A sweeping constitutional challenge to medicare is set to begin next week. If past court rulings are any indication, the anti-medicare forces have a good chance of winning.

This challenge, before the British Columbia Supreme Court, has been more than seven years in the making. It is spearheaded by Brian Day, a Vancouver physician and long-time critic of Canada’s medicare system.

Like medicare itself, the lawsuit is subtle. It doesn’t challenge the Canada Health Act, the overarching federal statute that regulates provincial provision of universal public health insurance.

Nor does it say, as some critics do, that government should bow out of the health insurance field entirely.

Rather it takes aim at the delicate array of provincial rules and regulations that allow Canada’s one-tier health care system to exist.

In particular, Day is challenging two B.C. rules -- one that prevents physicians enrolled in the public medicare system from also offering privately paid care (sometimes called double-dipping) and another that bans the use of private health insurance to pay for treatments deemed medically necessary.

Day, who for years has been openly flouting the double-dipping rule at his private Vancouver surgery clinic, says these rules infringe upon his patients’ constitutionally protected right to life, liberty and security of the person.

In April, Justin Trudeau’s federal Liberal government was granted leave to intervene in the case on the side of B.C.’s provincial government.

At the time, federal Health Minister Jane Philpott said, correctly, that the case has overwhelming national implications.

Of necessity, Canadian medicare is a delicate balance between Ottawa and the provinces. The federal government agrees to help fund provincial health care. In return, the provinces agree to adhere to the principles of the Canada Health Act – including those requiring them to offer comprehensive physician and hospital care, without user fees, to all residents.

To achieve this, all provinces with the exception of Newfoundland ban double-dipping by physicians. The bigger provinces, including B.C., Ontario, Alberta and (in all but a few cases) Quebec ban the sale of private insurance for medically necessary services.

In effect, most provinces are saying this to their doctors:

You may opt out of medicare if you want (although for some even that right is limited). But if you do, you must give up the lucrative income that comes with operating in the public system.

The provinces’ concern, backed up by evidence from Australia and New Zealand, is that double-dipping specialists would spend too much of their time treating lucrative private patients bankrolled by private insurance. Since there are only a finite number of physicians in Canada, wait times in the public system would therefore increase.

According to the CBC, Ottawa has commissioned an expert report for the trial that makes just this point.

But in the end, what experts say may not matter to the courts. In 2005, a similar case – this one involving Quebec – resulted in a split ruling by the Supreme Court of Canada.

A four-person majority in that case agreed that Quebec’s ban on private insurance broke Quebec law. But on the issue of whether the ban contravened Canada’s charter of rights and freedoms, the seven-member panel was evenly split three to three (with the seventh justice, in effect, abstaining).

What’s interesting, and depressing, about that ruling is that the three justices who found Quebec’s ban on private insurance unconstitutional dismissed out of hand the kind of expert evidence Ottawa is said to be amassing.

The minority judgment from this threesome, co-authored by Chief Justice Beverley McLachlin, dismissed the testimony of pro-medicare experts as “assertions of belief.”

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As a rival minority report produced by the three dissenting justices on the other side pointed out, McLachlan and her colleagues were also oddly selective in the evidence from other countries that they chose to consider.

Whatever the B.C. court decides, the Day case is fated to ultimately land on the Supreme Court of Canada’s doorstep. At that point, will the B.C. and federal governments be able to persuade McLachlin’s increasingly activist court not to meddle with the political compromises behind Canadian medicare? Don’t count on it.