Charter of Rights and Freedoms Section 7 and the Provision of Health Care to Refugees

1. How do you think a Canadian court should respond to the claim that the cuts to benefits under the Interim Federal Health Program violate s. 7 of the Charter? In answering this question, you might address issues such as the nature of the state obligations relating to health care that flow from s. 7, and the scope of the court's capacity to make informed, legitimate judgments about health care programs.

Section 7 of the Canadian Charter of Rights and Freedoms states 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.’ Like Section 7 of the Charter, most of the rights in the Charter are negative in nature, rather than positive. It seems that the nature of these state obligations does not state that healthcare in Canada must be maintained at a particular standard, and likewise, that Canadians or refugees have a positive right to be provided with health care of such a standard. The government’s decision to cut funding for the IFHP may be considered a breach of Section 7, by failing to provide refugees with healthcare at all. However, such a decision to cut benefits to refugees seems like it may be a decision that should be decided by the government, rather than the judiciary. However, progressive interpretation of Section 7 may allow for the courts to apply this constitutional statute to refugee claims. Petter argues that in Chaoulli, the judges of the Supreme Court were able to determine that prohibiting private health insurance is not necessary or even related to the provision of quality public health care. This appears to give the Court much authority to decide health care issues in Canada. Although it is the court’s domain to evaluate Section 7 claims, it is questionable whether the judiciary is the correct body to make such determinations on healthcare – an area that is very costly and applies to all Canadians. The government, which has better knowledge of spending and costs of healthcare, and healthcare policy, may be better equipped to make such decisions.

2. Reflecting on various perspectives, including those raised by Petter and Young, what are the risks and advantages that arise when s. 7 is used to advance the interests of marginalized communities?

In Chaoulli, the Supreme Court determined that the single-payer structure of health insurance and its objective of providing healthcare services that are equal for all, violates the rights of the those who could gain access to medical services in a more timely fashion, by purchasing private health insurance on their own. The Court also believed that there was no evidence suggesting the introduction of private health insurance would compromise the quality of Canadian healthcare. Petter argues some of Court decisions such as Chaoulli show judicial activism, in that Courts seem to be determining the healthcare structure of Canada according to their own ideas and views. However, Petter says legislatures usually get the final say on Charter cases, which may help to combat any criticisms of judicial activism. Some say judicial dialogue leads to judicial restraint because the judiciary leaves scope in its decisions for potential responses by the legislative and executive branches. Judicial dialogue between the judiciary and the legislature, may therefore offer a form of reassurance in that the legislatures can remedy or reverse any problems that arise from Charter decisions. However, it may also be argued that by allowing judges to feel as though they are not the final arbiters, judges may be more likely to take ‘robust approaches to judicial review’, argues Roach. This may lead to judges having much power to determine Section 7 claims and thus the healthcare system of Canada. Petter argues that the judiciary has a heavy influence on legislatures, so such judicial decisions may be accepted by the legislature. Furthermore, Petter claims that this style has led to judges viewing their Charter role as advocates rather than arbiters, with their judgments being directed at government rather than at society, which he says further leads to activism.

It therefore seems that Section 7 may prevent the government from preventing a party from paying for private healthcare. At the same time, if it is true that allowing more individuals to pay privately for healthcare will undermine the legislative goals of universal healthcare, than Section 7 may be violated for those who are less wealthy and are must then deal with a lesser standard of healthcare. It must be determined which body is in the best position to make such determinations – government or the judiciary.