A fool’s errand

Written by Brenda Schimke

Once again, the Canadian Constitution takes a bite out of Dr. Brian Day’s 11-year pursuit to overturn Canada’s public health care system. A private-health care advocate and investor, Dr. Day had his latest appeal dismissed by the B.C. Court of Appeal. His failed argument, people have the constitutional right to privately purchase health care when the public system takes too long.

It’s a lesson that supporters of Pierre Poilievre, Danielle Smith and Brian Jean should consider.

Dr. Day’s lawyer’s argument focused on Section 7 of the charter, which reads, “Everyone has the right to life, liberty and security of the person and right not to be deprived thereof except in accordance with the principles of fundamental justice.”

His argument failed, yet again, to meet the conditions under Section 1, which puts limitations around individual rights and freedoms. Dr. Day was unsuccessful in proving private health care delivery wouldn’t negatively impact the public system.

Throughout the Canadian constitution, there is an overriding theme of a society that values fairness and needs based over individual rights. The equalization program and public health care are two such examples.

Another example was when the courts found that COVID vaccination restrictions in public areas, airplanes and workplaces during a pandemic were not unconstitutional. Everyone had the right not to be vaccinated but everyone didn’t have the right to put others in danger.

The same argument applied to the Ottawa occupation and border blockades—they became illegal, not because people don’t have the freedom to protest—but they don’t have the right to take away the livelihood or the peaceful existence of others.

The Constitution also got in the way of former Premier William Aberhart’s legislation to assert Alberta’s independence over currency, Preston Manning’s elected Senate push, and Stephen Harper’s move to change the rules for judicial appointments to the Supreme Court.

In 2014, Prime Minister Stephen Harper appointed Marc Nadon to the Supreme Court even though unqualified. In a pre-emptive move, Harper included a provision in the 2013 budget bill that would change the appointment eligibility to match Naden’s qualifications.
In a 6 – 1 decision, a majority of justices on the top court ruled that Nadon didn’t qualify to join them in the court.

In a separate opinion, they ruled Supreme Court provisions in the budget bill are void because the legislative branch does not have the power to make amendments to the constitution unilaterally. Constitutional amendments also require the approval of seven provinces representing 50 per cent of the population.

Danielle Smith’s Alberta Sovereignty Act, Brian Jean’s promise to eliminate equalization payments and Perrie Poilievre’s commitment to the absolute freedom for individuals, all require changes to the Canadian Constitution and the Charter of Right and Freedoms.

Have ‘these three’ solved the seven-province, 50 per cent population conundrum that has tripped up all those before?

How do ‘these three’ plan to get around a Canadian justice system which has a reputation for being one of the strongest independent judiciaries in the world?

Dr. Day’s persistence in bringing his privatization argument before multiple courts year after year and getting the same decision—‘unconstitution’al—could be labelled a fool’s errand.

The previous attempts by right-wing leaders to change the constitution through legislation has ended the same way—‘unconstitutional’.

For ‘these three’ to promise the ‘all but impossible’, is not only a fool’s errand, but it shows complete disregard for their supporters who, today, absolutely believe these promises are a ‘done deal’ once their candidate is elected.

Brenda Schimke
ECA Review

About the author

Brenda Schimke

Schimke is a Graduate with Distinction from the University of Alberta with a BCom degree. She has lived and worked in Alberta, BC and Ontario.