Last year, when the Supreme Court of Canada declined to hear what should have been a landmark case on health care, it further entrenched legal uncertainty and Canadians’ unequal access to medical aid depending on where they live.
With silence from the country’s top court, the last major legal judgment on health care belongs to the Court of Appeal in British Columbia. B.C.’s top court in 2022 upheld a 2020 lower court ruling that found the province’s Medicare Protection Act to be constitutionally sound. Cambie Surgeries had sought to legalize charging higher rates to patients and allowing private insurance for “medically necessary services” covered by public insurance.
One of the three justices, however, had misgivings. In concurring reasons that agreed with the main judgment, the judge wrote: “the conclusion we are compelled to reach is far from a satisfactory one.” The judge’s final words should echo across the country: the law was being “upheld at the cost of real hardship and suffering to many for whom the public system is failing to provide timely necessary care.”
Timely is the key word. It encapsulates what has long been wrong with health care in Canada. There is universal public health insurance but as then chief justice Beverley McLachlin wrote in Chaoulli, a 2005 Supreme Court ruling: “Access to a waiting list is not access to health care.”
That 2005 ruling could have been definitive but applied only in Quebec. It centred on a long wait for hip surgery. The Supreme Court ruled 4-3 that the Quebec law that disallowed private health insurance violated the province’s Charter of Human Rights. Whether it also violated Canada’s Charter of Rights was left unsettled in a bizarre 3-3 tie. One justice declined to offer a view, deeming it “not necessary.”
Thereafter, a lot and not much happened. Many more billions of dollars have been poured into health care. Wait lists – news flash – are still a huge problem. Quebec allows private insurance for a small selection of private health care and privately paid health care there is growing.
Across Canada, there is a mishmash of different rules. Private care isn’t banned but private insurance is outside of Quebec for services categorized as medically necessary.
An unhealthy debate
This is part of a series on our health-care system, and the challenges in diagnosing and fixing its problems, as explored in The Globe’s Secret Canada project.
Broken promises: The ‘universal’ model is anything but
Data: Lack of clarity is unacceptable
Lessons from abroad: Health care, Australian-style
Lessons from the past: Jane Philpott’s prescription for change
Accountability: What patient power can achieve
Amid this confusion, the Supreme Court last year said no to a proposed appeal of the B.C. case. That was a mistake. The court gave no reasons, as per its tradition. Not granting leave to appeal suggests an absence of important legal questions, which does not seem to be the situation on this file.
One example is the continuing legal complexity around Charter of Rights arguments on health care. The Charter’s Section 7 talks of individuals, security of the person, limited by the vaguely stated “fundamental justice.” Section 1 thinks of society as a whole and cites “reasonable” limits on individual freedoms. In health care and the law, it’s led to varying judicial opinions and, as one B.C. appeals court judge suggested, unsatisfactory conclusions.
There are two obvious ways to crack through the confusion and let the light get in. First, politics. Courts have settled big political questions before but there is a role for the federal government. It should make a small yet big change to the Canada Health Act, which was unanimously passed by the House of Commons in 1984. The law prescribes five pillars, including universality. A sixth must be added: timely access. It is time to remedy this absence, in a country where, for one example, provinces such as B.C. have recently sent people with cancer to the United States for treatment.
Second, the courts. The B.C. case was more sprawling than Chaoulli. It aimed broadly at medicare. It could be said the Canada Health Act is functioning well, even if the same cannot be said of the health care system. Given the extensive court record in B.C. – the 2020 ruling was upwards of 170,000 words – the Supreme Court perhaps was satisfied all is sound.
But Ottawa shouldn’t be. It can push to settle questions of law by putting a reference case to the Supreme Court. In the early 2000s, as same-sex marriage was legalized in some provinces but not others, Ottawa sent proposed legislation in a reference case to the top court. The country got an answer.
The same clarity would illuminate the duty of governments: timely access to health care for all Canadians.