B.C. medicare ruling clashes with 2005 Supreme Court decision Quebec can't ban health insurance

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In B.C. Thursday, a trial judge rejected a request to overturn certain of the province’s medicare rules including a ban on private health insurance saying the laws fully complied with the Charter of Rights and Freedoms. Justice John Steeves’ mammoth, 800-page judgment was quickly hailed by supporters of public health care as a huge win for the current system.

But 15 years ago, the Supreme Court of Canada struck down Quebec’s similar prohibition against private insurance, a slim majority saying it breached either the Charter or a Quebec rights law. The British Columbia case may well itself be headed to the Supreme Court, after the province’s court of appeal takes a stab at it first. But with a whole new slate of members on the top court, and controversy around that earlier judgment, it’s far from certain how the judges would rule this time.

The losing side headed by private surgery guru Dr. Brian Day has vowed to appeal Thursday’s decision in B.C. And one of his backers says the new ruling is out of line with the high court’s 2005 Chaoulli decision on private health care in Quebec.

Joanna Baron of the Canadian Constitution Foundation said, It’s extremely difficult to square. The court in Chaoulli found that very similar legislation, which prevented patients from seeking private insurance … violated the Charter’s section seven.

But Martha Blackman, a University of Ottawa law professor who represented two pro-medicare interveners in the Chaoulli case, said the ruling should not be an obstacle. Not least because the Supreme Court of Canada’s decision was universally condemned by legal scholars and health economists.

Blackman said, this court, I can’t imagine they are not aware of the scholarly and health-policy critique of what four of seven judges did in Chaoulli. It was such a split judgment and it was so heavily criticized.

Both experts agree that, while it does not happen frequently, the Supreme Court can reverse its previous constitutional precedents. The B.C. case revolved around laws that ban private health insurance, and prevent doctors from charging patients on top of what they receive from the province for medically necessary services. Day’s Cambie Surgeries clinic and other plaintiffs asserted that the rules breach the Charter of Rights when the public system is backlogged with long wait lists, something they said is common.

Most of the decision dealt with the Charter’s section 7, which says governments cannot deprive people of life, liberty or security of the person except according to the principles of fundamental justice. Steeves ruled that patients are harmed by waiting lists, but not contrary to fundamental justice.

He said, doing away with the laws would undermine the public system and its ability to deliver health care according to need, not ability to pay.

The Chaoulli case, named after a Quebec doctor barred from setting up a private hospital, dealt solely with the province’s ban on private health insurance not the extra-billing question. The Supreme Court toppled the law, after a trial judge and Quebec appeal court had upheld it.

Reasons co-authored by then-Chief Justice Beverley McLachlin said, given the prohibition (on insurance), most Quebeckers have no choice but to accept any delays in the public health regime . The evidence in this case shows that delays in the public health care system are widespread and that, in some serious cases, patients die as a result.

Three of the seven judges said the insurance ban violated section-7 of the Charter, while one just said it breached a similar section of the Quebec bill of rights and declined to deal with the Charter. Three judges dissented, which meant there was a three three tie on the Charter question, and the ruling was not binding on the rest of Canada.

Blackman goes further, and argues that the Supreme Court ignored evidence from the trial that suggested allowing private insurance would harm public health care. Quebec brought in legislation in the wake of the ruling that did allow private insurance, but only for a limited range of services. A private insurance market never materialized. Meanwhile, both sides argue that later Charter decisions from the Supreme Court bolster their cases.

Baron. said, the Carter judgement legalizing doctor assisted death, the Bedford ruling striking down some prostitution laws, and the Insite decision requiring the federal government to renew permits for supervised drug-injection sites, all stand for the same principle: that the government cannot undermine measures that help protect people

Blackman said, the Insite decision, by looking generally at the programs benefits to public health and drug addiction and not just at the rights of individuals, back up the B.C. judge’s approach to the medicare question.