Lee Friday – September 22, 2020
On September 10, the British Columbia Supreme Court “dismissed a court challenge by Dr. Brian Day, former head of the Canadian Medical Association, whose surgical clinic in Vancouver provided medical services to patients failed by the public system, in violation of B.C. law. Dr. Day argued that the province’s ostensible ban on this type of privately-funded health care violates the Charter of Rights and Freedoms [Charter]. While the court ruling acknowledged the plight of thousands of patients on waiting lists, it simultaneously denied them the right to do anything about it.”
Shockingly, as Justice John Steeves affirmed the illegality of voluntary exchanges between patients and doctors, unimpeded by government conditions, he irreverently declared that this does not violate these individuals’ right to liberty or security of the person under the Charter.
The Right to Liberty Exists Only on Paper
The Charter is part of Canada’s Constitution. Section 7 of the Charter reads:
“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
In his ruling, Steeves wrote (para. 1764): “… liberty interests under s. 7 are engaged only where the law or state action interferes with a person’s ability to make fundamental personal choices.”
That sounds good, but then Steeves wrote (paras. 1767, 1768): “… patients are free to spend their money on healthcare services as they deem appropriate (admittedly within the constraints of the MPA [Medicare Protection Act]). Therefore it cannot be said that there is a sufficient causal connection between the impugned provisions and the alleged deprivation. … I conclude that the plaintiffs have not established a deprivation of their right to liberty under s. 7.”
To say that this is a deception seems blatantly obvious. “The law or state action” includes the MPA, with its acknowledged constraints. Among other things, these constraints include rules about which medical practitioners may offer their services, which services they may offer, and at what prices they may offer these services. This clearly interferes with “peoples’ (patients and doctors) ability to make fundamental personal choices.” Yet, while this deprivation of liberty is beyond dispute, Steeves denies the deprivation. There you have it. Unfree = free, according to the B.C. Supreme Court.
The Right to Security of the Person Exists Only on Paper
Steeves wrote (para. 1769): “Security of the person is engaged where the law in question or state action causes, or increases the risk of, physical or serious psychological suffering.” And Steeves agreed (para. 8) “that the plaintiffs have established that unreasonable wait times [in the public system] engage the right to security of the person for some patients.” Regardless, Steeves shamelessly declared that this deprivation of the right to security of the person is consistent with the principles of fundamental justice!
Joanna Baron, Executive Director of the Canadian Constitution Foundation, responded:
“It is certainly not in accordance with fundamental justice to leave patients suffering on wait lists when there are existing clinics, that have existed for over 20 years, that could treat them. About 75,000 Canadians have died on wait lists since this case was launched in 2009, and this decision will lead to even more suffering.”
Section 7 of the Charter talks about “the principles of fundamental justice”, but nowhere in the Charter are these principles defined, as the matter is conveniently, and intentionally, left to the courts. And Steeves’ lengthy propaganda-filled discussion of these principles (paras. 1943-2803) proves that the Charter is not worth the paper it is written on.
A Free and Democratic Society?
Likewise, in Steeves’ decision (para. 22), and section 1 of the Charter, we are told that legal decisions will be consistent with what we should expect in “a free and democratic society,” but, again, this phrase is not defined. In 2012 (the 30th anniversary of the Charter), Andrei Mincov, a lawyer, wrote about this ill-defined phrase:
Canadian courts have decided hundreds of cases dealing with the interpretation of s.1 of the Charter. None of them provides a meaningful framework of what a “free and democratic society” is. The interpretation is reduced to the utilitarian standard of proportionality: whether the misery inflicted on one group of people is justified if it achieves a proportionally beneficial result for another group of people.
That is a perfect description of the foundation upon which Steeves crafted his decision. Mincov continues:
… the utilitarian model of rights … implies that it is proper to limit rights and freedoms of one group of people if a larger group of people may benefit from it. True freedom of an individual or a group of individuals can never come at the expense of dispensing with the freedom of someone else.
This is precisely why courts do not offer a sensible interpretation of the word “free”: The proportionality test does not fit well with true freedom.
If the word “free” is to have any real meaning, it has to involve not being subject to the control or domination of another, whether it is an outside force, the force of the national government or the force of other people or organizations.
If this is the goal, then today’s overly regulated Canadian society is very far from it. We do not have the right to build a house on our own property unless the house meets a government-imposed standard; we do not have the right to receive legal advice from someone who has not obtained the costly blessing of the provincial law society; our private health care options are dismally limited; the government is extorting our property through taxes and spending it on purposes that go against our beliefs; successful businesses are being thwarted by arbitrary anti-trust laws, while the government feels free to create its own government-backed monopolies; our freedom of expression is being reduced to saying politically correct things that will not offend anybody. The list goes on and on and on.
… if the word “free” is to have any meaning, it should mean something more than whatever freedom remains after the government has finished restricting it.
On the word “democratic,” Mincov writes:
If section 1 of the Charter uses the word “democratic” to justify anything that is supported by the majority of the electorate, then we are facing a contradiction, since the Charter is meant to protect not only the majority, but also minorities, including the smallest minority, the individual.
The scope of questions that are properly decided by the majority is very limited. The majority should not force anything that a single representative of the majority cannot do on his or her own. Thomas Sowell has famously written:
“What do you call it when someone steals someone else’s money secretly? Theft. What do you call it when someone takes someone else’s money openly by force? Robbery. What do you call it when a politician takes someone else’s money in taxes and gives it to someone who is more likely to vote for him? Social Justice.”
The only reason for the government to exist and to possess the monopoly on enforcement of the rules that it creates is to protect individual rights and freedoms. These rights and freedom[s] are all negative rights in that their exercise requires only that everyone abstains from a violation of these rights; it does not require the compulsion of anyone into a positive action.
This reduces the proper roles for the government to an efficient military that protects the country from outside invaders; police that protect the population from robbers, murderers, rapists and marauders; and courts that provide a proficient mechanism for the resolution of disputes. Governments are failing spectacularly in all three roles, yet they usurp more and more power to intrude in our lives where it is improper for them to do so.
The only proper case for the limitation of true rights is when the person whose rights are to be limited has violated the true rights of someone else. No other reason can be justified among free people.
The B.C. Supreme Court’s ruling is not surprising, nor is its foundation unique. Justice John Steeves’ decision, based on a foundation of hyperbole and doublespeak, is consistent with that of hundreds of other previous decisions rendered by his small coterie of public opinion molders.
We must not allow politicians, bureaucrats, courts, and their sanctimonious cheerleaders in the mainstream media, to bastardize the definition of the word “free.”
Image credit: pxhere