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Foreigners are people too

March 13, 2012 2 comments

This is the second of two posts prompted by Dr. Robert Centor’s critique of a recent New York Times Magazine article accusing America of “stealing [sic] the world’s doctors.” In the first post, I show how US immigration policy for physicians is a boondoggle of near-comedic proportions that doesn’t even constitute an effort at “theft,” given that it’s hard-pressed to hold onto me after I graduate (as I explain, I should be one of the easier doctors to “steal”).

Now let’s look at the counterfactual situation. Suppose the it were actually easy and straightforward for physicians to immigrate to the US (or to remain, in my case), gain licensure, and be certified in their specialties. Suppose the immigration and licensure systems were designed with this very goal in mind. Would this be a bad thing?

The conventional wisdom is that the emigration of skilled professionals from less to more-developed countries is bad for the less-developed countries: this process is often referred to as “brain drain.” Critics argue that “brain drain” harms poorer countries by preventing the development of local talent, skills, and professionals that are often sorely needed. They also point to the fact that many countries subsidize education at least to some extent, only to see the investment in their citizens’ human capital slip away beyond their shores.

The conventional wisdom is wrong. As the 19th century economist Frederic Bastiat pointed out, it is best “not to judge things solely by what is seen, but rather by what is not seen.

What is “not seen” when it comes to emigration of skilled professionals? Networks of diaspora spread ideas and expertise, strengthen economic and social ties between countries, promote peace, and promote advances in the standards of living both at “home” and “abroad.” Emigrants usually earn much more in their new country, and their remittances home are not only better able to support their family and community, but are often enough (over a lifetime) to dwarf the amount their home government spent on their educations. The option of emigration to higher-income countries creates incentives for poor countries to invest in education, and for their citizens to take advantage of it. In short, emigration of skilled professionals to richer countries enhances their productivity, which in turn has positive effects for their home country, their adopted country, and all of us along the way.

Yet even this analysis misses the fundamental point. To insist, as the New York Times does, that foreign physicians somehow “belong” to their home countries is to objectify and commodify them. When you think about it, it’s a remarkable assumption for anyone to make. Foreigners are people too. We’re not chess pieces to be pushed around a board, traded for promises of foreign aid, trade preferences, or anything else one might imagine. The Canadian government has no more claim on me and my career than the American government does on anyone who has ever attended a public school in this country.

This is a universal principle. I don’t care how poor the country is, no government can claim to “own” its people in this way. It’s absurd to suggest that the United States government should alter its immigration policy to cater to other countries’ desire to engage in this form of subtle repression, and even more absurd to think that this would actually benefit anyone.

Physicians who voluntarily leave one country for another in the hopes of making a better life are not “being stolen.” Not unless you think they’re owned by someone other than themselves. At its core, that’s what this discussion is all about. And that’s why, in my mind, there should be no ambiguity as to the right conclusion.

Theft? Madness is more like it

March 13, 2012 1 comment

In the process of catching up on Google Reader post-convention, I came across this recent post from Robert Centor criticizing a recent NY Times Magazine article alleging that ‘America is stealing [sic] the world’s doctors.’ As Dr. Centor rightly points out, this is utter nonsense, on multiple levels. In this post, I want to address the aspect of the “foreign doctor/brain drain” question that applies to students like me; in the next I talk about physician and other “brain drain” more generally.

As a student at an LCME-accredited American medical school, I don’t fall into the “international medical graduate” (IMG) category in quite the same way as those in the article. And despite the fact that I’m “only” Canadian, I’m still foreign enough to have to figure out where my next visa will come from for residency, fellowship, and beyond. This post will not be an extended disquisition on the finer points of American immigration law and visa classifications (subjects with which I am far too familiar). You will, however, get a taste of how dysfunctional the American approach to foreign physicians is, especially at a time marked by widespread predictions of an impending doctor shortage.

Most public medical schools in the US and many private schools will not even consider non-citizen/non-permanent resident (foreign) applicants. Those of us who do get an offer somewhere find that we are not eligible for US government financial aid, and for a great deal of school-based aid as well. Despite this, we still benefit indirectly from taxpayer subsidies. Tuition makes up a minuscule fraction of medical school revenue; according to SUMS‘s tax returns, our tuition barely covers the costs of the medical education and educational technology support staff. Nothing more. The rest comes from patient care revenues and various grants, much of which in turn comes from the taxpayer.

After receiving a medical education at great personal financial cost (debt), yet one that’s also heavily subsidized by the US taxpayer, the expectation is that we go home. Or at least leave the country. Completing post-graduate training in the US requires finding residency programs that are willing to sponsor one of the two main types of visas that can be used for this purpose: the J-1 comes with a 95% iron-clad requirement to leave the US and work in one’s home country for two years upon completion of training before one can come back to this country; the H-1B comes with a 100% iron-clad time limit of six years (for reference, here is a list of residency length by field, not including sub-specialty fellowships). Even assuming one could find and be accepted into a program that will sponsor either visa, neither seems particularly conducive to “theft” of foreign physicians.

Unlike in medical school, foreigners in US residencies and fellowships often do benefit from direct US taxpayer subsidy, as Medicare pays for most residency positions, including salary and benefits. So what happens to foreigners who receive direct government subsidies to train in their specialty?

Again, the expectation is that we will go home (in the case of the J-1 visa), or at least leave the country (in the case of the H-1B). The United States is one of the few, perhaps the only, developed country that requires all long-term immigrants to be sponsored by an employer or a family member. There is no “points” system for independent applicants; no way for someone like me to prove that I’m smart, talented, possess in-demand skills, and probably ought to be allowed to stay indefinitely (not to mention the hundreds of thousands of dollars of subsidy I will have enjoyed by this point). More shockingly, there’s seemingly no desire on the part of the US government to hold on to the medical talent that it paid to develop.

What employer would sponsor a foreign physician? Moreover, what employer would sponsor any employee for permanent residence before at least a few years of full-time employment have passed? The H-1B comes with a six-year time limit; look at the length of various residencies at the link above. We’re short primary care physicians (3 years), yes, but we’ll be short general surgeons (5 years) and cardiologists (6 years) as well.

I, and those in my situation, are the lucky ones, comparatively. We don’t even have to jump through extra hoops for medical licensure and board certification the way “real” IMGs have to. It’s a wonder anyone manages this at all.

If the United States is “stealing” [sic] foreign physicians, it’s one of the most tragically/comically inept thieves I’ve heard of. Even in my “easy” case, after I will have spent 7+ years being educated at world-class American schools (11+ if you count college), the US is happy and indeed seemingly eager to see me go.

Some people would approach this conundrum entirely differently. They would argue that because foreigners in the American medical training process receive indirect and then direct government subsidies, the process should be closed to them in the first place. I understand the logic, but this strikes me as doubling-down on the foolishness of the current system. Getting into medical school and residency is frighteningly competitive. Being a foreigner only makes it harder. I make no claims as to myself, but one would therefore expect the marginal foreign applicant to be at least as good as the marginal American applicant… if not better. That some of them manage to stay in the US to practice medicine even in spite of the numerous hurdles along the way should suggest even more strongly that these are the people you want to hold on to.

The Other “Medicare”

July 9, 2011 Leave a comment

I’m surprised that it’s taken me so long to devote even a cursory post to health care in Canada (or as it’s referred to back home, “medicare”). After all, as my disclaimers page says, “if the blog title didn’t give it away, I’m Canadian.” However, a recent series of posts at Medscape’s medical student blog “The Differential” [free registration required] inspired me to take on the subject.

I want to make clear at the outset that this post is intended to be descriptive. My thoughts on Canadian medicare and its implications for proponents of single-payer in the US can wait for another time.

Before delving into the Medscape commentary itself, we should begin with some general background on health care in Canada.[1]

***

[1] – Much of this background was assembled while preparing a presentation that for the first  health economics course I took in university. I have done my best to bring things up to date. Depending on the minutiae of when laws are introduced vs. passed (and which of the two you refer to), some of the earlier dates in the History section may be 1-2 years off from what you read in some other sources.


History


Canadians feel strongly about their medicare. Most of them love it, or at least love the idea of it. If you’re a politician wanting to discuss the system in terms of anything other than providing more funding for the system, you’re likely to be toast in short order. And don’t even think about promoting “two-tier” health care! Governments at the federal and provincial level have risen and fallen based on the health care issue; it’s a major component of provincial government spending, and many Canadians view medicare as a component of national identity.

Government involvement in Canadian health care began in earnest in 1944, when the government in the province of Saskatchewan introduced a system to provide free health care to the elderly and retirees. This was followed shortly in 1947 by a public hospital insurance plan featuring a $5/person/year premium. In 1959 the socialist government of Tommy Douglas (considered one of the “fathers of medicare“) announced the first universal public health insurance program in Canada. Needless to say, Saskatchewanian (Saskatchewanite? Saskatchewanish?) physicians were wildly opposed, even going on strike for a few weeks in 1962.

A decade later, the ideals that drove the new program in Saskatchewan came to fruition on the national stage, as medicare was introduced in the remaining Canadian provinces beginning in 1967. This was not done in one fell swoop. The constitution in Canada has established health care as the domain of the provinces. The federal government rolled out medicare across the country not by fiat, but by offering matching funds (now block grants) to provincial health plans that met certain legislative criteria; this has given the federal government an important role in both financing and “regulating” provincial health care plans, though in recent years the federal share of health financing has fallen as low as 15-20%, with the rest paid by the provinces. In this sense, the structure of Canadian health care financing more closely resembles that of US Medicaid than of US Medicare. It should also be noted that both the earlier and current iterations of provincial health plans covered mostly to exclusively hospital and physician services: no home care, drugs, devices, etc.


Federal Legal Framework


By the mid-1970s, the last Canadian province had signed on to medicare and the program was not due for another major shake-up until 1984, the year the Canada Health Act was passed. The CHA is still the current governing framework for public health care in Canada. It re-affirmed the five basic criteria and two conditions for federal funding, but unlike the previous federal legislation, the CHA more clearly authorized the federal government to withhold transfer payments as a penalty for provincial transgressions.

The CHA imposes 5 basic eligibility criteria for provincial plans to receive federal support.

  1. Public administration: each province’s health plan must be administered by a publicly-accountable, non-profit entity. In practice, this is usually a government agency or arm’s-length government-owned insurer.
  2. Comprehensiveness: all “medically necessary” services must be covered, though provinces get surprisingly wide latitude in defining what is medically necessary.
  3. Universality: all residents of a province must have access to public insurance on the same terms and conditions. In other words, all insured must be equal, and all are equally insured. The Act defines “insured persons” in such a way that treatment sought under worker’s compensation or auto insurance regimes escapes some of the dictates of the Act. In addition, provinces are allowed to impose minimum residency length requirements (e.g. 6 months in Ontario) before residents are eligible for coverage; in some provinces, this even applies to Canadians moving from other provinces.
  4. Portability: provincial plans must reimburse insured persons for medical services used during temporary absences from the province, at least at the rate specified in the provincial plan’s fee schedule.
  5. Accessibility: access to coverage must be uniform and barrier-free. There can be no discrimination or disparate treatment based on age, income, health, etc. On the provider side, provinces are required to have a clear and transparent fee schedule, with providers being “reasonably” compensated.

In addition, the CHA imposes two more specific conditions on funding that cut more closely towards health care delivery, as opposed to the five conditions that govern financing.

  1. Balance-billing (or “extra-billing” as it’s sometimes called in Canada) is banned. Physicians and hospitals are not allowed to charge provincially-insured persons for provincially-covered services in addition to the province’s payment for the service. This is similar to US Medicare’s ban on balance-billing.
  2. Provinces are not allowed to impose “user charges” for insured services. This became an issue recently as the government of Quebec toyed with the idea of introducing modest co-pays for some services for some insured. Not allowed.

The result is a “system” that’s not just one system. Each province (and possibly each territory?) has its own provincial health insurance plan that is run subject to the constraints of the Canada Health Act. The federal government administers health plans for members of the armed forces, the RCMP, and First Nations living on reservations. Worker’s compensation and auto liability insurance also play small roles.

The provincial plans are the major players, and are what most people in Canada and the US think of when they discuss the “Canadian health care system.” Though the criteria laid down by the CHA result in the appearance of national uniformity (and to be fair, a good deal of actual uniformity) in how health care is financed, administered, and delivered in Canada, there is a good deal of meaningful variation between provinces.


The Private Sector


One important dimension of variation is the role of the private sector in delivering and insuring services that are covered by provincial plans.  As of 2005 (I haven’t looked more recently, but am unaware of major changes since them):

  • Four provinces (QC, AB, BC, PEI) allowed physicians and other covered providers to set their own fees for providing covered services without billing the province. However, these provinces did not allow any reimbursement of patients or providers for covered services not billed to the province. In addition, these provinces banned private insurance coverage of any service covered under the provincial plan, even if delivered in the private setting.

    In 2005, a physician and his patient sued the Quebec government, arguing that the ban on private insurance coverage of privately-delivered publicly-covered medical services violated the Canadian Charter of Rights and Freedoms and the Quebec Charter of Rights and Freedoms, especially given long waiting times for treatment in the public system. The case made its way to the Supreme Court of Canada, which ruled that the prohibition violated the Quebec Charter of Rights and Freedoms. Given that the decision was grounded in QC provincial law, it had only limited direct impact in the other three provinces.

  • Three provinces (ON, NS, MB) forced providers going outside the public payment system to charge at the public fee schedule. They also banned private insurance coverage of privately-delivered care that was also covered by the provincial plan, though two of these provinces (ON, MB) reimburse patients for out-of-pocket expenses paid to private providers.
  • Three provinces (SK, NB, Nfld) allowed unfettered private delivery and private insurance for services covered by the provincial health plans. Newfoundland would reimburse patients for out-of-pocket expenditures to private providers up to the provincial fee schedule, whereas SK and NB provided no reimbursement for private expenditures.

     

  • Private diagnostic clinics were beginning to emerge in three provinces (QC, ON, AB) in response to a pervasive lack of timely access to diagnostic imaging services. Though these clinics operated outside the public system, Ontario and Alberta actually contracted with some of them to provide services to public patients. For those with the means, however, payment could secure an earlier appointment for imaging, shortening the amount of time waiting for a diagnosis, and where applicable allowing earlier entry into a queue for treatment.


A National Single-Payer?


One of the features of health care in Canada that is often overlooked by proponents of single-payer in the United States is that Canada as a whole does not have a “single payer,” which means it’s hard to make sweeping generalizations about details. Covered services, the quality and quantity of care provided, and physician/provider payment vary across provinces. Not earth-shatteringly so, but enough to introduce a small modicum of inter-provincial competition for physicians, and “competition” in services and benefits mediated through political pressure (e.g. “Patients in BC can get this drug, why won’t you pay for it here in Nova Scotia!”). Given the perennial importance of medicare as a political issue, the importance of popular pressure to increase funding and expand services should not be trivialized.

It’s also worth pointing out that about 30% of Canadian health care spending is individuals’ out-of-pocket payments for things like drugs, home health, hospital amenities, and other non-covered services. This is 2-3 times the fraction of health care spending in the US that comes directly out of individuals’ pockets in exchange for services received.


Unions, Public Employees, and Hospitals


Contrary to what I’m told is common belief in the US, most Canadian physicians are not government employees. Though some provinces hire doctors for what I surmise are analogues to Community Health Centers, the vast majority of physicians are independent contractors paid on a fee-for-service basis according to the provincial fee schedule. In Ontario, some family physicians practicing in so-called “Family Health Teams” are capitated, and some emergency physicians are paid by the hour. An interesting wrinkle is that some provinces have hard caps on how much a physician can earn in any year; obviously this creates disincentives to working so hard / so much that the cap would be reached in a year. (It’s not just hypothetical: I have a few physician friends in Canada who have made great strides in their golf game as a result of this cap).

Hospitals, on the other hand, are closer to highly-regulated public utilities. In Ontario, most hospitals are non-government or arms-length, non-profit entities. Most of their money comes from a “global budget” (i.e. “this is your budget for the year”), though there have been experiments with US Medicare-like prospective payment systems for certain conditions. Patients also pay per-diem fees for non-covered amenities (e.g. private inpatient rooms, phone and TV service as inpatients). Provinces (or regional health authorities, or whichever provincially-created entity is in charge in a given province) have at least some control over hospitals’ capital spending. In Ontario, regional health authorities determine what sorts of specialty services and facilities are available at which hospitals within their purview. Hospitals are allowed to engage in public fundraising for capital campaigns; I’m not sure how this interacts with provincial controls on capital spending.

Physician licensing and governance is a point of special interest to me. There is the usual plethora of physician groups, specialty societies, etc., similar to what is found in the US. However, given the effective monopsony power of provincial governments in the market for physicians’ services, provincial medical associations have emerged whose main function is to represent physicians in fee schedule negotiations with government. Canadian physicians seem to have more input into provincial fee schedules than American physicians do into Medicare fee schedules. Whereas American physicians set the relative weights of various services in the Medicare fee schedule (and only indirectly lobbying for changes in the monetary conversion factor), Canadian physician organizations typically negotiate for dollars directly with government.

The Ontario Medical Association is one of these organizations. Unlike groups such as the American Medical Association, their orientation (and their website!) is very physician-centric. In addition to negotiating the terms of the provincial fee schedule, the OMA also sets maximum rates that physicians can charge for certain non-covered services (phone consultations, insurance forms, etc.).

Physician licensure and discipline is also done at arm’s-length from government. Unlike in the US, where medical licenses and disciplinary action are typically the domain of state government medical board, most (if not all) Canadian provinces have allowed the medical profession to remain somewhat self-regulating. For instance, the College of Physicians and Surgeons of Ontario is the licensing and disciplinary body for physicians in Ontario. Its governing body is composed of 16 physicians elected by their peers, 3 physicians selected from Ontario’s 6 medical school faculties, and 13-15 members appointed by government. Also of note is the fact that many provinces, including Ontario, condition licensure on the Canadian equivalent of specialty board certification. The opposite conditionality holds in the US.


By the Numbers


It would be foolish to try to replicate this series of three posts at the Healthcare Economist, where Jason Shafrin does a wonderful job of collecting the major summary statistics for infant mortality, life expectancy, access to care measures, and physicians per capita.


Next Time


In an upcoming post, I’ll discuss common American medical student perceptions of Canadian health care (as exemplified by the post at The Differential mentioned at the outset, and with some telling anecdotes from March’s AMSA conference), along with the always-hot topic of waitlists for treatment.

Retainer medicine and medical students

August 24, 2010 3 comments

Earlier this month, Dr. Bob Centor posted one in a long line of posts explaining the appeal and merits of retainer medicine, especially in the outpatient general medicine context.  Retainer practices free both physicians and patients from the constraints of third-party payment systems, putting the patient firmly in control and allowing for the development of resilient physician-patient relationships that are more difficult to establish when visit length is otherwise effectively limited to 15 minutes (though these days I keep seeing “10 minutes” bandied about; is this a sign?).

What is fundamentally subversive about retainer practice, however, is that it represents a renunciation of dependence on government (or private insurers).  So many primary care physicians in academia and the community still feel that the best way to “save” primary care is to run crying into Congress’s arms, to beg for even more money, and thus to enhance the dependence on Congressional whim that currently characterizes any practice that is largely dependent on Medicare or Medicaid.

As you might imagine, this wresting of autonomy tends to get some interest groups riled up.

But let’s look at retail clinics!  Capitalizing on patient discontent with the current primary care model, these clinics have been expanding at a rapid clip, and are apparently doing a pretty good job of providing medical care.  This may well be a desirable innovation in the provision of medical services, but that discussion is beyond the scope of this post. Perhaps what’s most surprising:  many of them require patients to pay out of pocket without the possibility of insurane reimbursement.  And patients do!  Patients want to!

What this tells us is really what we knew already:  primary care in the US is not working for patients.  We knew that it’s not working for physicians either.  It’s hard to see how stay-the-course pleading for government largesse is expected to work “this time, really!”

Of course, primary care doesn’t seem to capture much interest among medical students, either.

It’s interesting to think about these debates on how best to save primary care while reflecting on recent conversations with other first-year students.  Somehow, through the crush of almost 200 now-forgotten introductions repeated over the course of the week, I managed to strike up a few conversations on preliminary specialty choice.  Lots of students here, myself included, believe strongly in the importance and the role of primary care medicine.  We just don’t want any part of it in the current system.  What’s more, most of the classmates I asked weren’t entirely familiar with the concept of retainer practice, and it’s doubtful that we’ll be exposed to many role models who function in such a practice.

And that’s a shame.  Orientation was full of lofty verbiage about role models and mentors.  What better way is there to reinvigorate medical student interest in primary care than to expose them to role models who have chosen a practice structure that minimizes the hassles, overhead, and constraints of third-party payment, and instead is focused on what drew all of us to medical school in the first place:  working for the patient?

While it’s too early to talk meaningfully about a specialty decision (though you’re more than welcome to start a betting pool…) it’s not too early for me to say this:  the only way I would seriously consider paediatrics, general internal medicine, or family practice residency in the US is if the retainer model of practice is still viable when it comes time to decide (i.e. hasn’t been banned by law or marginalized by organized medicine).

Of course, I’m fortunate to have Canada as a relatively easy alternate option.  And here’s the kicker.  The phrase “lifestyle specialties” in the US usually refers to the “ROAD to happiness:”  radiology; ophthalmology; anaesthesiology; and dermatology.  [Medical students are big on the mnemonic acronyms]  In Canada?  Well, according to my own physician… it’s family practice.

So close together, but so many worlds apart.

Around the Mediverse: July 8, 2010

July 8, 2010 3 comments

Fun tidbits, health-related and otherwise, from around the ‘tubes:

  • Some questions have emerged about Supreme Court nominee Elena Kagan.  Reason asks if she would ban books.  Bloggers at the Volokh Conspiracy touch on what is arguably Kagan’s political manipulation of a medical specialty society’s statement on abortion.  It should be said that the American College of Obstetrics and Gynecology comes out looking worse than the nominee.
  • Though the response to the Deepwater Horizon spill has arguably been insufficiently aggressive, here are two commentators who argue that children should be taught to better express and receive aggression.
  • What is a “scientific consensus?”  Reason’s Ronald Bailey takes on this issue.  Along the way, we stumble onto this gem of a web page explaining the relationship between animal models of carcinogenic toxicity and the actual exposure of humans to those substances.  Much more non-technical than I made it sound.  Do give it a read if only to attenuate your own “cancer panic” over some of those chemicals.
  • David Williams at the Health Business Blog reminds everyone that hospital visits should be BYOMD.
  • Two recent guest posts at KevinMD point out that the concept of the patient-centered medical home is probably way overhyped, given the current evidence “for” it.

Of red-letter days

July 2, 2010 Leave a comment

July 1 typically marks the beginning of the new academic year in medicine.  Third year students start their clerkships, interns start their first day as “real doctors,” residents become fellows, residents and fellows become attending physicians, and so on.  One hospital at which I shadowed one summer had most of their services drastically reduce the number of patients seen in resident/fellow-run clinics to allow everyone to settle into their new roles, and I’m sure many other academic medical centers do something similar.  Nonetheless, there is an interesting body of research on the “July effect.”  While it’s generally a good idea to stay out of the hospital at all times of year, maybe it’s worth trying extra hard in July?

Of much greater importance however, is that this year, July 1 marks the beginning of the 144th year of a remarkably successful continuous functioning of  peace, order, and good government in the upper reaches of North America (except Alaska).  Happy Canada Day!

A “legal limit” for DUI penalties

April 27, 2010 Leave a comment

In my first “Around the Mediverse” post, I linked to a post at Legal Satyricon that pointed out that driving under the influence of alcohol is a victimless crime, to the extent that not all drunk drivers will cause or be involved in collisions.  I was reminded of that when I saw today’s report that the Canadian province of British Columbia is rolling out tough new penalties for impaired driving, accompanied by the sort of competitive rhetoric that’s usually saved for discussions of equalization payments and/or the Brier.

According to the CBC,

Under the new rules, drivers caught with a blood alcohol level over .08 or those who refuse to provide a breath sample at the roadside will face an immediate 90-day driving ban and a $500 fine.

As well, they will have their vehicles impounded for 30 days and may also face criminal charges, said de Jong in a statement.

Drivers caught once with a blood alcohol level in the warning range — between 0.05 and 0.08 — will face an immediate, three-day driving ban and a $200 fine. Those caught twice in a five-year period face a seven-day ban and a $300 fine; and those caught three times over five years face a 30-day ban and a $400 fine.

Drivers who blow once in the “fail” range or three times in five years in the “warn” range will be required to participate in the Responsible Driver Program. They must also use an ignition interlock device, which tests a driver’s breath for alcohol every time they operate their vehicle, for one year.

What bothers me is the Canada-wide pattern, of which this is the latest manifestation, of increasing penalties for falling in the “warn” range, and the increasing length of administrative license suspensions and vehicle impoundments at all levels.

Don’t get me wrong.  I’m not a fan of drunk driving, and I’m fully aware of the damage caused by drunk drivers.  But as the post at Legal Satyricon points out, the penalties are starting to become grossly disproportionate to the offense.  And there’s a whole world of pain and damage caused by drivers who are young, old, tired, high, distracted, simply unfit, or unlucky.  As with any of these other factors, driving drunk increases the risk of a collision, but it’s no guarantee.  Penalties should reflect this.

Of special concern to me is the increased penalties for testing in the “warn” range; namely, the range of BAC that’s considered “high, but not illegal yet.”  I can understand a short (12-24 hour) administrative suspension to keep them off the roads while they’re in that state, but if it’s not illegal, even that’s a stretch.  I can even understand a fine.  I can also understand fines and slightly longer suspensions for refusing a breath sample.

Increasing penalties for the “warn” range and long-term vehicle seizures both strike me as forays from the safe territory of the corrective/precautionary into the realm of punitive measures beyond the scope of what should be allowed to a process with the due process safeguards of a traffic ticket.

I’m ashamed to say that I’m less familiar with Canadian constitutional issues and thought than I am with their American counterparts, but this still strikes me as a move that might exceed the province’s authority.  Specifically, the criminal law is an area reserved exclusively to the federal government.  While the provinces can pass laws and implement regulations and penalties to enforce things like highway safety, I would consider these changes to be criminal law legislation, though I’m sure reasonable people could disagree.

Canadian constitutional law can be fun.  There exists, for instance, the “pith and substance” approach (i.e. “use your common sense”) for evaluating whether legislation exceeds the bounds of authority given to the level of government in question (evaluating US Commerce Clause defences of the PPACA’s constitutionality using this approach would be hilarious!).

Again, I know little about these topics, but there is some interesting case law on the subject of highway regulations at the provincial level.  Though I doubt it will happen, I hope the Canadian Supreme Court takes up these issues in the near future.  The competition for the strictest, most punitive DUI penalties in Canada is a race to the bottom, constitutionally and morally.  If common sense won’t put a stop to it, with any luck the judicial system will.

Update (afternoon of April 28):  looks like I might not be totally off-base after all.

Categories: Miscellany Tags: , , ,
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