Medicare Protection Act constitutional, sentencing for contempt and drugs on appeal
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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 \\u201cpatients have severe pain or acute conditions, risk of permanent functional impairment, tumour/carcinoma/cancer/high risk of malignancy, or time sensitivity\\u201d, 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\\u2019s 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.
Follow this link for a transcript of the show and links to the cases discussed.\\xa0