Health care and human rights after Auton and Chaoulli.

• Jurisdiction: Canada
• Author: Cousins, Mel
• Date: 01 January 2010

The judicial interpretation of the entitlement to health care under the Charter and human rights legislation has tended to swing between interventionist and non-interventinnist poles. In Eldridge, the Supreme Court of Canada held that a thilure to provide sign language interpretation where this was necessary to ensure equal access to health care was in breach of the equality provisions of the Charter. However, in a subsequent case, Auton, the Court narrowly circumscribed the limits of this approach, holding that the Canadian system of public health care was, by its very terms, a partial health plan. It followed that exclusion of particular non-core .services could not, in itself, be seen as less favourable treatment.

The Chaoulli decision marked a return to a more interventionist approach with the Court holding (by a narrow majority) that the prohibition on private health insurance provided for in Quebec law was inconsistant with section 1 of the Quebec Charter. Tbis judgment has been cited in over eighty decisions of courts and tribunals.

However, just how important has Chaoulli been in terres of the overall approach of the Canadian courts?

The author suggests that Chaoulli--despite its significance in the legislative arena--has had a somewhat limited impact to date on the case law concerning health care, and that Auton has clear[y had a greater impact to date. The author examines several examples from subsequent case law that point to the weakness of the approaches taken in both Auton and Chaoulli. The narrow approach adopted in Auton can lead to equality claims being dismissed without any proper discrimination analysis and shows the manner in which a broad use of the "benefit provided by law" requirement may weaken equality jurisprudence.

Conversely, the case law highlights the fact that the courts will have to reject much more difficult claires than those upheld in Chaoulli unless they wish to develop positive obligations under section 7 of the Charter.

L'interpretation judiciaire du droit a des soins de sante en vertu de la Charte et des instruments legislatifs protegeant les droits de la personne a tendance a osciller entre les poles interventionniste et non interventionniste.

Dans Eldridge, la Cour supreme du Canada a statue que l'omission de fournir une interpretation en langage des signes lorsque necessaire pour assurer un acces egai aux soins de sante constituait une violation des dispositions de la Charte protegeant le droit a l'egalite. Toutefois, dans une affaire subsequente, Auton, la Cour a etroitement circonscrit les limites de cette approche, en affirmant que le regime public de soins de sante canadien est foncierement un regime partiel. Consequemment, l'exclusion de services particuliers non essentiels ne peut, en elle-meme, correspondre a un traitement moins favorable.

L'affaire Chaoulli marque un retour a une approche plus interventionniste. La Cour y affirme par une courte majorite que la prohibition de souscription a nne assurance privee de soins de sante dans la loi quebecoise n'est pas compatible avec l'article premier de la Charte quebecoise. Ce jugement a par la suite ete cite dans plus de quatre-vingts decisinns de cours et de tribunaux. Toutefois, quelle est reellement l'importance de Chaoulli en ce qui concerne l'approche globale des cours canadiennes ?

L'auteur suggere que Chaoulli, malgre son importance dans la sphere legislative, a jusqu'a present eu une influence relativement limitee dans la jurisprudence concernant les soins de sante. Auton demeure clairement a ce jour une decision beaucoup plus influente. L'auteur examine plusieurs exemples de la jurisprudence subsequente qui eclairent la faiblesse des approches respectives retenues dans Auton et dans Chaoulli. D'un cote, l'approche etroite adoptee dans Auton peut mener au rejet de demandes de protection du droit a l'egalite sans veritable analyse de la discrimination alleguee, ce qui montre que l'interpretation large exigeant qu'un <> existe peut affaiblir la jurisprudence sur le droit a l'egalite. D'un autre cote, la jurisprudence souligne que les cours devront rejeter des demandes beaucoup plus exigeantes que celles acceptees dans Chaoulli, a moins qu'elles ne souhaitent developper des obligations positives en vertu de l'article 7 de la Charte.

Introduction I. Health Care and Section 7 of the Charter A. Flora and Medical Care Abroad B. Association pour l'acces a l'avortement and Access to Abortion C. Ali v. Canada--Tax Credits and the Charter II. Health Care and Section 15 of the Charter A. The Judicial Approach to Section 15 and Health Care B. Medical Expense Tax Credits and the Equality Analysis III. Access to Health Care and Human Rights Law A. Buffett--lnfertility Treatment and Gender Discrimination B. Sex Reassignment Surgery--Gender and Disability Discrimination Conclusion Introduction

The judicial approach to the interpretation of the entitlement to health care under the Canadian Charter of Rights and Freedoms and human rights legislation has tended to swing between interventionist and non-interventionist poles. (1) In Eldridge v. British Columbia (A.G.), the Supreme Court of Canada held that a failure to provide sign language interpretation where this was necessary to ensure equal access to health care was in breach of the equality provisions in section 15(1) of the Charter. (2) However, in the subsequent case of Auton (Guardian ad litem of) v. British Columbia (A. G.), the Court rather narrowly circumscribed the limits of this approach. (3) In Auton, the Court held that the failure to provide a particular treatment for autistic children of certain ages was not an infringement of their equality fights. The Court introduced a new requirement in the section 15 analysis: that the benefit claimed be "provided by law". It construed the benefit claimed (specific treatment for autistic children) as "funding for all medically required treatment" but held that such a benefit was not provided by the legislative scheme. (4) The Canadian system of public health care was, by its very terms, a partial health plan and its purpose was not to meet all medical needs. It followed that the exclusion of particular non-core services could not, in itself, be seen as less favourable treatment. Thus the Court appeared to have established a distinction between (1) the obligation to ensure reasonable accommodation so as to allow access for disabled persons to the general health care system and (2) the recognition that the precise scope of the services provided is a matter primarily within the jurisdiction of the legislature. (5)

Many commentators were therefore somewhat surprised when the Supreme Court of Canada in Chaoulli v. Quebec (A.G) (6) held (by a four-to-three majority) that the prohibition on private health insurance in Quebec law was inconsistent with section 1 of Quebec's Charter of Human Rights and Freedoms. (7) Three members of the majority held that the prohibition also violated section 7 of the Canadian Charter and was not justifiable under section 1. This decision has, of course, been the subject of a large volume of commentary and has had an important impact on subsequent legislative developments. (8) It bas also (at the time of writing) been cited in over eighty decisions of courts and tribunals (to mention only those included in the Canlii database). However, just how important bas the Chaoulli decision been in terres of the overall approach of the Canadian courts? Has it marked'a sea change in approach or has business gone on largely as before, with Chaoulli being confined toits own particular facts? This comment examines the relative impact of Chaoulli and Auton in the post-Chaoulli case law on health care and the Charter and/or human rights legislation, and considers what the subsequent case law can reveal about the merits (and demerits) of these important cases. (9)

Part I reviews the case law to date under section 7 of the Charter, while Part II goes on to consider the case law as it concerns section 15(1). Part III considers cases concerning human fights legislation, which may provide a higher level of protection on the grounds listed therein than does section 15(1) of the Charter. Part IV concludes that, with the exception of cases taken under human rights legislation, health care cases post-Chaoulli have been largely unsuccessful. This comment argues that the post-Auton and Chaoulli case law can throw some light on the merits and demerits of those decisions and that, of the two decisions, Auton has clearly had a greater impact to date. This comment suggests that the Supreme Court of Canada may need to revisit its judgment in Auton concerning the scope of section 15(1) so as to achieve its objective of protecting the legislature's authority to determine the scope of educational and health services without undermining the Charter equality analysis. In contrast, Chaoulli has had a somewhat limited impact to date on the case law concerning health care. This comment argues that the subsequent case law indicates that the courts--unless they wish to develop positive obligations under section 7--will have to reject much harder claims than that in Chaoulli. The difficulties of trying to resolve questions of health policy though legal decisions have been emphasized by commentators and (some) judges. However, the fact that a majority of the Court in Chaoulli were prepared to change health policy in a section 7 context while, at the same time, the Court has been very reluctant to challenge policy in a section 15 context, has created a definite tension in the case law that must be addressed.

1. Health Care and Section 7 of the Charter

   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 the principles of fundamental justice." The most important case to date concerning section 7 and access to...