A Victoria lawyer has filed a motion to have the B.C. Human Rights Tribunal declared in contempt of court for the way it handled his complaint about prostate-cancer screening. In a phone interview with the Georgia Straight, Laurie Armstrong said he served the tribunal with the documents after it issued a temporary stay of proceedings on October 9. The hearing on the motion is scheduled on Wednesday (October 28) in B.C. Supreme Court in Victoria.
“I’ve served what’s called a show-cause motion,” Armstrong said. “Before anyone is ever cited in contempt of court, they’re first given an opportunity to come before the judge and explain why what they did was not contemptuous.”
In 2005, Armstrong filed a complaint alleging that the B.C. government discriminates against men by forcing them to pay the $30 cost of the prostate-specific antigen screening test, which can detect prostate cancer. Armstrong based his complaint on the fact that the Medical Services Plan covers the full cost of screening tests for breast and cervical cancer. He said he is representing himself as the complainant because nobody in their right mind would hire a lawyer to fight a $30 screening test. “I call this a moment of pro bono madness,” he quipped.
According to a brochure on the B.C. Cancer Agency Web site about PSA testing, the prostate is a walnut-shaped gland below the bladder that surrounds part of the urethra. The gland creates fluid that carries sperm during ejaculation, and it is the most frequent site of cancer in men. PSA is a protein produced by the prostate, and screening tests can detect whether or not levels are abnormal. That can be followed by a biopsy. Men who have difficulty urinating or who urinate frequently should talk to their doctors.
Armstrong noted that approximately 480 men die each year in B.C. because of prostate cancer, whereas about 700 women die each year from breast and cervical cancer. He said that, in effect, the B.C. government has determined that cancer screening tests involving the reproductive system are medically necessary, but those involving the male reproductive system won’t be covered by the Medical Services Plan.
“A lot of the controversy stems from the fact that the PSA test will pick up cancer in the prostate that in some cases might be so slow-developing that the man will die of something else,” Armstrong said. “It won’t kill them. The government, in an amazingly paternalistic fashion, says those men would be better off not knowing because it isn’t going to kill them anyway.”
In 2008, B.C. Human Rights Tribunal member Kurt Neuenfeldt dismissed Armstrong’s complaint. The Victoria lawyer sought judicial review in B.C. Supreme Court. On June 29, Justice Robert Johnston ordered a new hearing, ruling that Neuenfeldt erred by focusing on “medical necessity” and examining “sound epidemiological and public health considerations”.
“In doing so, he appears to have leapt from the preliminary stage, where he should have decided whether there was a case for the respondent to meet on the question of sex as a factor in the funding decision, to the ultimate issue to be decided, that is, whether there was discrimination as defined under the Code,” Johnston wrote in his ruling.
Neuenfeldt’s ruling on prima facie discrimination meant that the tribunal did not proceed to the next stage in law, which would have shifted the onus to the Ministry of Health to demonstrate a reasonable justification for not funding PSA screening tests.
Under Sec. 8 of the British Columbia Human Rights Code, a person must not, without a bona fide and reasonable justification, deny a person or a class of persons any accommodation, service, or facility customarily available to the public. “Governments should have no special status when it comes to human rights complaints,” Johnston wrote in his decision.
On July 23, the Ministry of Health appealed Johnston’s ruling in the B.C. Court of Appeal. In the meantime, it filed an application before the B.C. Human Rights Tribunal seeking a temporary stay of proceedings on a new hearing, which Neuenfeldt granted on October 9.
In Armstrong’s view, only a B.C. Court of Appeal justice has the authority to overturn a ruling in B.C. Supreme Court. He argued that any application for a stay of proceedings should have been filed in B.C.’s highest court rather than at the tribunal. He also argued that Neuenfeldt should not hear the application for the stay of proceedings because he is the same member who dismissed his complaint in 2008.
Neuenfeldt dismissed Armstrong’s arguments and issued a temporary stay of proceedings until January 8, 2010.
Under contempt proceedings, Armstrong’s motion will go before Justice Johnston. Under the Criminal Code of Canada, anyone who disobeys a lawful court order may face imprisonment for a term not exceeding two years. “A B.C. Court of Appeal justice has authority over a Supreme Court justice,” Armstrong said. “I argued that this whole thing is wrong.”
The B.C. Human Rights Tribunal declined the Straight’s request for an interview. Quebec, Alberta, and B.C. are the only three provinces that don’t cover the cost of prostate-cancer screening.