Section 7 of the Charter: a constitutional right to health care? Don't hold your breath.

• Author: Ries, Nola M.

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? Is it a statement of civil liberties or a manifesto of social welfare benefits? (10) Although the distinction between negative and positive rights has been criticized as outdated and artificial, (11) its influence on judicial reasoning is undeniable, as I discuss below.

Judicial Interpretation of Section 7 in the Health Care Context

To date, Canadian courts have rejected the argument that s. 7 imposes a positive obligation on governments to fund specific health care services. Rather, courts have interpreted s. 7 as protecting an individual's right to make fundamental health care decisions free from undue state interference, especially threat of criminal sanction. (12) Cases like R. v. Morgentaler, (13) Rodriguez v. British Columbia, (14) and R. v. Parker (15) clearly invoke negative conceptions of s. 7 rights. In each of these cases, the claimants challenged government intrusion (in the form of criminal prohibitions regarding abortion, assisted suicide and marijuana possession) into their lives and argued individuals have a sphere of autonomy in which government should not interfere. In Morgentaler, this sphere related to women's reproductive choices; in Rodriguez, to decisions about controlling the timing and manner of one's death; and, in Parker, to medicinal use of marijuana to control a disease.

More recently, individuals and groups have attempted to use the Charter to claim a right of access to specific health care services; Cameron v. Nova Scotia (16) and Auton v. British Columbia (17) are two key examples. The prevailing judicial attitude toward this type of s. 7 claim was revealed in Cameron, a case in which an infertile couple sought government funding for costly fertility treatments under ss. 7 and 15 of the Charter. The case turned on s. 15, the equality rights provision, and the trial judge dismissed the s. 7 claim quite summarily, agreeing with the government's submission that "finding the public funding of particular medical services to be considered an element of the right to life, liberty or security of person would expand the parameters of judicial review, well beyond its present scope." (18)

In Auton, children with autism and their parents made ss. 7 and 15 claims seeking government funding for a particular form of treatment for autism referred to as early intensive behavioural intervention. Without appropriate therapy, children with autism may suffer many harms: self-injurious behaviour; inability to communicate effectively with those around them; social isolation and stigmatization; and a likelihood of institutionalization in adulthood. As a result of this poor prognosis, the claimants argued the British Columbia government's refusal to fund early intervention therapy deprived the children of their constitutional rights to liberty and security of the...