Trial judges overturn the Supreme Court

One person can, and has overturned rulings of Canada’s Supreme Court. Not Prime Minister Harper although I’m sure he would like to. It’s the trial judges appointed by the prime minister that can.

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It may seem alarming but it’s nothing new. Appointees from Prime Minister Chrétien did. Whether it’s alarming or not depends on your point of view.

If you think that physician-assisted suicide is a good idea, you would have been pleased when lower court judge, Justice Lynn Smith, overturned an earlier Supreme Court ruling.

In 1993 the Supreme Court ruled against Sue Rodriguez in her bid to have access to physician-assisted suicide. Rodriguez was suffering a terminal illness that prevented from ending her ended her own life.

In 2012, Justice Smith overturned that ruling. She heard testimony from jurisdictions in the U.S. and Europe that allow assisted suicide, and concluded those laws are successful in protecting  the vulnerable from being pressured into accepting an unwanted death.

Justice Smith was appointed by the Chrétien government but she was no hack. Before being appointed, she was dean of the University of British Columbia law faculty and a founding director of the Women’s Legal Education and Action Fund.

Those aren’t the criteria our current PM uses. Unlike Chrétien, Harper has made it clear what he looks for in judges. Sean Fine, justice writer for the Globe and Mail puts it this way: “For nearly 10 years, the Conservative government has been seeking candidates it believed would defer to Parliament and not go out of their way to defend individual rights.”

If you think that a two-tier health care system is a bad idea, then you will worry about the ruling of a lone judge, yet to be chosen, who will hear the case of Dr. Day. He claims the constitution supports his extra-billing of patients. The Canada Health Act and the parallel equivalent B.C., the Public Health Act, prohibit extra billing.

The Supreme Court reference in Dr. Day’s claim would not affect all of Canada –yet. The 2005, Supreme Court ruling only affected Quebec’s Health Insurance Act. In the so-called Chaoulli decision, private health care was allowed under Quebec’s Act. Should Dr. Day’s claim be successful, however, it could have implications for all of Canada in a subsequent Supreme Court decision.

How can it be that the Supreme Court is not supreme? It turns out that in its wisdom the Supreme Court has ruled that it isn’t all powerful.  That’s because our Constitution is a “living tree,” capable of growth over time. Trial judges are to interpret the Constitution because society’s values change over time.

If this doesn’t seem to ring true, it’s because we are constantly reminded of the immutable U.S. Constitution, especially in the right to bear arms. Canada has no such tradition of “originalism:” we are not bound by the intent of the Charter’s framers.

My hope is that trial judges will feel the weight of Canada’s destiny on their shoulders. I trust that honourable judges will base decisions on the facts and not the machinations of malevolent politicians who would corrupt the judiciary to their own ends.

Fear Dr. Day

Supporters of health care held their collective breath last month as the votes were counted in the election for the president of Doctors of BC. This was a runoff vote; the first one ended in a tie.

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Dr. Alan Ruddiman, OPD Newsfeed

The candidates for president couldn’t have been more different in their vision for healthcare. Dr. Ruddiman wants to preserve our universal system in which patients are treated regardless of their ability to pay. His opponent, Dr. Day wants to set up a two-tier system in which wealthy patients buy treatment.

To the relief of everyone, Dr. Ruddiman won by a substantial margin although the turnout was only 50 per cent. Shortly after winning the physician from Oliver urged his colleagues to take a stand in defence of public health care. “It is fundamental that the medical profession take a firm stand for our publicly funded health care system (Globe and Mail, June 23, 2015)”

However, it’s too early to break out the champagne just yet. Dr. Day is determined undermine publicly funded health care and he doesn’t have to be president of Doctors of BC to do it. The B.C. Ministry of Health found that Dr. Day had been illegally charging patients. In one month alone, his Cambie Surgery Centre had billed patients $500,000.

Billing patients is illegal. The Medicare Protection Act of B.C., which parallels the Canada Health Act, states that the goals are to “preserve a publicly managed and fiscally sustainable health care system for British Columbia in which access to necessary medical care is based on need and not an individual’s ability to pay.

In retaliation to the audit from the B.C. Ministry of Health, Dr. Day launched a court case against the provincial government alleging that the Medical Protection Act violated his rights under the Canadian Charter of Rights and Freedoms.

In a warped sense of justice, Dr. Day sees himself a victim of a single-payer system. Wait times could be reduced, he argues, if patients were allowed to pay for treatment.

On first consideration, Dr. Day’s argument seems to make sense say Drs. Duncan Etches and Michael Klein. “At first glance, it might seem logical that allowing patients to pay privately at for-profit clinics would take paying patients off public wait lists, allowing others to move up the list faster (Monitor, a magazine from the Centre for Canadian Policy Alternatives, March, 2015).”

If it weren’t illegal, if there were an unlimited number of doctors, the argument might make sense. But there is a limited number of doctors. Because some surgeons work in both the private and public systems, for-profit clinics make surgeons unavailable in the public clinics; a phenomenon known as “crowding out” that can be seen in Quebec and Australia that have two-tier systems.

Also, private clinics skim off easier cases leaving difficult ones to the now underserved public system.

Even without the threat from Dr. Day, insidious corporate growth eats away at our healthcare says Dr. Ruddiman. “The threats of the corporatization of medicine and the barriers of layered administration that now exist in delivering efficient health care are a threat to the very ethos of medicine and indeed the profession.”