In previous landmark cases, courts have determined that this means laws cannot be arbitrary, vague, overbroad or grossly disproportionate. The BC Court of Appeal’s majority found that while the Medicare Protection Act may hurt and even kill patients, this is done with the noble purpose of preserving the public health care system, ie, is for the “greater good.” This, it found, meets the test of being in accordance with the principles of fundamental justice. There were no dissenting opinions.
Tea Cambia appeal decision did include a separate concurring judgment from Madam Justice Fenlon based on different reasons that have been rarely exercised in Canada’s courts. Justice Fenlon agreed with the majority that the BC law violated the right to life, liberty and security of patients. Unlike the majority, she held that the violations were not consistent with the principles of fundamental justice. Instead, she held that while the patients’ right to life, liberty and security were violated, these violations were justified limitations under section 1 of the Charter. This is the “balancing” clause which asks whether violations can be justified in a free and democratic society. This is only the second time a court has concluded that a section 7 infringement can be justified under section 1. The finding is, therefore, a landmark one and all the more reason for the Supreme Court of Canada to hear the appeal.
If the Cambia litigants are granted leave to appeal, the Supreme Court will be asked to grapple with the questions raised by both the majority and the competition. The Supreme Court must determine whether section 1 or the principles of fundamental justice can be invoked by a government to justify infringing the rights to life and security of the person of tens of thousands of BC patients. This infringement arises out of the BC government’s deliberate funding and management of the public health care system in a way that requires many patients to wait beyond a medically acceptable time for care. (If the situation is equally dire in the other provinces as in BC, then by involvement potentially another 200,000 such patients are similarly affected across Canada.)
Put at its simplest, the central issue in the appeal will be whether it is constitutional for the BC government to prevent patients from accessing necessary alternative health care when the public health care system does not provide care within medically acceptable times. More bluntly, whether it is acceptable in Canada for people to die waiting for government health care when private services could easily be provided that would keep them alive and, in many cases, healthy and living life to the full.
The litigants and their counsel believe their case is strong. First, consider the problems with the majority’s conclusion that although the Medicare Protection Act may result in patients dying, their death is consistent with the principles of fundamental justice. To an ordinary person, even uttering such words must sound obscene. Yet this was the finding by the BC Court of Appeal’s majority. The litigants consider this analysis to be inconsistent with the rights guaranteed in the Charter. Fundamental justice must be assessed in the context of the system’s failure to deliver timely care. The public health insurance scheme does not address or even contemplate unacceptable delays in accessing necessary health care.
The BC government attempted to justify the section 7 rights violations by relying on facts that are not immutable or external, but are things over which it has control and which themselves give rise to the failure. These include the government’s choices in staffing, funding and managing public health care delivery, while deliberately tolerating medically unacceptable delays. So while BC’s law itself might not appear to the court on its face to be arbitrary, vague, overbroad or grossly disproportionate, the litigants are of the view that its effects certainly are. Tea Cambia case thereby demonstrates the need for the courts to broaden the understanding of arbitrariness and gross disproportionality from strictly the language of a particular law to the law’s effects along with the related conditions created and controlled by the government.