EDITOR’S NOTE: This article originally appeared on The Trillium, a new Village Media website devoted to covering provincial politics at Queen’s Park.
Advocates challenging Bill 7 got a rough ride on Monday.
The Ontario Health Coalition and the Advocacy Centre for the Elderly brought a Charter challenge of the Ford government's controversial law that fines hospital patients $400 a day for refusing to move to a long-term care home not of their choosing.
Their lawyer, Steven Shrybman, argued the law violates patients' rights to equality under Section 15 and to life, liberty and security under Section 7 of the Charter.
Justice Robert Centa appeared unimpressed with the groups' evidence and repeatedly grilled Shrybman on whether they had standing to represent patients affected by Bill 7.
The patients themselves are elderly and often infirm — "singularly unable in our society to advocate on their behalf," Shrybman noted. As such, the OHC and ACE should have public interest standing to represent them, he argued.
Centa clearly would have preferred that one or more of the family members of the patients — known as a "litigation guardian" — represented them instead. That would let him consider the constitutionality of the bill based on what happened to a specific person, as opposed to what often amounts to "unattributed hearsay," he said.
Shrybman asked him to consider the situation those caregivers are in, many of whom are advocating for the stress of an ailing relative. The experts' opinions quoted in their case are “thoroughly supported with data and empirical evidence. Their evidence is not about hearsay," he said.
Centa pushed back on several points Shrybman made, questioning his wording and the arguments themselves.
A particularly contentious topic was the "alternate level of care" (ALC) designation, made by physicians, which Centa understood meant that the patients no longer needed hospital care.
Most ALC patients are actually waiting for care in another hospital setting, like psychiatric or complex continuing care, Shrybman said. Often, hospitals are ill-equipped to provide that care, he said.
At one point, Shrybman noted that Ontario has among the lowest number of hospital beds per capita in Canada.
“I can’t do anything about that," Centa said.
Shrybman often had to regroup and zoom out to the larger issue. He argued the government has a "fundamental misunderstanding" about the impact that so-called ALC patients have on hospitals — and that the time they spend in hospital is their own fault for refusing long-term care placements.
In its factum, the Crown refers to patients “who make choices to lengthen their hospital stay,” Shrybman noted. “Not ‘choices that will lengthen their hospital stay,’ but ‘choices to lengthen their hospital stay.’”
In response, the government has used "various means of coercion” to push people into long-term care homes that are “far from their families and other community supports," that don't line up with their cultures, and have poor records of care, he argued.
“These people are very old and ill and whose health conditions are precarious and change very quickly," Shrybman said.
“Bill 7 undermines and in many cases effectively removes the ability of … patients to choose where they spend their final days.”
As a consequence, “the suffering of these patients will increase and their lives will be shortened,” he said, referring to testimony from Dr. Amit Arya and various “empirical and documented” evidence in medical journals.
Shrybman and Ontario's lawyer, Zachary Green, declined to be interviewed during the morning break.
Green will respond on Tuesday.
More to come.
