Decontextualized Rights: Concerns Regarding the Bedford Section 7 Framework in the Health Care Context of the Cambie Surgery Center Trial

• Author: Kathryn Costain
• Position: Is a second-year JD candidate at the University of Victoria Faculty of Law
• Pages: 3-23

APPEAL VOLUME 22

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ARTICLE

DECONTEXTUALIZED RIGHTS:

CONCERNS REGARDING THE BEDFORD

SECTION 7 FRAMEWORK IN THE HEALTH

CARE CONTEXT OF THE CAMBIE SURGERY

CENTER TRIAL

Kathryn Costain*

CITED: (2017) 22 Appeal 3

INTRODUCTION...................................................4

I. CONTEXT ......................................................7

A. e Canadian Health Care Context..................................7

B. e Litigation Context............................................8

C. e Present Case ................................................9

II. CHARTER ANALYSIS.............................................11

A. Section 7 and the Bedford Framework ...............................11

B. Engaging Life and Security of the Person Interests . . . . . . . . . . . . . . . . . . . . . .12

C. e Principles of Fundamental Justice ...............................13

D. Section 1: Justifying an Infringement ................................18

III. ISOLATING THE INDIVIDUAL: FURTHER REFLECTIONS ON THE

BEDFORD FRAMEWORK ........................................21

CONCLUSION ....................................................23

* Kathryn Costain is a se cond-year JD candidate at the Universit y of Victoria Faculty of Law. She

originally wrote this pape r for an Advanced Constitutional Law se minar course and sincerely

thanks Professor Donna G reschner for her guidance and suppo rt.

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APPEAL VOLUME 22

INTRODUCTION

Cambie Surgery Centre , the Specialist R eferral Clinic , and four individua l patients

[hereafter “Cambie et a l.”] are challengin g the constitutionalit y of sections 14, 17,

18, and 45 of British Columbia’s Medicare Protection Act.1 is case went to tria l in

the BC Supreme Court on September 6, 2016, and the trial i s ongoing at the time of

publication.2 S ection 14 forces doctors to opt in or out of the public billing system,

rather than a llowing them to concurrently oer services b oth privately and in the public

system. Sections 17 and 18 place limits on bill ing extra for services classi ed as a benet

under the BC Medical Ser vices Plan, t his limits the a mount that enrolled doctors and

clinics ca n charge for serv ices. Section 45 voids private insura nce contracts for ser vices

that are clas sied as benets under t he provincial medica l services pla n, making t he

cost of private health ca re an eective deterrent for most patients. Taken together, these

provisions limit the ability of doc tors to provide private health care for ser vices that are

considered medically ne cessary and included in the public health s ystem, while limiting

patients’ ability to acce ss those servic es. A concurrent private health c are system is not

prohibited, but it is made less viable by these provisions.

e plaintis’ prima ry claim is made u nder section 7 of the Canadian Char ter of Rights and

Freedoms (“the Char ter”). Section 7 protects the r ight to life, libert y, and security of the

person and the right not to be deprived thereof e xcept in accordance w ith the principles

of fundamental jus tice.3 e plainti s claim that t he aforementioned provisions of the

Medicare Protection Act infringe the sect ion 7 Charter rights of patients by eectively

forcing them to remain on long waiti ng lists for services in the public healt h care system

and that the subsequent delay in rec eiving treatment causes them to endure physica l and

psychological su ering, at times incre asing their risk of de ath.4 is claim i s grounded

in the belief that if t he provisions were not in place, these pat ients might have been

able to obtain private health in surance and rec eive treatment much sooner at a private

clinic such as the C ambie Surgery Centre. e pres ent claim brought by Cambie et a l.

follows the 20 05 Chaoulli decision, which also challenged prov incial legislation t hat

restricted the development of a concurrent privately-fu nded health sector.5 e Supreme

Court of Canad a held that the legislation challenged i n Chaoulli violated patients’ rights.

However, this decision was made under t he Quebec Charter and thus, the decision was

not binding outside of Quebec.6 Cambie et a l. now hopes to have this pronouncement

extended to the rest of Can ada through a decision made under the Can adian Charter.7 If

the plaintis in t he present case are successf ul, the eects of the decision will have a more

signicant impac t than Chaouilli, because it will be applicable across C anada.

1 Medicare Protection Act, RSBC 1996, c. 286.

2 I will refer to the present case brought by Cambie e t al. as Cambie for simplicity. An ocial case

name was not released at the tim e of publication.

3 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act , 1982, being Schedule B

to the Canada Act 1982 (UK), 1982, c. 11, s. 7.

4 Cambie Surgeries Corporation, et al. v The Medical Services Comm ission, et al. Fourth Amended

Notice of Civil Claim. No. S090 663, Vancouver Registry, March 14, 2016, at para 92 [Notice

of Claim], online: /d3n8a8pro7vhmx.cloudfront.net/bchealthcoalition/pages/234/

attachments/original/1472934222/2016_03_14_Fourth_Amended_Notice_of_Civil_Claim .

pdf?1472934222> archived at < https://perma.cc/G3FK-UKKT>.

5 Chaoulli v Quebec (AG), 2005 SCC 35, at para 18, 23 [Chaoulli].

6 Ibid, at para 101; Char ter of Human Rights and Freedoms, CQLR c C-12, s.1.

7 Cambie Surgeries Corporation, et al. v The Medical Services Comm ission, et al. Opening

Statement of the Plaintis. No. S0 90663, Vancouver Registry, Septemb er 6, 2016, online:

7vhmx.cloudfront.net/b chealthcoalition/pages/234/attachments/

original/1473905437/2016_09_06-Opening-Statement-of-the-Plaintis.pdf?1473905437>

archived at .