Medicare Protection Act constitutional, sentencing for contempt and drugs on appeal
This week on Legally Speaking with Michael Mulligan:
The British Columbia Medicare Protection Act purports attempts to protect Medicare by prohibiting any doctor from charging any more than what Medicare pays for any service that it covers and effectively prohibiting people from purchasing private insurance for any of these services.
These market interventions, combined with insufficient funding for Medicare, have resulted in the rationing of the services that are available by requiring people to wait for treatment.
While wealthy people can avoid waiting for treatment by traveling to the United States and paying privately, middle-class people are unable to purchase private health insurance and are forced to wait.
A constitutional challenge to the Medicare Protection Act was recently dismissed by the BC Court of Appeal despite evidence that even for the most serious category of medical conditions defined as “patients have severe pain or acute conditions, risk of permanent functional impairment, tumour/carcinoma/cancer/high risk of malignancy, or time sensitivity”, 72.2% were required to wait longer than the maximum acceptable wait time defined by the government.
The legal challenge was brought on the basis that the Medicare Protection Act violated patients’ constitutional right to life and security of the person.
Even though the BC Court of Appeal Judges accepted that some patients would die because of the Medicare Protection Act, they were at pains to point out that they did not have the authority to determine if the legislation was good public policy. They could only determine if the legislation was so harmful that it was unconstitutional.
As discussed on the show, the judges hearing the case concluded that while the legislation breached patients’ right to life and the security of the person, it did so in a constitutionally permissible way.
It’s likely that the case will proceed to the Supreme Court of Canada.
Also on the show, another member of the Rainforest Flying Squad was sentenced after being convicted of criminal contempt of court for blocking a logging road in violation of an injunction.
As there are more than 400 people being prosecuted for criminal contempt, the series of sentencing decisions that have resulted have afforded interesting insight into the factors to be considered in such cases.
In the case discussed on the show, the trial judge concluded that the fact the accused was convicted following a trial, rather than pleading guilty, was not a significant factor in sentencing.
In addition to the three days the accused had already spent in jail, he was sentenced to 12 months of probation, including 65 hours of community work service.
Finally, on the show, a BC Court of Appeal decision allowing an appeal from a 6-month jail sentence following a conviction for possession of a small quantity of drugs for the purpose of trafficking is discussed.
The trial judge had felt obliged to impose the jail sentence because of earlier Court of Appeal cases which had concluded that this should be the outcome absent exceptional circumstances.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am. It’s also available on Apple Podcasts or wherever you get your podcasts.
Automated transcript of the show:
Legally Speaking July 21, 2022
Adam Stirling [00:00:00] Time for Legally Speaking. Joined as always by Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael. How are we doing?
Michael T. Mulligan [00:00:08] Good morning. Always great to be here.
Adam Stirling [00:00:09] Lots on the agenda today. What’s up first?
Michael T. Mulligan [00:00:12] There sure is. Well, one of the first things on the edge or the first thing on the agenda, I should say, is a decision that came out recently from the B.C. Court of Appeal, dealing with a constitutional challenge to a provincial statute called the Medicare Protection Act. And it’s an important case which has been going on for some time. It was brought by Can Be Surgery Corporation and a variety of doctors and others there. And the issue in the case involves some provisions of this B.C. Medical Protection Act that effectively prevent private medical care in B.C.. Now, the act doesn’t outright ban that from occurring, but what it does and the sections that were challenged or two sections, section 17 and 18, that prevent any doctor who’s registered under the medical services plan, which is virtually all of them, from charging patients anything beyond what the MSP will pay. So that, for example, is why the family doctor that’s getting, you know, whatever they get $25 to see somebody can’t charge any more than that unless they’re not enrolled at all in the MSP program. And then another section in section 45 that effectively prevents people from purchasing private medical insurance for anything covered under the medical services plan. Now I should say for a moment. Not all medical procedures are covered under the medical services plan, of course. Right. There are all kinds of medical services that people need, like dental treatment or drugs,.
Adam Stirling [00:01:53] Yeah.
Michael T. Mulligan [00:01:54] Physiotherapy or all kinds of things which aren’t covered. It’s not like if you need it, you’re covered. It’s just we happened to have come up with a list of medical procedures that we decided will be covered under the medical services plan. And so, if they are covered, then these provisions would apply. And all of that is why if you would go to physiotherapy here, you’re going to buy drugs or you’ve got some something that doesn’t involve, you know, something that happens to be listed under MSP, well, you pay for it privately or you get medical insurance sort of, you know, maybe through your work, for example, that might cover it. Now, the challenge that was brought in court and then to this appeal was a challenge to those provisions that you’ve just mentioned, a charter challenge, arguing that they violate Section seven, which was a constitutional right to life, liberty, the security of the person.
Adam Stirling [00:02:46] Yes.
Michael T. Mulligan [00:02:47] And the basis for that was just how long people are having to wait to get. In some cases, some very important medical treatment for anything just covered under the MSP program that we don’t care how long you’re waiting to get your eyes fixed, or your tooth repaired. But we do care about these things, apparently.
Adam Stirling [00:03:07] Hmm.
Michael T. Mulligan [00:03:07] And there are some statistics that were before the trial judge and before the Court of Appeal that outlined just how much the medical plan in B.C. is struggling to do, even when it sets out to be the guidelines. And the way it works in B.C. is that they’ve set out these various priority codes for just how serious your medical problem is. Priority, one, two, three, four, Well, three (b) four and five. And so, for example, the highest priority one priority one would be somebody who is suffering from severe pain and acute conditions with risk of permanent impairment or, you know, something of time sensitive. You might die if you don’t get prompt treatment.
Adam Stirling [00:03:51] yes.
Michael T. Mulligan [00:03:51] All the way down to things like, you know, knee replacements or whatnot. That may be very important for you but aren’t going to kill you. And in B.C., essentially the MSP program is failing for all of those things, but to different degrees. But to give you an idea, the most acute category, that’s people with category one priority severe pain, acute conditions, things that you might die from if you’re not getting prompt treatment. 72.2% of the people who are in that category do not get treatment within the set of guidelines, which would be two weeks for that kind of a problem. Right. This is really an emergency. And then they allow themselves, of course, much longer periods of time for things like knee replacements. Right. Where people can be waiting, you know, at different times there was evidence that these people were waiting sixty plus weeks for those kinds of things. It depends. It varies from time to time, but a long time.
Adam Stirling [00:04:49] Yes.
Michael T. Mulligan [00:04:50] And so the challenge was brought saying, hey, causing people to have to wait so long for this kind of treatment and preventing them effectively from being able to get private insurance or private treatment is unconstitutional. That’s the argument. Right. And in some cases, they argue because people are dying.
Adam Stirling [00:05:09] yeah.
Michael T. Mulligan [00:05:09] Right there waiting for treatment, they can’t get it.
Adam Stirling [00:05:10] Yeah,.
Michael T. Mulligan [00:05:11] Now, I should say about that as well. But the government’s argument was, hey, we need to prevent a public system in order to allow the government to prioritize people based on what they view as need for treatment. Right. And not to have people who have money be able to get better treatment or faster treatment than people who don’t have money, which is understandable. But of course, these provisions don’t prevent people who are wealthy from getting immediate treatment. Right. There’s not many. Jimmy Patterson has a problem, which is a category one. I dare say he’s probably not waiting around four weeks for the MSP program. He’s probably driving down to Seattle and getting treatment immediately and paying for it.
Adam Stirling [00:05:54] Yeah.
Michael T. Mulligan [00:05:55] What’s really prevented by these provisions are people who are middle class people from being able to get, for example, private health care insurance. That’s what’s really being stopped, right? Because if you have lots of money, we have the safety valve of leave the country, go to the U.S., and get treatment immediately. Right. You’re not if you have a lot of money going to wait around for, you know, 64 weeks to get your extremely painful knee fixed right, let alone waiting around for urgent cancer treatment beyond the recommended period of time. You’re just going to pay for it and get it.
Adam Stirling [00:06:27] Yeah.
Michael T. Mulligan [00:06:27] But there are many people who aren’t. And the statistics of the case where there were 33,484 people as of this was 2018, the stats on the case that we’re waiting longer than the maximum waiting period recommended under the MSP scheme. And so that’s the context in which the Charter challenge was brought. Now, the important thing to remember with these cases, I think perhaps the province may be celebrating their success because to cut to the chase. They succeeded on the appeal in preventing those provisions of the Medicare Protection Act from being held to be unconstitutional. But the really important thing to remember is what goes on in court when there is this kind of a challenge. And the Court of Appeal judges are at pains to point out that what they are doing is not a royal commission. It’s not an assessment as to whether the current scheme is satisfactory, working, a good idea, the best, effective, of or any of those things. Right. And they point out that they are those beyond their mandate, their experience, or their jurisdiction. Right. They are simply there to assess whether the state of affairs, which is clear from the evidence here, very problematic. Right. You just shouldn’t have 72% of the people who need urgent care for severe pain and, you know, things that are may well cause death or permanent functional impairment not getting treated in the required period of time. That’s clearly a failure, right?
Adam Stirling [00:07:57] Yeah.
Michael T. Mulligan [00:07:58] But the analysis that goes on with these kinds of legal decisions is not, as the court points out, whether that’s a good idea or whether something should be done to fix it, because clearly something has to happen to fix it. All the people that are waiting to see a GP or don’t have a GP or waiting that long, that’s not satisfactory. But the court is analyzing whether it is so unsatisfactory as to violate the constitutional requirement that we not interfere with life, liberty, and the security of the person. And one of the things we perhaps have slipped into, politically. Is the idea that government policy should be or can be analyzed on the basis of whether it’s constitutionally permissible. That’s not the right threshold for making a public policy choice, which is really what this is. All right. Setting policy on that basis. The analogy I’ve used before is a medical one. It’s like that would be like figuring out the amount of a drug that would kill you and then recommending you take just a little less.
Adam Stirling [00:08:58] Work backwards to life. Yeah.
Michael T. Mulligan [00:09:00] This is death. We’ve just backed it off just a bit and go ahead and take that. That’s not what we do. There should be you know; this decision is not by any stretch of the imagination a conclusion that the health care system is functioning as it should. And what happened in the Court of Appeal decision, there was a split. There were three judges who were deciding the case. Two of the judges found that the there was a deprivation of people’s right to life, liberty, and security to a person. We’ve got all these people waiting, some of whom for very serious things. But two of them found that it wasn’t so bad as to not be in accordance with the principles of fundamental justice. Right. The third judge found that it was not in accordance with the principles of fundamental justice, but the government could justify it under Section one to give a reasonable limit. And so, the outcome of this case right is to point out that. There are very substantial failures in the current system, much of which are, of course, economic. Right. You know, when we have the debate about, you know, not being enough GP’s, much like everything else in the economy, the doctors are small business people, really rightly or overwhelmingly they’re not employed by the government, which I guess is another public policy question. Right?
Adam Stirling [00:10:22] Yeah.
Michael T. Mulligan [00:10:22] They have to rent their own office and hire their own staff and pay taxes, do all those things right. And it’s a function of economics, right? It’s a matter of this is how if you pay more, you’re going to get more of whatever the goods or service is that you’re hoping for. Right. And currently we have a system which blocks doctors from charging any more effectively right for all the services they provide. Right. If somebody says, hey, I’d like to be a GP here, but I can’t make a go of it and, you know, pay my expenses, and afford a place to live or whatever the other sort of pittance they pay each time somebody goes and sees their doctor, right is too low. We’re not getting enough doctors because they’re not paying enough, and they block doctors from charging any more. So that’s just what we’ve that’s how we’ve interfered with the market. It’s economics and market decision. We’ve said effectively this is how much the government will pay for anything we’ve listed as a covered service under the medical services plan. And you may charge no more than that.
Adam Stirling [00:11:27] Yeah.
Michael T. Mulligan [00:11:27] that’s what we’ve done effectively. And the result of it is that we just don’t have enough of the service. And so, you have people that wait, way longer than they should, or in the case of GP’s you just don’t get one. That’s what we’ve done. It’s not too terribly complicated. We’ve, as the government does often want to do, we sort of tinkered with how the market would otherwise function. Right. And you know there are reasons for us, we’ve decided that it’s important that as a principle or as a goal we not allow people to get better treatment by paying for it. But the result is that we don’t have enough people providing the treatment, we just don’t. And so, it seems to me that this decision from the Court of Appeal, which is inevitably going to head off to the Supreme Court of Canada, is clearly where it’s going.
Adam Stirling [00:12:16] Yes.
Michael T. Mulligan [00:12:17] Should not be taken as, hey, this is some kind of a government success. It’s a matter of it’s a conclusion that we know for split 2 to 1 basis, you’ve squeaked by the constitutional limit of not unconstitutional interfering with people’s right to life, liberty, and the security of the person. And it even interferes with people’s right to life. Right. The judges have found that to be right.
Adam Stirling [00:12:40] Yeah,.
Michael T. Mulligan [00:12:40] Well, you’ve heard to get that statist out, but it’s hard to tease out who exactly or how many people passed away because they were waiting too long. But there is clear evidence here that if you’ve got you know, that at least at the time of these statistics, 72% of the people with the most severe and acute problems requiring time sensitive and emergency help aren’t getting it within the time period you’ve prescribed. That is a very, very serious feeling, right?
Adam Stirling [00:13:07] Yeah.
Michael T. Mulligan [00:13:07] And so this decision should not be read as, hey, the Court of Appeal has somehow given the thumbs up to how the medical system is functioning in British Columbia. They’ve been very clear they are not, but they have found it through an exercise of judicial restraint. It’s not so bad as to be unconstitutional. You haven’t prescribed so much medicine as actually going to kill the patient or constitutionally, you’ve just squeaked under the line. And so, I hope the government would read this decision not as somehow a victory, but rather the court pointing out just how serious the failures are with the medical system, the root of those failures being economic failures. We’re just not paying enough to get the people we need to do the important work we need done. That’s it. It’s not that much more complicated in this Medicare, you know, you always be concerned about Government Euphemisms Protection Act, right? It’s not really protecting anyone from something other than people charging more as the market might demand to ensure that there are enough medical procedures for all the people that are waiting. You know, the result is very rich people are just going to Seattle and anyone who’s not very rich and not able to just drive down there, and pay out of their pocket, can’t pay anymore, and can’t get any private care here. And so, we force everyone who’s middle class and below to just wait and people who are wealthy leave. And so that’s the model we’ve adopted and is, of course, pointed out there no other royal commission into it. And maybe even that’s not the right model. But this should be taken when you read it carefully as an indictment of where we’re currently at. And hopefully it leads to not just efforts to repel the legal challenge in the Supreme Court of Canada, but to fix the system, which clearly has serious.
Adam Stirling [00:14:59] All right. Let’s take our break. Michael Mulligan for Mulligan Defence Lawyers, legally speaking, will continue right after this.
Adam Stirling [00:15:05] And it’s Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Legally Speaking, our weekly segment where we take a look at the latest legal affairs and benefit from Michael’s insight and analysis. Up next, sentencing I’m reading here, Michael, for another flying squad member.
Michael T. Mulligan [00:15:21] Indeed, we were getting some interesting decisions and a lot of them, of course, because there are so many of these flying squad members who are being convicted and sentenced for criminal contempt for blocking the logging road contrary to a Supreme Court order. And so, they’re interesting to watch because it is large a number and there’s some general pronouncements in terms of process and principles I think are worth commenting on. This particular decision, which just came out is another one of these four hundred people or so who have been charged with criminal contempt. This was an individual who was 23 years old. He had no criminal record, and he was blocking a road with his arm stuck in a PVC tube called a sleeping Dragon.
Adam Stirling [00:16:08] I was going to say that sounds like a sleeping dragon.
Michael T. Mulligan [00:16:12] I don’t know why they call it a sleeping dragon, but anyways, it’s an arm shoved in a PVC tube and inserted into the ground.
Michael T. Mulligan [00:16:19] Kind of unpleasant and also criminal in this case. So, this fellow was arrested, and he spent some time a couple of days that day and part of the next day in jail and proceeded to trial. He didn’t plead guilty. He was convicted. And so, the crown of this case said that he should receive a sentence of seven days in jail, followed by a period of probation with community work service. And so, it led to the judge doing the sentencing, having to decide what impact, if any, he should be, not pleading guilty, have to the appropriate sentence, which is worth knowing about in some places, including, for example, in the United States, pleading guilty or not has a massive impact on what sentence might be imposed. In fact, the way that the US justice system works in many states is there’ll be some massive minimum penalty to be subject to if you are convicted following a trial. And so, they managed to extract guilty pleas and the overwhelming number of cases to avoid getting, you know, 79 years in jail for whatever it is you’re alleged to have done. That’s how the justice system, frankly, functions, trials are few and far between. We don’t do that in Canada, and there’s never a penalty for somebody choosing to have a trial in Canada. However, there can be a mitigating effect of pleading guilty. The judge could say, look, they otherwise would have given you X period of time. I’m going to reduce that to some extent, to take into account the fact that you’ve saved us some time, shown that you’re remorseful and maybe you’re on the road to rehabilitation. But here the judge pointed out that when sentencing for criminal contempt, a guilty plea is not even near the first or the top of the charts in terms of what is important and the key principles when sentencing people for criminal contempt include things like denunciation and deterrence. And so, the absence of a guilty plea is not really that significant and perhaps less significant than it might be for other offences and other circumstances. And so here the judge took into account the time in jail this person spent after he got extracted from his PVC tube and concluded that it wasn’t necessary to send him to jail for the additional week as the Crown had suggested. Now they said a week minus the time he spent in police custody. But instead, the judge has imposed a sentence of 12 months of probation and is required the person to complete 65 hours of community work during the first 11 months. And no doubt the probation, although it is not set out in the order, is going to prohibit the person from engaging in further behaviour of the kind that led to the conviction here. So that’s what’s at least happened to this particular flying squad, flying rainforest flying squad member. And another factor which the court does by pay of particular heed to is sort of when people have engaged in the behaviour, because the idea with these sentences is that they just ramp up over time until people stop engaging in criminal contempt.
Adam Stirling [00:19:33] Yes.
Michael T. Mulligan [00:19:34] And so that’s a really important factor are people you know, the initial people may be treated will be treated more leniently than somebody who just keeps doing it after it’s been made crystal clear to everyone, you cannot do that. But in this case, 23-year-old spent a couple of days in police custody after he got extracted. He’ll be do some community work and hopefully complete his probation, and off they go. But there’s. A whole series of these things that are quite interesting because they’re large in number in terms of principles.
Adam Stirling [00:20:04] Absolutely. We’ve got 2 minutes left in today’s show.
Michael T. Mulligan [00:20:08] Yeah. Final case, also a court of appeal decision, a sentence of appeal involving a person who in Vancouver had in possession of a small amount of drugs for the purpose of trafficking. The case is significant because the judge imposed a jail sentence despite the person’s serious challenges on the basis of the judge at a previous Court of Appeal decision, saying that for drug trafficking offences, jail is necessary absent, “exceptional circumstances”. And the Court of Appeal here allowed the sentence appeal from this person who was given a six-month jail sentence for being in possession of a small amount of methamphetamine for the purpose of trafficking and pointed out some of the personal circumstances which the Court of Appeal found should have been the exceptional circumstances. And the case is also interesting because it gives some insight into, you know, who’s being captured for sort of drug trafficking, minor offences on the street. Right. And most of those people aren’t exactly Pablo Escobar. This person, for example, was a 42 year old transgendered woman who worked in the sex trade, who was dependent on methamphetamine after having suffered a lifetime of trauma and post-traumatic stress disorder, who is a first time offender was found with a small amount of drugs for whom, if she went to jail as the judge had originally imposed, would lose the apartment that she finally got to help her get out of her marginalized life and the downtown east side. And so, the Court of Appeal here, I think, mercifully concluded that that is exactly the sort of circumstance which might be an exceptional circumstance that the judge should not have felt bound to send her off to jail, causing a marginalized person to perhaps be pulled back into the sex trade and homelessness. And so, the Court of Appeal has determined that no additional jail is required for her. She’d already served 32 days in jail and instead she should be permitted to serve a period of probation so that she doesn’t lose her apartment and wind up back in the sex trade in the downtown east side. So, an important clarification, an example from the Court of Appeal of, you know, who is it that is actually being caught up with those kinds of offences.
Adam Stirling [00:22:27] Very well, thank you so much, Michael Mulligan, as always, Legally Speaking until next week.
Michael T. Mulligan [00:22:30] Thank you so much. Have a great week.
Adam Stirling [00:22:32] All right. You too.
Automatically Transcribed on July 27, 2022 – MULLIGAN DEFENCE LAWYERS