The process has exposed the inability of the courts to fulfill their constitutional function as a brake on controversial laws.
The marathon medicare trial has lurched back to life and plans to sail past its fourth anniversary of somnolent proceedings with a hearty, “Not dead yet!”
After another languorous winter holiday, B.C. Supreme Court Justice John Steeves and the flock of lawyers decided this month that the plaintiffs will try to finish their case by the end of March — maybe, better add a week to make sure.
“Given our history, I’m thinking April 8,” Steeves suggested for the intervenors to begin their defence of the status quo.
No need to rush, the justice said he needs to first ensure everything gets done.
There are five outstanding applications he must rule on, continuing sour objections.
In early March, for instance, he’ll hear the government’s objections to a children’s spine surgeon testifying that someone at Children’s Hospital manipulated wait times.
“Frankly, I’m not about to let you close until all that is done,” Steeves told the representative patients and private clinics challenging the Medicare Protection Act’s prohibitions on access to private care.
They have been frustrated for a decade, hampered by government intransigence on disclosure, incessant legal wrangling about witnesses, debates about the use of expert opinion and money troubles.
When the intervenors and the federal government finish, the province will offer its defence, likely not until fall; afterward, Steeves will deliberate.
He might start by the end of this year, but who knows how long he will require given the staggering scope of the record and evidence.
No speed-reader could pass his or her eyes over the stacks of reports, research, data, opinion, analysis and outright cant that has been entered as evidence — for a period, 3,000 documents a week were being turned over electronically every fortnight or so, tens and tens of thousands of documents.
There is such a library, a government clerk worked for four years to compile it.
A decision is not expected until early next year at best.
This litigation commenced in 2009 and a trial was scheduled for 2015, but that date was adjourned and there was a further adjournment.
It finally commenced on Sept. 6, 2016, and has ever since lurched along like the living dead with nearly 135 days of sittings so far.
With dozens of interim rulings and occasional forays up to the B.C. Court of Appeal, the process has exposed the inability of the courts to fulfill their constitutional function as a brake on controversial laws.
Let’s not even think about how long appeals might take.
It was obvious the proceedings were doomed — even government lawyers a year ago compared it to the legendary Flying Dutchman and the eternal voyage of the damned.
The entire affair is a monument to the dysfunction of the legal system and the inability of citizens to hold government accountable.
Victoria has tried every trick in the book from attempting to beggar the plaintiffs to launching legal objections at every turn and even changing the law to derail their challenge.
The NDP administration tried to neuter the challenge by clamping down on the clinics with a bit of legislative legerdemain, but the court issued an injunction preventing that draconian move.
The clinics successfully argued that enforcing the impugned provisions would force them to close and have deleterious repercussions.
Without the 56 private facilities that began to open at the end of the last century, most of the services they provide would have to be accommodated by the already choked public system — exacerbating historically long waiting lists as well as pain and suffering.
Closing the private facilities, which relieve pressure on the public system, would also jeopardize the resulting savings and better utilization of public operating rooms.
Although the province was denied leave to appeal the injunction by Appeal Justice Mary Newbury — who told both sides to quit bickering and get the trial finished — it is considering an appeal of her decision.
Regardless, the injunction must be extended anyway when the trial blows through the order’s tentative June 1 expiration date … and you can expect another catfight then.
This mean-spirited litigation and these costly interminable proceedings are unbelievable, given the seriousness of the constitutional rights in play.
The concern is about constraints on private medical care and private insurance to pay for it while waiting lists for public care are perniciously long — something directly affecting the lives and health of every British Columbian.
In 2005, the Supreme Court of Canada ruled in a Quebec case on precisely these issues and explained how to parse them.
This case should have involved little more than an application of the high court’s reasoning.
Aside from the pain and suffering — and probable death — the years of dithering have caused, taxpayers have been taken for an exorbitant ride.
Last year, the Canadian Constitution Foundation, which supports the plaintiffs, filed a freedom-of-information request asking how much the government has spent.
Victoria stonewalled, saying that’s privileged and an attempt to gain advantage in the litigation.
On Aug. 14, the B.C. Office of the Information and Privacy Commissioner ordered the cost produced by Sept. 26.
Fat chance. Open and transparent government? LOL.
On Sept. 25, the government filed a petition to have the order quashed.
This entire process is an expensive, ongoing mockery of timely, efficient justice and open, transparent governance. The rule of law?
“I hope we can finish this whole thing within a year,” Dr. Brian Day, who is leading the litigation, said. “Not holding my breath.”
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