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Ignoring the evidence before them about Alberta’s long and painful waiting lists, Alberta’s courts have refused to deal with the violation of Darcy Allen’s Charter rights.

Last week’s Court of Appeal decision, as well as the trial decision under appeal, declared that Dr. Allen had not brought forward enough evidence to support his claim. Curiously, neither decision refers to the extensive evidence put before the court about Alberta’s long wait lists, and how wait times hurt patients, even killing them in some cases. While refusing to consider — or even mention — this abundant evidence, the court declared that Darcy Allen should have introduced expert reports and expert witnesses to testify about the fact that wait lists exist, and the fact that wait lists inflict suffering — and sometimes death — on patients. The Alberta government has not disputed either of these two facts. They are the same facts on which the Supreme Court relied in Chaoulli.

Following the court’s logic, Darcy Allen should have spent $77,000 out-of-pocket on his medically necessary surgery, and then an additional $200,000 to $400,000 to assert his Charter rights, by paying a panoply of experts to “prove” basic facts that have already been admitted by the Alberta government. So much for access to justice.

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To respect Charter rights, governments have only two options: ensure that a monopoly system provides real access to health care (not just access to a waiting list), or allow Canadians the freedom to access health care outside of the government’s system. A law that creates a government monopoly over health care, by banning private health insurance, complies with the Charter only if that monopoly does not inflict pain and suffering — and a real risk of death — on waiting patients.

Ignoring the evidence before them about Alberta’s long and painful waiting lists, Alberta’s courts have refused to deal with the violation of Darcy Allen’s Charter rights. Hopefully the Supreme Court of Canada will not refuse to do so.

National Post

Calgary lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (www.jccf.ca) and acts for Darcy Allen.