From a legal perspective, the discussion as to whether provincial health administrators could be charged with a violation of the Criminal Code of Canada for facilitating health services-related “queue jumping” is an interesting question.
As a former fraud detective, I couldn’t help but wonder how I would have reacted to a file of this nature had it come across my desk.
In terms of enforcement, the only section of the Criminal Code that might potentially apply is s. 122 c.c. “Breach of Trust by Public Officer”, although several other sections of the Code certainly come into play for the purposes of defining the terms and limitations of this section. The application of s. 122 c.c., however, is problematic for a variety of reasons.
Proportionality
In considering the overall law that might apply to the kind of activity being alleged, I would first consider proportionality. Simply speaking, from an enforcement perspective, the Criminal Code of Canada is “the big hammer”. The principle of aligning the consequences with the relative severity of the act might be best demonstrated when considering traffic enforcement. Section 249(1) of the Criminal Code creates the offense of operating a motor vehicle in a manner “dangerous to the public”. Arguably, most traffic offenses create de facto situations where the public is placed at risk and there are certainly instances where the actions of a driver are so heinous that this Criminal Code section is appropriately applied. In the majority of circumstances, however, even in the event of a collision where there can certainly be significant property damage and often injury, an applicable section of the Traffic Safety Act (TSA) is more correctly applied.
Certainly, facilitating queue jumping with regard to medical services is not “OK”. Having said that, it’s at the top of a slippery slope that includes far more serious related activities. If, for example, it was being alleged that individuals had been given access to rationed medical services concurrently denied to others, or if the activities amounted to a critical triage that could be associated to the long term health or survival of a specific individual, then the enforcement of a Criminal Code statute might be appropriate. Likewise, if an official was deriving a tangible personal benefit from their queue-manipulating activity, then the general principle of proportionality would probably be satisfied in terms of seeking criminal recourse. To date, I don’t believe that any of these aggravating features are being alleged.
Given this set of circumstances, as an investigator, I think my first reaction would be to wonder whether the alleged actions didn’t “fit” better as a violation of a Code of Conduct or similar codified job-specific standard of behaviour. Assuming, for example, that health workers fall under the general category of the “Public Service” then I would review the, “Code of Conduct and Ethics for the Public Service of Alberta” While, frustratingly, the Code of Conduct goes into very little detail in relation to the kind of activity in question, it does stipulate that: “ Employees are expected in all regards to conduct their duties with impartiality.”
The consequences for violation of the Code of Conduct include employment disciplinary measures up to and including job termination.
Given the nature of the allegations, as an investigator, I would probably recommend this approach to my complainant as being more appropriate than pursuing a Criminal Code charge.
Applicability of the Section Itself
The first problem I would have with applying s. 122 c.c. is that it is a very general section and, although it appears to roughly apply, it is s. 121 c.c. that deals specifically, and in detail, with corruption by government officials. As an investigator, if the alleged behaviour was criminal in nature, I would anticipate that the offence would be set out in this section.
To contravene s. 121 c.c., however, the official would need to have been offered, or to have received something for the benefit that they provided. This does not appear to fit the circumstances being alleged with respect to medical queue jumping.
Although a more general section than 121. c.c. it might be a legal error to assume that, although not explicit, s. 122 c.c. does not require that the official receive some reciprocal benefit. Case law suggests that “breach of trust” is generally interpreted to mean using a public position to obtain, directly or indirectly, some benefit or to promote the private ends of the official themselves. If interpreted in this manner, then s. 122 c.c. would no longer “fit” the circumstances being alleged.
In the final analysis, it appears that Parliament has not clearly created a criminal offense in circumstances where a government official creates a benefit for others without the requisite expectation or receipt of any appreciable reciprocal advantage for themselves.
Whether of Not “Duty” applies
My last consideration in deciding whether to launch a criminal investigation into allegations of this nature would be to determine whether there was an actual duty imposed on the official. It is important to understand that, from a legal perspective, the duty should be something that is a specific requirement of the associated “office”. It’s always better if the duty is specified or codified in some way. An employee, for example, has a general duty to show up for work pursuant to the provisions of his/her employment contract. They may also have a duty to submit their work on time, or hundreds of other things that may be categorized as a “duty”, but these things really amount to employment expectations. Notwithstanding the other arguments that I have presented, as an investigator, I would like to know that there was some specific evidence of a duty imposed on the official that I could deliver to the court as an essential ingredient of the charge. Is there a specific duty imposed on any health official to ensure that the health services “queue” is maintained and administered in a certain manner? I’m guessing; probably not.
Recently quoted by the Edmonton Journal, Dr. Sanjeev Anand is correct when he states that law enforcement will likely consider the resource implications of intaking a file of this nature, but with all respect due to Dr. Anand, I disagree that the main problem would involve getting people who have received some benefit to speak with investigators. Attempting to identify or solicit “Whistleblowers” would be the worst possible investigative approach to a file of this nature. The fact that certain individuals have received an advantage will be implicit in the health records themselves. If the sort of favouritism being alleged does exist, then the patterns revealed during a records audit should provide sufficient evidence in this regard. With the collection of system-based evidence, whether an individual subsequently denies or admits that they have received a benefit may become somewhat moot. The problem, from a law enforcement perspective is the scope of the activity and access to the necessary records. Given the enormity of health care, and considering the number of transactions, clients and switch points within the system, an investigation would have to begin by employing advanced analytics against the available data. Furthermore, to detect an anomaly, you would first have to know what an anomaly looks like. There is no indication that the current health care system is sufficiently “self aware” to know what constitutes “out of the ordinary”. These are among the practical investigative problems.
While I cannot speak for the RCMP Commercial Crimes Section, I wonder if they won’t feel that the initiation of a complaint of this nature, made by a political party, doesn’t reduce them to the status of a pawn in what is otherwise a fully political exercise. As an investigator, knowing that I had dozens of files pending, with unassigned files backed up 18 months to 2 years, I would wonder about the political priorities that might exist 36 to 48 months down the road, as this is surely the minimum amount of time it would take to begin the file and then investigative it properly.
Unless, of course, someone could somehow get the file placed at the head of my queue.
