Brian Day and former BC Premier and federal Minister of Health Ujjal Dosanjh in Ottawa. The debate is part of the Macdonald-Laurier Institute's Great Canadian Debate series.
The topic to be resolved is: "Our broken healthcare system is infringing on the rights of Canadians."
You can listen to a preview of the debate on CBC’s Ottawa Morning.
It will be broadcast live tonight on CPAC at 7:00pm EST.
You can stream this debate through CPAC's website here. (Check the Live section in top navigation bar at 7:00 PM EST).
April 28, 2017
Horror stories from overcrowded hospitals creating new breed of patient activist via Canadian Press
Jamie-Lee Ball doesn't plan to quietly let her nightmarish five days in the hallways of the Brampton Civic Hospital fade from public attention.
The 25-year-old is taking her place at the vanguard of a new movement among patients, hoping to draw attention to hospital overcrowding across Canada.
Like others who've gone public to describe indignities suffered in crowded hospitals this year, Ball is becoming an activist — starting petitions, complaining to Ontario's patient ombudsman, and pressuring politicians for improvements....
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