Academic journal article Health Law Review

Section 7 of the Charter: A Constitutional Right to Health Care? Don't Hold Your Breath

Academic journal article Health Law Review

Section 7 of the Charter: A Constitutional Right to Health Care? Don't Hold Your Breath

Article excerpt

Introduction

Access to health care services within a publicly funded system, what we know as Medicare, is of undeniable importance to Canadians. (1) In its recent report, the Commission on the Future of Health Care in Canada stressed the value Canadians place on Medicare and described access to public health care as a "right of citizenship." (2) As governments grapple with the challenge of sustaining the Medicare system financially while meeting growing demands for services, individuals and groups seem increasingly willing to turn to litigation under the Canadian Charter of Rights and Freedoms (3) to challenge government decisions to exclude certain services from the roster of publicly funded health care.

In this brief paper, I consider whether the Supreme Court of Canada is likely to interpret s. 7 of the Charter, the provision that guarantees rights to life, liberty and security of the person, as imposing a positive obligation on government to fund specific health care services. (4) I begin with a short overview of arguments typically offered against and for the proposition that s. 7 encompasses positive rights claims. I then review several key cases in which courts have considered the application of s. 7 in a health care context. Finally, I analyse the impact of the Supreme Court's recent decision in Gosselin v. Quebec, (5) where the majority ruled s. 7 does not compel the state to provide a minimum level of social assistance, on claims to a right to publicly funded health care. Ultimately, I conclude the Court is unlikely to expand the interpretation of s. 7 to include claims to health care and, even if it does, the challenge would then lie in defining the scope of that right.

The Debate between Negative and Positive Rights

Section 7 of the Charter provides that "[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with principles of fundamental justice." Breaches of s. 7 may be justified under s. 1 of the Charter, which "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

The debate about whether s. 7 encompasses a right to health care tends to turn on a distinction between negative and positive rights. (6) Proponents of the negative rights theory argue s. 7 protects an individual's right to be left alone and guards against state action that impinges on one's personal autonomy and integrity. (7) On this account, s. 7 does not encompass economic and social claims that depend on positive state intervention. Others argue the rights to life, liberty and security of the person are hollow unless the state bears some obligation to assure conditions in which individuals may enjoy those rights. (8) In regard to a s. 7 claim to health care, Martha Jackman argues, "In practical terms, a right to life and to security of the person is meaningless without access to health care, both in a preventive sense, and in the event of acute illness." (9)

The question boils down to this: is the state's proper place to leave its citizens alone to enjoy the rights they have or is the state actively to provide goods and services so citizens may enjoy rights? Timothy Christian sums up the distinction as follows:

     A negative right is thus the absence of coercion
     which impairs enjoyment of the right. It is to be
     contrasted with a positive right which would
     require the actual provision of the matter to
     which there is a right. An example will make the
     distinction clear. The Charter guarantees the
     right to life. Does this mean that the Charter is a
     barrier protecting everyone against state deprivation
     of their life, or does it mean that there is a
     positive obligation on the state to provide the
     goods and services necessary for the sustenance
     of life? … 
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