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Using the charter to cure health care: panacea or placebo?

"When the only tool you have is a hammer, every problem begins to resemble a nail."--Abraham Maslow

I. INTRODUCTION

Two generations of Canadians have now lived much of their lives in the protective embrace of public health care. As a result, this comparatively new idea of state-funded health care has become deeply imbedded in the political and social discourse of Canada. In medicare, Canadians have found a reflection of the country's ideals, at the core of which is a social welfare system that provides the fundamentals of life for all citizens, without regard to their status, power, or wealth. Indeed, issues of health care push to the fore of public debate in each Canadian provincial or federal election, and the emotional and political stakes of this conversation are always high.

Parallel to this concretization of state medical aid has been the ascendancy of rights discourse. Michael Ignatieff writes that, because they give the veneer of legal legitimacy to our core values, "rights have worked their way deep inside our psyches. Rights are not just instruments of the law, they are expressions of our moral identity as a people." (1) Rights are a means of talking about a peculiarly liberal conception of human agency, whereby the "right" demarcates a sphere of human interest in which no one, particularly the state, is justified in interfering through deprivation or coercion.

It seems natural, therefore, that health care and rights discourse, both factors constitutive of identity in modern Canadian society, would be destined to entwine. In Canada, the Canadian Charter of Rights and Freedoms (2) has provided the institutional locus for this consort of rights and health. The social stakes of this debate have risen while escalating costs associated with the provision of public health care combined with policies of fiscal restraint have resulted in "cost-containment" measures that seek to limit the nature and scope of medical care provided by government. To many, these cost-containment measures threaten to erode the cherished institution of universal and comprehensive health care. As a result, a number of scholars have argued for the interpretation of the Charter as a document that affords constitutional status to social welfare rights, including rights to health care. (3) Indeed, many point to recent cases in which the courts have appeared to apply the Charter in a manner that supports and affirms individual rights to health care as evidence that Charter litigation can be an effective means of protecting, and even expanding, medicare.

I will argue that a close examination of the case law reveals that the case for such hope is not nearly as strong as may initially appear. The jurisprudence regarding health care betrays the liberal limitations of our Charter and attracts an analytical distinction between the Charter's ability to effectively address the "internal" functioning and provisions of existing medical services and its impotence with respect to the "external" structuring of policy and budget choices about the nature and scope of medical services provided. As a result, I will suggest that our energies are misplaced when we seek to use the Charter to remedy systemic health issues and that, rather, the most desirable and hopeful means of addressing concerns regarding public health care remains political redress.

II. UNIQUENESS OF THE HEALTH CARE "PROBLEM" AND THE SEDUCTIVENESS OF THE CHARTER

The Charter has a number of qualities that make it magnificently attractive to the political or legal activist. First, as has been noted above, the Charter speaks the language of "rights" and rights carry with them the connotation of immutability and supremacy. Once an interest can be characterized as a right, this interest adopts an aura of imperviousness and, with it, a sense of security. Second, the Charter, a constitutional document, is part of "the supreme law of Canada" and as such, "any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." (4) The Charter is, therefore, an avenue to a trump-position in the Canadian legal system. A successful Charter claim is the pinnacle of legal vindication, untouchable as it is by any other legislative act. Associated with this last point is a third and final seductive aspect of the Charter. At a time in which governments seem reluctant to take upon themselves the most exigent and, concomitantly, the most contentious social decisions, the Charter presents a means of binding the actions of government despite itself. Section 32(1) of the Charter establishes the application of its provisions to all government action. Charter litigation can be an expeditious route around slow and seemingly Sisyphean political forms of action. All of these aspects of the Charter--its rights-talk, its legal supremacy, and the fact that it binds government action--create a centripetal social force tending to draw claims for social justice towards the Charter.

It is for these reasons that legal activists have argued that the Charter is a promising tool for remedying health care issues. Martha Jackman observes that "[a]s part of government within the meaning of section 32(1), the laws, policies and actions of federal, provincial/territorial, and municipal departments of health and other government bodies are clearly subject to Charter review." (5) This legal fact, combined with her conception of the Charter as a reflection of "who we wish to be" and her notion of publicly funded health care as a "fundamental aspect of our national character," (6) Jackman seems to make out a case for the Charter as a panacea for Canadian health care concerns. Yet the issue of publicly funded health care has a number of dimensions that make it a particularly demanding social problem. First, it is extremely expensive to fund a public health care program (7) and, as such, any attempt to address perceived deficiencies in medicare must confront the intractable issue of fiscal limitations and government responsibility for expenditure. Second, decisions about the provisions of health care are consummate policy decisions, engaging community assessments of the importance of health care, the appropriateness of public responsibility for individual lives, and the scope and nature of permitted treatment. Finally, matters of health are not purely legal, but intensely polycentric. Not only are issues of law and politics involved in any question of public health care, but education, wealth, and social status are important determinants of health. It follows that any attempt to address health issues must, in order to be effective, move beyond a consideration of individual rights to consider and address each of these diffuse social factors as well as their complex interplay.

These aspects of the health care problem are, I suggest, incommensurable with the foundational ideology that informed the creation and has continued to guide the judicial application of the Charter. In a piece written contemporaneously with Jackman's plea to use the Charter to secure social welfare rights, Allan Hutchinson and Andrew Petter note the following:
 The Charter is, at root, a liberal document. Its enactment was a
 constitutional affirmation of liberal faith. The framework and
 tenor of the Charter reflect traditional liberal values; it arms
 individuals with a negative set of formal rights to repel attempts
 at government interference. (8)


Unpacking this paragraph reveals a number of critical attributes of the Charter whose perpetuation in judicial interpretation have rendered it a blunt instrument for addressing social welfare issues. First, jurisprudence has affirmed that the rights enshrined in the Charter are negative in nature. The Charter has not generally been interpreted as imposing an obligation upon the state for positive action to ameliorate conditions that diminish rights or to take active steps to protect individual interests. Where the Courts have mandated positive actions, this has been within the context of requiring equal application of existing state action rather than forcing the government into entirely new policy or budgetary directions. Second, the Charter is formal in orientation inasmuch as it is concerned with the relationship between extant state action, including legislation, and the impact that these actions can have on the individual. It is, in this sense, solely reactive. Finally, the Charter is atomistic--it is concerned with the rights of the individual in relation to the state, and thus severs the rights-bearing individual from the context in which these very rights and their infringement occur.

Therefore, while medical care involves the expenditure of large amounts of public funds and the creation of complex policies to actively address health issues, the Charter is negative in its orientation. While health care is highly policy-intensive and prospective, the Charter is remedial and formal. And while health involves a complex interaction of social, economic and political determinants, the Charter's atomistic nature looks only to the individual's rights and the actions of the state. The fundamental disconnect between these attributes of the health care "problem" and the dominant characteristics of the Charter is, I suggest, the source of the limited use of the Charter rights in the struggle for public health care. The Charter has only proven an effective instrument where the courts have been faced with past state action that has deprived an individual of existing benefits or protections. As will be demonstrated below through an analysis of sections 7 and 15 jurisprudence, these caveats functionally restrict the Charter to policing the internal operation of the existing health care system. As soon as one turns to the Charter with a plea for expanded care, amelioration of non-legal determinants of health, or policy formation, the Charter has proven desperately ineffective--a placebo at best.

A. Section 7: The Basis for Hope

Section 7 of the Charter guarantees that: "Everyone 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." (9) While the guarantee to "life" has received little judicial elaboration and, as Peter Hogg writes, "has little work to do," (10) the references made in the section to "liberty" and "security of the person" have been unpacked in such a way as to provide a foundation of hope for health care advocates.

New Brunswick (Minister of Health and Community Services) v. G.(J.) (11) and Blencoe v. British Columbia (Human Rights Commission) (12) have recently confirmed that "s. 7 is not limited solely to purely criminal or penal matters" because "[t]here are other ways in which the government, in the course of the administration of justice, can deprive a person of their s. 7 rights to liberty and security of the person." (13) The Supreme Court of Canada has held that the right to liberty delineated in section 7 is engaged whenever "state compulsions or prohibitions affect important and fundamental life choices." (14) A similarly broad interpretation of the guarantee to security of the person has embraced not only physical autonomy, but a right to be free from state actions that "have a serious and profound effect on a person's psychological integrity." (15) Prima facie, this elaboration of the section 7 guarantee affords considerable hope in the sphere of public health. Issues of choice and physical and psychological integrity are core elements in health care and, as such, this social welfare issue would appear to find a comfortable home in section 7 of the Charter. It is this kind of abstracted and principled reading that gives an air of plausibility, if not persuasiveness, to Jackman's claim that "a right to life and to security of the person is meaningless without access to the care necessary for sustaining reasonable health." (16)

As will be discussed below, the second half of section 7, which provides that an individual can be deprived of these rights "in accordance with the principles of fundamental justice," imposes an internal limitation upon those interests that section 7 seems to protect. While "there is strong evidence to suggest that, at the time of the Charter's adoption, it was widely believed that the phrase 'principles of fundamental justice' was restricted to procedural values," (17) the Supreme Court of Canada has made clear that this term gives courts the power to investigate the substantive, as well as procedural, soundness of an impugned provision. In Reference re Motor Vehicle Act (British Columbia) s. 94(2), (18) Lamer J. (as he then was) stated that "the principles of fundamental justice are to be found in the basic tenets of the legal system" (19) and in Cunningham v. Canada, (20) McLachlin J. (as she then was) stated that "fundamental justice" required an assessment of "whether, from a substantive point of view, the change in the law strikes the right balance between the accused's interests and the interests of society." (21) It would appear, therefore, that the courts are empowered to consider both the procedural fairness and the substantive merits of an impugned provision when assessing whether or not a deprivation accords with fundamental justice. This expansive scope of review is, again, encouraging to the health care advocate.

1. The Apparent Successes

A survey of the case law provides examples that would seem to affirm the potential usefulness of section 7 in the health care context. In R. v. Morgentaler, (22) the Supreme Court of Canada was asked to consider the constitutionality of section 251(4) of the Criminal Code, (23) which made it a crime for a doctor to perform an abortion for a woman that did not have a certificate from a therapeutic abortion committee of a hospital. The Court was divided 5-2 on the issue. The justices comprising the majority issued three concurring opinions declaring the provision unconstitutional. Chief Justice Dickson, with whom Lamer J. concurred, concluded "beyond any doubt that s. 251 of the Criminal Code is prima facie a violation of the security of the person of thousands of Canadian women who have made the difficult decision that they do not wish to continue with a pregnancy." (24) Chief Justice Dickson forcefully stated:
 At the most basic, physical and emotional level, every pregnant
 woman is told by the section that she cannot submit to a generally
 safe medical procedure that might be of clear benefit to her unless
 she meets criteria entirely unrelated to her own priorities and
 aspirations. Not only does the removal of decision-making power
 threaten women in a physical sense; the indecision of knowing
 whether an abortion will be granted inflicts emotional stress.
 Section 251 clearly interferes with a woman's bodily integrity in
 both a physical and emotional sense. Forcing a woman, by threat of
 criminal sanction, to carry a foetus to term unless she meets
 certain criteria unrelated to her own priorities and aspirations,
 is a profound interference with a woman's body and thus a violation
 of security of the person. (25)


Wilson J. was even more categorical in her characterization of the effects of the criminal prohibition, stating that a woman subject to this provision
 is the passive recipient of a decision made by others as to whether
 her body is to be used to nurture a new life. Can there be anything
 that comports less with human dignity and self-respect? How can a
 woman in this position have any sense of security with respect to
 her person? (26)


Accordingly, inasmuch as this provision compromised the ability of an individual to make a fundamental life choice, section 251 interfered with security of the person and the Court was willing to strongly affirm the rights of a woman to have control over what was done medically with her body.

The decision in Morgentaler was equally clear on the issue of fundamental justice. The Court interrogated the procedure for obtaining a valid certificate that would permit an abortion under section 251. Both Dickson C.J.C. and Beetz J. identified failures in delay, access, and equal geographical application of the law such that even women who fit within the criteria delineated in section 251 might well be unable to secure the necessary certificate. As a result of these procedural shortcomings, Dickson C.J.C. concluded that the defence provided by the section (that is, obtaining a certificate from a therapeutic abortion committee) was "illusory or so difficult to attain as to be practically illusory," (27) and, as such, section 251 was inconsistent with the principles of fundamental justice.

While Dickson C.J.C. left open the broader question of whether "the deprivation of a pregnant woman's right to security of the person can [ever] comport with fundamental justice," (28) Beetz J., with whom Estey J. concurred, decided the issue somewhat more narrowly, holding that "[i]t is only in so far as the administrative structure creates delays which are unnecessary that the structure can be considered to violate the principles of fundamental justice." (29) Justice Wilson was prepared to go much further, arguing that the restriction in question offended the principles of fundamental justice not only owing to its procedural flaws, but because section 251 also infringed upon the pregnant woman's freedom of conscience. She alone took the position that "a deprivation of the section 7 right which has the effect of infringing a right guaranteed elsewhere in the Charter cannot be in accordance with the principles of fundamental justice." (30) In the result, however, Morgentaler unequivocally affirmed the right of women to have control over this aspect of their medical care and, at the minimum, not to be subjected to undue delay or geographical limitations in the exercise of their choice.

Another encouraging result can be found in Fleming v. Reid, (31) a decision of the Ontario Court of Appeal. The applicants, having been found not criminally responsible by reasons of mental infirmity, were involuntary patients at a mental health facility. Both patients, while competent, had indicated that they would refuse treatment with a particular drug because, based upon their past experience with it, they considered the side-effects intolerable. The treating physician subsequently found both patients to be incapable of making decisions regarding their own treatment and turned to their substitute decision-makers for approval to administer the drug in question. The substitute decision-maker, who was required by statute to take into account the previously communicated competent wishes of the patients, refused to give consent. Following the prescribed procedure, the physician appealed to a review board which, not bound to take into account the competent wishes of the patients, allowed the doctor to proceed with the treatment.

The patients alleged that their section 7 rights had been infringed and the Ontario Court of Appeal agreed. Justice Robins, for the Court, stated:
 The common law right to bodily integrity and personal autonomy is
 so entrenched in the traditions of our law as to be ranked as
 fundamental and deserving of the highest order of protection. This
 right forms an essential part of an individual's security of the
 person and must be included in the liberty interests protected by
 s. 7. (32)


Having established this contravention, Robins J.A. considered whether or not this deprivation was in accordance with fundamental justice. He observed that the governing legislative scheme that constituted the review board "purports to recognize the prior known competent wishes of incompetent patients and to ensure that those wishes are respected," but then renders these wishes irrelevant when the issue reaches the review board. (33) The Court held that this flaw was not in accordance with fundamental justice and, therefore, section 7 had been offended.

Both Morgentaler and Fleming are strong affirmations of health care rights. In deciding as they did, both Courts invoked section 7 to protect patient choice and autonomy. However, these decisions must be further interrogated in order to assess the true scope of their protection. In both cases, the Courts were confronted with legislation--state action--that interfered with the individual by depriving those involved of liberty and security of the person. The atomistic relationship between individual and state was clear and the courts were asked to protect the applicants' "freedom from"--to ensure their negative liberty by repelling this state action from the individual's sphere of autonomy. As to the question of fundamental justice, both Courts identified procedural flaws, one in the Criminal Code and one in mental health legislation, that rendered the administration of health care unfair in its operation. All of these characteristics firmly imbed both of these decisions in the internal operation of health care. Both address how the state conducts itself within the scope of an existing scheme. They concern failings in the already extant structure and take action to remedy these defects.

I will demonstrate below that section 7 has little impact upon the external regulation and formation of health care. When the alleged deprivation is sourced in something other than the government's legal action or when the procedures surrounding a deprivation are sound and carefully constructed with a purpose that the court can construe as reasonable, the Charter's application in the health care context is eviscerated.

2. The Limiting Factors--Economics and Fundamental Justice

Recent jurisprudence has imposed two substantial limitations on the ability of section 7 to address more systemic or external aspects of the provision of public health care. The first, definitional in nature, excludes deprivations of an economic nature from the embrace of the word "deprived" found in section 7. The second, more operational in nature, arises because of the broad justificatory latitude that has been injected into the "principles of fundamental justice."

In Whitbread v. Walley, (34) the British Columbia Court of Appeal considered a plaintiff's claim that a provision of the Canada Shipping Act (35) limiting liability of masters and members of the crew had the effect of depriving the plaintiff of full recovery for an injury sustained on board a ship, thereby contravening his section 7 rights. While this case was not directly concerned with the provision of health care, the principle that it established and its broad acceptance has had a significant impact upon the application of section 7 in matters of public medical assistance. For a unanimous Court, McLachlin J.A. (as she then was) held that the absence of property rights within the language of section 7 meant that "legislation or state action which is entirely economic falls outside the scope of section 7." (36) Recognizing that economic activity can have an impact upon the interests that are enumerated in section 7, McLachlin J.A. nevertheless held that, "[w]hile money ... may almost always be argued to affect a person's liberty and security, that is an indirect and incidental effect not contemplated by s. 7 of the Charter." (37) This conclusion effectively bars the application of any section 7 claims to deprivations of life, liberty or security of the person that can be characterized as having their source in economic constraints or inequality.

Widely cited with approval, (38) Whitbread has been decisive in its impact upon section 7 claims relating to the provision of health care. In Brown v. British Columbia (Minister of Health), (39) Coutlas J. was presented with a case in which the plaintiffs challenged the province's decision to place the drug AZT on the Pharmacare list; a decision that had the result of requiring patients in need of AZT to pay for a portion of the cost of this highly expensive drug. The plaintiffs claimed that "the decision to place AZT on the plan violates their security because it affects their health, both physically and psychologically, imposing stress, stigma, perception of discrimination and loss of self esteem." (40) Justice Coutlas did not deny that these interests were adversely affected by the government's policy choice; (41) rather, he found that the deprivation alleged was economic in nature and that "[the plaintiffs'] position does not differ from the position of any person in this province who must survive on a low income." (42) Expressly following Whitbread, Coutlas J. concluded that because the deprivation was economic in nature such that an increase in funding would remove the deprivation, "the plaintiffs are seeking a 'benefit' which may enhance life, liberty or security of the person, which s. 7 cannot provide." (43)

A strikingly similar conclusion was reached in Ontario Nursing Home Association v. Ontario. (44) In this case, before the Ontario High Court of Justice, a patient in a nursing home was seeking a declaration that his section 7 rights were violated because "homes for the aged" and "rest homes" received more funding than nursing homes. Again, Holland J. acknowledged that the patient's section 7 interests in life, liberty, and security of the person were affected. But the plaintiffs were seeking an economic benefit and, accordingly, their claim was not within the ambit of section 7's protection:
 It is true that with greater funding he might receive more care,
 but it cannot be said that he is being deprived of his rights to
 life, liberty or security of the person. The section does not deal
 with property rights and as such does not deal with additional
 benefits which might enhance life, liberty or security of the
 person. (45)


Able to find the source of the adverse effects in economic rather than legal disadvantage, both Coutlas and Holland JJ. construed the alleged deprivation as an economic benefit sought and, therefore, denied the Plaintiffs the protection of section 7.

Yet even where an applicant has been able to satisfy a Canadian court that he or she has been deprived of rights to life, liberty, and security of the person, the section's internal limitation permitting deprivations in accordance with "the principles of fundamental justice" has proven a substantial limitation on the application of section 7 to health care issues. In the famous case of Rodriguez v. British Columbia, (46) Sue Rodriguez was suffering from a rapidly deteriorating disease that, before killing her, would render her incapable of speech, swallowing, walking, or moving at all without aid. She desired assistance to commit suicide and sought a declaration that section 241(b) of the Criminal Code violated her section 7 rights and, as such, was unconstitutional. Section 241(b) prohibited individuals from helping others to commit suicide. Like Morgentaler, this case involved criminal legislation that the Court found deprived Rodriguez of her security rights. However, the majority of the Court was unable to find any procedural flaws in the legislation and this conclusion, compounded with a reluctance to declare the government's apparent purpose as contrary to public policy, disposed of the case:
 Given the concerns about abuse that have been expressed and the
 great difficulty in creating appropriate safeguards to prevent
 these, it can not be said that the blanket prohibition on assisted
 suicide is arbitrary or unfair, or that it is not reflective of
 fundamental values at play in our society. I am thus unable to find
 that any principle of fundamental justice is violated by s. 241(b).
 (47)


So despite the acceptance that "the principles of fundamental justice are concerned with more than process," (48) absent some formal procedural defects in the legislation, the Court refused to second-guess Parliament's policy choice and, as a result, allowed Rodriguez to be deprived of her right to security of the person. Rodriguez asked the courts to protect her rights in a positive manner by forcing a shift in government policy, but this plea was overcome by the formal nature of Charter rights jurisprudence.

This formalistic focus on the procedural aspects of impugned legislation can also be found in the initial decision in Wakeford v. Canada. (49) Wakeford was suffering from AIDS and found that the only drug that could relieve him of the difficult side-effects associated with his AIDS treatment was marijuana. The Applicant asked Laforme J. to find that the prohibition of possession of marijuana contained in the Controlled Drugs and Substances Act (50) offended his section 7 rights and, therefore, was unconstitutional. Justice Laforme decisively agreed that the legislation contravened the applicant's rights to liberty and security of the person:
 [Wakeford] has found a treatment that allows him to ease his
 suffering, assist in his overall medical treatment, and perhaps
 assist in prolonging his life.... In my view it is enough that Mr.
 Wakeford chooses to treat his illness in the manner he has, which,
 in my view, he is constitutionally entitled to. The CDSA, by
 denying him that right, I find, infringes upon his right to
 security of the person. (51)


Nevertheless, "Parliament [had] provided a specific means for individuals to apply for exemptions and that must be exhausted prior" (52) to seeking relief from the Court. Justice Laforme, without regard to the substantive merits of the deprivation as mandated by Cunningham, found that the legislation provided a potentially sound procedure and, as such, fundamental justice was not offended. The formalistic and procedural interpretation of the "fundamental justice" limit again precluded a vindication of the right to liberty and security of the person.

3. Prognosis

Past judicial application of section 7 to the health care field has affirmed that the liberal foundations of the Charter continue to shape its utility. Only where an applicant can demonstrate that a health-related interest is non-economic in nature and sourced in the official activity of the state, will the courts be prepared to acknowledge a prima facie infringement of life, liberty, or security of the person. Even if this hurdle is surmounted, the applicant will have to defeat the formalistic emphasis upon procedure that dominates the discussion around "fundamental justice." Atomism, negative liberty, and formalism are alive and well in section 7's intersection with health care. As a result, while the Charter may well serve to police the internal administration of existing health care programs (as in Morgentaler and Fleming), when the borders are pushed--when the external matters such as policy and funding are engaged--section 7 promises little.

B. Section 15: The Basis for Hope

Section 15(1) of the Charter has also received a great deal of attention from health care advocates and heath law scholars. Section 15(1) states:
 Every individual is equal before and under the law and has the
 right to the equal protection and equal benefit of the law without
 discrimination and, in particular, without discrimination based on
 race, national or ethnic origin, colour, religion, sex, age or
 mental or physical disability. (53)


The language of "equality before and under the law" offers a hopeful fusion between the Charter and the concepts of universality and equal access that have become so imbedded in heath care discourse. Jackman has advocated for the use of this section in the protection of social welfare rights (54) and Richard Haigh has fashioned a section 15 argument for the expansion of medical services to include alternative health care. (55)

With its recent decision in Law v. Canada, (56) the Supreme Court sought to consolidate and clarify section 15 jurisprudence. The Court held that the purpose of this section is
 to prevent the violation of essential human dignity and freedom
 through the imposition of disadvantage, stereotyping, or political
 or social prejudice, and to promote a society in which all persons
 enjoy equal recognition at law as human beings or as members of
 Canadian society, equally capable and equally deserving of concern,
 respect and consideration. (57)


The Court went on to state that "human dignity" is concerned "with physical and psychological integrity and empowerment." (58) This reference to physical and psychological integrity as a core element of section 15 is, no doubt, fertile soil for a health law advocate.

The Court then described the comparative approach appropriate to a section 15 analysis (59) and set out the following three questions that must be answered in the affirmative for a section 15 claim to be made out:

(1) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?

(2) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?

(3) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration? (60)

To the extent that ill-health or some other personal characteristic can be identified and failures in the public health system can be characterized as imposing a burden or withholding a benefit, the basis for optimism arising from this section is evident.

1. Apparent Successes

A number of cases have seemingly borne out this insipient promise. I will examine two examples of these health care "victories" won under section 15 before considering the limitations that arise. First, and most famously, is Eldridge v. British Columbia. (61) In this case, the appellants, born deaf and whose preferred means of communication was sign language, sought care in a B.C. hospital. No interpreter was made available, and the appellants argued that the hospital's failure to provide interpretation services impaired their ability to communicate with their doctors and other health care providers. This impairment, they contended, interfered with their ability to access effective medical treatment--a benefit denied to them on the basis of a physical disability.

The Court was unanimous and unequivocal in its vindication of these patients' rights. Justice La Forest, writing for the Court, noted that it was insufficient that, on its face, the B.C. medical system treated all individuals equally; no interpretation services were provided for anyone. This, he argued, was a case of adverse effects discrimination that stemmed from "a failure to ensure that they benefit equally from a service offered to everyone." (62) The Court asserted that "[e]ffective communication is quite obviously an integral part of the provision of medical services" (63) and the failure to provide sign-language translation denied the appellants the benefit of these services. Justice La Forest reasoned as follows:
 If there are circumstances in which deaf patients cannot
 communicate effectively with their doctors without an interpreter,
 how can it be said that they receive the same level of medical care
 as hearing persons? Those who hear do not receive communication as
 a distinct service. For them, an effective means of communication
 is routinely available, free of charge, as part of every health
 care service. In order to receive the same quality of care, deaf
 persons must bear the burden of paying for the means to communicate
 with their health care providers, despite the fact that the system
 is intended to make ability to pay irrelevant. Where it is
 necessary for effective communication, sign language interpretation
 should not therefore be viewed as an "ancillary" service. On the
 contrary, it is the means by which deaf persons may receive the
 same quality of medical care as the hearing population. (64)


Accordingly, the appellants' section 15 rights had been breached. The Court went on to consider whether or not this breach could be justified under section 1. Justice La Forest held that, even assuming that the impugned actions passed the other sections of the Oakes (65) analysis, the government had failed at the minimal impairment stage. The government had not shown that a complete denial of translation services was the least rights-derogating means of achieving their purpose of containing health care costs. The result was a strong vindication of rights to equal access to health care, achieved through the vehicle of section 15.

Knodel v. British Columbia (66) presents another example of health care interests being protected through the equality protection of the Charter. The Medical Services Act (67) set out a framework into which medical insurance suppliers were obliged to fit their programs. A regulation enacted pursuant to this statute defined the term "spouse" as applying exclusively to a man and a woman who, regardless of whether or not they are legally married, live together as husband and wife. The petitioner, Knodel, was a gay man whose partner, by operation of this regulation, was precluded from benefiting from the petitioner's health policy as a dependent spouse. Knodel sought a declaration that section 15 required that the term "spouse" be interpreted to include same-sex partners.

Justice Rowles found that the exclusion of homosexual couples from the definition of "spouse" was contrary to section 15. The legislation imposed an economic penalty on homosexual couples by denying a benefit available to heterosexual couples. (68) Since the government had conceded that section 1 could not save the contravention, the term "spouse," Rowles J. held, should be interpreted to include same-sex couples. Justice Rowles' decision seems to afford section 15 protection to even economic interests in health care and appears at first blush to be a strong vindication of health care rights.

Yet once again, these apparent successes are, on closer examination and in light of other case law on the topic, far more limited than they initially appear. There is little doubt these cases represent victories for the equal internal operation of health care programs and, as such, are commendable. However, both involve questions of access to existing services whose provision is procedurally flawed by inappropriate government action. Justice La Forest's careful characterization of the petitioners' claim in Eldridge is telling:
 Their claim is not for a benefit that the government, in the
 exercise of its discretion to allocate resources to address various
 social problems, has chosen not to provide. On the contrary, they
 ask only for equal access to services that are available to all.
 (69)


It seems critical to the Court's decision that this case involved the internal regulation of access to existing services and not a petition for an expansion of services or increased health benefits. In both cases, the government's legal action--in Eldridge the regulation of access to services and in Knodel direct legislative measures--were the clearly identifiable source of the inequality and not questions of policy or funding. Both cases redeem the individuals' negative freedom from discrimination but say nothing of a positive obligation upon the government to remedy social and economic inequalities--the systemic determinants of health and health care.

Parallel in this way to section 7, the jurisprudence relating to health care under section 15 demonstrates that, while an effective tool for remedying internal procedural defects in the provision of public health care--that is, inequities in the administration of existing and accepted health services--section 15 is a blunt instrument in relation to the external structuring and scope of health care. When claims are made under section 15 to expand health care or refine policy in pursuit of more effective treatment, the Charter simply cannot respond.

2. The Limiting Factors--Legal Sources of Inequality and Government Objectives

Case law reveals that health-related claims argued through section 15 that seek to affect the structuring of medical services or the policies informing public health care--that which I have called external elements of the health system--are presented with two substantial barriers. First, in fidelity to the liberal roots of the Charter, the courts have adopted a highly formalistic approach to the language of "before and under the law," thereby excluding claims early in the section 15 analysis. Second, and a cousin to the "fundamental justice" barrier found in section 7, the broad justificatory opportunity presented by section 1 is amenable to high degrees of deference with respect to decisions of government regarding the public purse.

Fernandes v. Manitoba (70) was a case heard by the Manitoba Court of Appeal. Fernandes was confined to a wheelchair and required sixteen hours attendant care each day. When his relationship with his girlfriend, who had been providing this care, ended, he was admitted to a hospital. Fernandes wanted to live in the community, but there were no vacancies in the state-sponsored community residences and he could not afford his own attendant care. He applied to the Director of Income Security for a supplementary allowance to hire a care-giver so that he could return home, but was refused on the grounds that he was receiving adequate care in the hospital.

Justice Helper, for a unanimous Court, held that the applicant had no section 15 claim because the law was not the source of his deprivation. Section 15, she reasoned, is solely concerned with equality "before and under the law" and there was no law here that was treating him unequally. Rather,
 [u]nder the Act, Fernandes is being treated in the same manner as
 all applicants for an allowance. He is receiving all basic
 necessities as required by the Act. All his needs are being met. He
 is not receiving unequal treatment under the law. The fact that he
 is not being housed in a facility of his choice does not give rise
 to a determination that he is deprived of equal protection and
 benefit before and under the law. (71)


The failure to provide a supplementary benefit did not amount to discrimination. The Court took no account of the relative access to home care for the rich and poor, and gave no consideration to the inequality in choice of housing between able-bodied individuals and those with disabilities. These factors could not be characterized as formally "legal" and, accordingly, fell outside the section 15 protection.

Similar reasoning led to the Court's decision in Rogers v. Faught. (72) While being treated by a dentist, Rogers experienced severe pain in her TMJ (temporomandibular joints). Women suffer disproportionately from TMJ pain and Rogers discovered that neither the Royal College of Dental Surgeons nor the College of Dental Hygienists had developed policies or treatment guidelines in recognition of this fact. She claimed that this failure to take into account the particular needs of women when undergoing dental treatment contravened her section 15 rights. Both colleges were clearly bound by the Charter, (73) but the Court denied that section 15 was engaged and, accordingly, struck the pleadings. The Court reasoned that "[t]he failure to act or omission by the Colleges to develop programmes and standards of practice is not a 'law' or 'government action' within the meaning of s. 15 of the Charter," and that "[a]ccordingly the necessary precondition of a law giving rise to inequality is not asserted." (74)

Not only is this conclusion one that interprets the section in a formalistic and narrow fashion, but this case evidences the seemingly inexorable tendency of the courts to recoil from positive rights claims. In Rogers, the Court refused to use the Charter to force policy change, in part because Rogers, in a manner more consistent with positive rights thinking, sought "to impose an obligation on a legislature or government to root out all situations where there may be systemic discrimination and to legislate to remove the discrimination." (75) Yet even in circumstances where applicants are able to fit their claims within section 15, a similar reticence to interfere with policy decision, particularly those involving budgetary expenditures, thwarts the applicant at the section 1 stage. (76)

In Cameron v. Nova Scotia, (77) the applicants were an infertile married couple who sought reimbursement of their expenses for cytoplasmic sperm injection, a special form of in vitro fertilization (IVF). They claimed that the government's refusal to pay for this form of IVF constituted discrimination based on physical disability (their inability to conceive). The Court agreed, stating that
 the appellants belong to the group which may be classed as the
 infertile who need, but do not get, the full array of services for
 reproduction. The comparative group is the fertile who need, and do
 get, the full array of services for reproduction. The policy
 reinforces the disadvantage of the infertile. (78)


A clear section 15 violation had been made out. Yet when the Court turned its attention to section 1, it gave complete deference to the need of policy-makers for "latitude in balancing competing interests in the constrained financial environment." (79) The Court characterized the government's pressing and substantial objective as "being to provide the best possible health care coverage to Nova Scotians in the context of limited financial resources" (80) and found that the government had satisfied all elements of the Oakes test.

Section 15 interests did not stand up against the pressures of financial constraint and the Court was loathe to force the government to alter its policy where budgetary issues would be engaged. Although the Court in Eldridge stated that "financial considerations alone may not justify Charter infringements," this statement was significantly qualified by the direction that "governments must be afforded wide latitude to determine the proper distribution of resources in society." (81) Cameron is suggestive of the true breadth of this latitude. Financial constraint combined with well-tailored policy is, it appears, a full answer to a claim of abuse of section 15 rights. The atomism of this decision fully segregates issues of economic disadvantage from legal rights to equality. The Court refused to impose upon the government a positive obligation to use its money to relieve inequality; indeed, quite the opposite--the fact that the Charter claim necessarily engaged the public purse amounted to a bar to the vindication of the applicants' rights. Leave to appeal to the Supreme Court of Canada was refused. (82)

3. Prognosis

Section 15 is highly effective when invoked to remedy an inequality in the provision of extant policies or services. Eldridge and Knodel are strong examples of this use of the Charter for that purpose. Yet this is where the section's utility ends when applied in the health care context. The legal formalism of the courts combined with a firmly negative approach to rights narrows the application of section 15 to only those inequalities that are sourced in the law and do not require policy formation or interrogation of a government's budgetary choices. As Fernandes and Rogers evidence, even where a government body is bound by the Charter, if an alleged inequality can be viewed as having arisen from "external" constraints, such as economics, or requires positive action on the part of the state, section 15 will be a far less effective tool. Additionally, the government has a permanent ace up its sleeve in the form of pleas of fiscal constraint. The Cameron decision suggests that a rights violation flowing from legislative action that has as its purpose cost containment will be readily justifiable under section 1. The result is that where section 15 of the Charter is invoked to address "external" health care concerns such as scope of care and coverage, medical policy, and the desirability of particular forms of treatment, the prospective impact of the Charter again proves bleak.

III. CONCLUSION--THE CHARTER AND THE LEGALIZATION OF HEALTH CARE

The foregoing is far from a blanket condemnation of the use of the Charter in the health care context. Indeed, I have sought to demonstrate that the Charter has a degree of usefulness as a legal mechanism for controlling some aspects of the health care system. Cases such as Fleming and Eldridge demonstrate that legal action can provide substantial improvements to the operation of the existing system. But the Charter is effective for correcting these internal processes precisely because these cases mesh well with the liberal nature of the courts' interpretation of Charter rights. Where there are formal or procedural problems with a state action that impinges on the negative liberty of an individual, the Charter can rise to the occasion. In cases where positive conceptions of liberty, policy and budget decisions, or economic determinants of health are involved, the Charter evinces limited utility.

This internal/external analytical distinction is not simply academic hairsplitting; rather, there is a critical reason why this conceptual clarity is necessary. Use of the Charter in some contexts can be far more than merely unsuccessful--it can be harmful to the furtherance of social justice. By Charterizing health care issues, the polycentric nature of the social problems are masked. Economic, class, (83) and social determinants of health care are concealed behind the rhetorical veil of legal rights discourse and, in this marginal position, are not identified, elaborated or addressed. Michael Mandel persuasively argues as follows:
 The beauty of the Charter ... is that it appears to depoliticize
 politics. In form, it replaces "conflicts of interest" with
 "matters of principle." It is easy to understand why this appeals
 to actors on the right, because it allows power to disguise itself
 in the abstraction of claims about rights. (84)


Accordingly, in the context of health care, the broadly political nature of the issues involved goes unaddressed. This masking is inherent in the liberal essence of the Charter and makes recourse to the courts a very limited means of health care advocacy.

It follows that lasting and effective change to the Canadian health care system lies with political advocacy and engaging in public debate. Having reviewed the applicability of the Charter in securing access to alternative medicine, Haigh rightly observes that "[i]n many cases consumer advocacy can be just as successful, less expensive and less controversial or politically uncertain than complex constitutional argument before the courts." (85) A poignant example of this truth arises from the Morgentaler case. Though it stands as a "health care victory" won under the Charter, what was the practical effect of the legal vindication of women's rights to have non-therapeutic abortions? Sandra Rogers notes that, even following the decision in Morgentaler, access to abortions services "remains problematic." (86) Only four provinces pay for clinic-based abortions and no abortions whatsoever are performed in P.E.I. Anti-abortion violence in the wake of Morgentaler had exacerbated access issues and women in rural and remote areas are still consigned to expensive, trying, and long-distance travel to find the services they need. Morgentaler did not--and could not--address public opinion, fiscal management, or any other of the non-legal determinants of health care and, as a result, the victory has a somewhat pyrrhic aura about it.

Political and social mobilization holds the distinct advantage of being able to address the varied sources of ill-health and multiple barriers to health care in a manner the courts simply cannot. For all of the promise that the Charter holds, "[t]he Charter does not alter a basic historical fact: namely, progressive change follows from mobilization and organization by oppressed and disempowered people." (87) With limited resources and the clear exigency of the issue, the energy of advocates seeking fundamental changes in the orientation, structuring, and funding of health care should be directed not to the law courts and the Charter, but to the court of public conscience, political will, and social action.

(1) M. Ignatieff, The Rights Revolution (Toronto: Anansi, 2000) at 2.

(2) Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].

(3) See especially M. Jackman, "Poor Rights: Using the Charter to Support Social Welfare Claims" (1993) 19 Queen's L.J. 65.

(4) Constitution Act, 1982, s. 52, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

(5) M. Jackman, "The Application of the Canadian Charter in the Health Care Context" (2000) 9 Health L. Rev. 22 at 23.

(6) M. Jackman, "The Protection of Welfare Rights under the Charter" (1988) 20 Ottawa L. Rev. 257 at 338.

(7) The Canadian Institute for Health Information "estimates that the cost of health care topped $95 billion in 2000." CIHI, Health Care in Canada: 2001 (Ottawa: CIHI, 2001) at 71.

(8) A.C. Hutchinson & A. Petter, "Private Rights/Public Wrongs: The Liberal Lie of the Charter" (1988) 38 U.T.L.J. 278 at 283.

(9) Supra note 2 at s. 7.

(10) P.W. Hogg, Constitutional Law of Canada (Toronto: Carswell, 2000) at 906.

(11) New Brunswick (Minister of Health and Community Services) v. G.(J.)., [1999] 3 S.C.R. 46 [G.(J.).].

(12) Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 [Blencoe].

(13) Supra note 11 at para. 65.

(14) Supra note 12 at para. 49.

(15) Supra note 11 at para. 60.

(16) M. Jackman, "The Right to Participate in Health Care and Health Resource Allocation Decisions under Section 7 of the Canadian Charter" (1995) 4 Health L. Rev. 3 at 3.

(17) R.J. Sharpe & K.E. Swinton, The Charter of Rights and Freedoms (Toronto: Irwin Law, 1998) at 137.

(18) Reference re Motor Vehicle Act (British Columbia), s. 94(2), [1985] 2 S.C.R. 486 [B.C. Motor Vehicle Reference].

(19) Ibid. at 503.

(20) Cunningham v. Canada, [1993] 2 S.C.R. 143.

(21) Ibid. at 152 [emphasis added].

(22) R. v. Morgentaler, [1988] 1 S.C.R. 30 [Morgentaler].

(23) Criminal Code, R.S.C. 1985, c. C-46, s. 251(4) [Criminal Code].

(24) Supra note 22 at 56.

(25) Ibid. at 56-57.

(26) Ibid. at 173-74.

(27) Ibid. at 70.

(28) Ibid. at 73.

(29) Ibid. at 114.

(30) Ibid. at 175.

(31) Fleming v. Reid (Litigation Guardian) (1991), 82 D.L.R. (4th) 298 (Ont. C.A.) [Fleming].

(32) Ibid. at 312.

(33) Ibid. at 317.

(34) Whitbread v. Walley (1988), 51 D.L.R. (4th) 509 (B.C.C.A.) [Whitbread], aff'd on other grounds [1990] 3 S.C.R. 1273.

(35) Canada Shipping Act, R.S.C. 1985, c. S-9.

(36) Supra note 34 at 520.

(37) Ibid. at 522.

(38) See e.g. Conrad v. Halifax (County) (1993), 124 N.S.R. (2d) 251 (S.C.).

(39) Brown v. British Columbia (Minister of Health) (1990), 66 D.L.R. (4th) 444 (B.C.S.C.) [Brown].

(40) Ibid. at 465-66.

(41) Although this was not ultimately the basis for his decision he did, however, suggest that the deprivation "lies in the fact that they are infected with a debilitating and incurable disease," not in government action (ibid. at 466-67). This obiter is analytically dubious at best, particularly in light of Sopinka J.'s statement in Rodriguez that "[a]s a threshold issue, I do not accept the submission that the appellant's problems are due to her physical disabilities caused by her terminal illness, and not by government action" (infra note 46 at para. 128).

(42) Ibid. at 467.

(43) Ibid. at 469.

(44) Ontario Nursing Home Assn. v. Ontario (1990), 72 D.L.R. (4th) 166 (Ont. H.C.J.) [Ontario Nursing Home].

(45) Ibid. at 177.

(46) Rodriguez v. British Columbia (A.G.), [1993] 3 S.C.R. 519 [Rodriguez].

(47) Ibid. at para. 175.

(48) Ibid. at para. 173.

(49) Wakeford v. Canada (1998), 166 D.L.R. (4th) 131 (Ont. Gen. Div.) [Wakeford]. After this decision, Mr. Wakeford pursued and exemption through the Ministry of Health. He discovered that, although it was in the process of development, the Ministry had no procedure for granting an exemption. Mr. Wakeford applied to reopen his application and, in light of this fresh evidence that there was no procedural mechanism in place, Laforme J. varied his earlier decision, see 173 D.L.R. (4th) 726 (Ont. S.C.).

(50) Controlled Drugs and Substances Act, S.C. 1996, c. 19.

(51) Supra note 49 at 145; see also at 142-43.

(52) Ibid. at 151.

(53) Supra note 2 at s. 15(1).

(54) See e.g. Jackman, supra note 3.

(55) R.A. Haigh, "Reconstructing Paradise: Canada's Health Care System, Alternative Medicine and the Charter of Rights" (1999) 7 Health L.J. 141.

(56) Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 [Law].

(57) Ibid. at para. 51.

(58) Ibid. at para. 53.

(59) Ibid. at para. 56ff.

(60) Ibid. at para. 88.

(61) Eldridge v. British Columbia (A.G.), [1997] 3 S.C.R. 624 [hereinafter Eldridge].

(62) Ibid. at para. 66.

(63) Ibid. at para. 69.

(64) Ibid. at para. 71.

(65) Infra note 76.

(66) Knodel v. British Columbia (Medical Services Commission) (1991), 58 B.C.L.R. (2d) 356 (S.C.) [Knodel].

(67) Medical Services Act, R.S.B.C. 1979, c. 255, s. 2.01.

(68) Supra note 66 at 383.

(69) Supra note 61 at para. 92.

(70) Fernandes v. Manitoba (Director of Social Services (Winnipeg Central)) (1992), 93 D.L.R. (4th) 402 (Man. C.A.) [Fernandes], leave to appeal to S.C.C. refused 99 D.L.R. (4th) vii.

(71) Ibid. at 414.

(72) Rogers v. Faught (2001), 5 C.C.L.T. (3d) 109 (Ont. S.C.J.) [Rogers].

(73) See Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232.

(74) Supra note 72 at para. 77.

(75) Ibid. at para. 80.

(76) If a breach of s. 15 is made out, the government has an opportunity to save impugned legislation or state action by recourse to section 1. R. v. Oakes, [1986] 1 S.C.R. 103., established that the government must show (1) that the breach is one that is "prescribed by law," (2) that the government has a pressing and substantial purpose in acting in the way that it has chosen, (3) that there is a rational connection between this purpose an the actions taken, (4) that the state action minimally impairs the right in question and, finally, (5) that the salutary effects of the impugned action outweighs the deleterious impact of the rights breach.

(77) Cameron v. Nova Scotia (A.G.) (1999), 177 D.L.R. (4th) 611 (N.S.C.A.) [Cameron].

(78) Ibid. at 651.

(79) Ibid. at 667.

(80) Ibid. at 664.

(81) Supra note 61 at para. 85.

(82) Cameron v. Nova Scotia (A.G.), [1999] S.C.C.A. No. 531 (QL).

(83) "The effect of limiting Charter application to actions of the legislative and executive branches of government is to exclude from Charter scrutiny the major source of inequality in our society: the maldistribution of property entitlements among individuals." Supra note 8 at 292.

(84) M. Mandel, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Thompson Educational, 1994) at 72.

(85) Supra note 55 at para. 117.

(86) S. Rogers, "State Intervention in the Lives of Pregnant Women" in J. Downie & T.A. Caulfield, eds., Canadian Health Law and Policy (Toronto: Butterworths, 1999) 275 at 286.

(87) J. Bakan, "Constitutional Interpretation and Social Change: You Can't Always Get What you Want (Nor What you Need)" (1991) 70 Can. Bar Rev. 307 at 328.

Benjamin L. Berger*

* B.A. (Hons.) (Alberta), LL.B. (Victoria). The author thanks Andrew Petter for his invaluable support in the preparation of this article.
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Publication:Review of Constitutional Studies
Date:Jan 1, 2003
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