Winner of the 2019 Health Law Student Essay Contest

  • July 05, 2019

Affirming Health as a Positive Right in Canada: Lessons from South Africa

Anika Winn, University of Ottawa


Constitutional rights are often characterized as either positive rights or negative rights. The traditional view of constitutional rights is that they are negative rights, meaning that they protect individuals from government interference.[1] In cases concerning negative rights, the remedy issued by courts will generally be to strike down the impugned government action that infringes upon the challenged Constitutional right.[2] Positive rights on the other hand, require direct action by the government to deliver or ensure access to the right in question, and therefore, courts tend to offer more diverse remedies requiring affirmative action to protect the right.[3]

Socio-economic rights (SER), such as the right to health, housing and education, are the most typical examples of positive rights, in comparison to civil and political rights which are viewed as negative rights.[4] South Africa is considered a leader in recognizing SER within their Constitution and in the enforcement of positive rights by the judiciary.[5] The Canadian Constitution alternatively, does not provide explicit protection of SER. Subsequently, the way that courts have dealt with cases concerning SER has mainly been through a negative rights approach.[6]

There has been long debate in Canada over the desirability and enforceability of positive rights through Constitutional adjudication.[7] Focusing on the right to health and drawing from South African jurisprudence, this article takes the position that it is possible for the Canadian judiciary to adjudicate health as a positive right, even though the Canadian Charter of Rights and Freedoms[8] does not include SER. This argument will unfold through three sections. Section I will outline the negative rights approach to health found in Canada and the treatment of health as a positive right in South Africa. Section II will assess the implications of the different rights approaches in the Canadian and South African jurisprudence. Finally, section III will assess the critique faced and feasibility of adjudicating health as a positive right in Canada.

Section I: A comparative analysis of the right to health in Canada and South Africa 

Health as a negative right in Canada

There is widespread belief in Canada that all citizens have the right to equal and timely access to health care that is not determined by the ability to pay, a belief that is enshrined in the Canada Health Act.[9] The right to health however, is not directly protected in the  Charter, but cases concerning health rights have been brought under section 7 right to life, liberty and security of the person, and section 15 on the right to equality before and under law and equal protection and benefit of law.[10] Scholars have largely credited “the relative universality, accessibility and comprehensiveness of Canada’s existing medicare system” [11] as the reason why there has been a limited number of health related cases brought during the first two decades of the Charter. However, when faced with an increasing number of complex Charter challenges concerning health rights, the Canadian judiciary has maintained a conservative negative rights approach.[12]

The most successful health rights cases have been brought under section 7, challenging criminal law sanctions that infringe upon the life and security of the individual claimant.[13] Notably, (Attorney General) v. PHS Community Services Society (Insite)[14], R v Morgentaler[15], and Carter v. Canada (Attorney General)[16], all resulted in the Supreme Court of Canada (SCC) ruling on criminal law provisions that violated section 7 rights Charter. To date however, the SCC has not interpreted section 7 to extend to impose positive obligations on the State. The McLachlin Court has exercised considerable restraint and deference where the claimant has asserted positive rights vindication, on the basis that “it is the legislature and not the courts which has the major responsibility for law reform”[17], and that the framers of the Charter intended for section 7 to apply to matters of procedure and not substance.[18]

A similar negative rights approach has been taken in section 15 Charter challenges concerning health rights. To the extent that section 15 does serve as a vehicle for positive rights, it is usually to ensure that social benefits provided by law are extended in a non-discriminatory fashion, as was the case in Eldridge v British Columbia.[19] The court however, has yet to extend section 15 to mandate entitlement of a claimant to a new benefit, as was seen in Auton v British Columbia.[20] Overall, the Canadian judiciary has maintained that their role is to uphold the rights enshrined in the Charter and continue to issue negative rights remedies if they determine that the government has unreasonably infringed upon a Charter right.

Health as a positive right in South Africa

The South African Bill of Rights[21] offers comprehensive protection for SER, and one of the most extensive and explicit Constitutional permissions for judicial involvement.[22] Section 27.(1)(a) states that “everyone has the right to have access to health care services, including reproductive health care”.[23] Section 28(1)(c) further protects the right to health care services for children[24], while section 35(2)(e) and (f) protect health care rights for arrested, detained and accused persons.[25] Organs of the State are required to respect, protect and fulfill the rights enshrined in the Bill of Rights,[26] which triggers negative duties of non-interference with fundamental material interests and positive obligations to provide the goods and services necessary to secure certain rights, such as that to health.[27] The SER provisions of the Constitution are obligations to citizens that South African courts can and must enforce through a vast array of remedies, positive or negative, that they determine to be appropriate.[28]

It is important to consider the context in which the new Constitution[29] for South Africa was drafted in, to understand the powers of the judiciary and protection of SER. The Bill of Rights was written with a vision [that was] based on racial equality and human rights”[30], transitioning out of a legacy of apartheid. The protection of the right to health was included to develop an alternative framework for providing health care in South Africa, and to work to eliminate health disparities as a result of apartheid.[31] South African courts were issued the power to grant “appropriate relief”, including the declaration of rights, whenever they felt a right was infringed upon or threatened[32], and are responsible for interpreting the Constitution to explain the meaning of certain rights.[33] The Constitutional Court, the highest court in South Africa, was expected to “transform the judiciary that had functioned under the apartheid system for decades […] and supervise the lower courts and to enforce the new constitutional values”.[34] In accordance, the Constitutional Court has been unapologetic in ordering diverse remedies, including suspending government orders, issuing timelines for the government to take affirmative action to protect the right to health, and reading in “curing words” to the legislation, in an attempt to bring about change at different levels of government and in different sectors.[35] This positive rights approach has resulted in seminal jurisprudence in the arena of health, such as Minister of Health v Treatment Action Campaign[36] and Soobramoney v Minister of Health.[37] Overall, the Constitutional Court has served a catalytic function to uphold and proliferate the SER protected in the Bill of Rights through the utilization of diverse modes of judicial review.

Section II: Implications of negative versus positive rights approaches in case outcomes

While recent decisions handed down by the SCC have been praised as progressive in advancing health rights for Canadians, a main limitation of Charter review as it currently operates is that many of the underlying issues concerning access to health care requires positive government measures, rather than government inaction.[38] Thus far, Canadian courts have largely failed to address the “substantive barriers or the accountability of decision-making” [39] that create systemic issues of access to care, by exercising a high degree of deference to government decisions. Many scholars have advanced the argument that the foundational values of equality, dignity and human freedoms are substantially linked to positive protection of SER, and through providing a negative interpretation of the Charter, Canadian courts are failing to address and hold governments accountable to social injustices.[40] Through an examination of series of Canadian and South African jurisprudence concerning the right to health, this section will outline the negative versus positive rights approach adopted by both countries and subsequent outcomes and societal implications.

Section 7: An avenue to prevent infringements on health rights, but not secure access to them

Morgentaler was one of the first section 7 cases dealing with the right to a health services. The SCC in Morgentaler struck down section 251 of the Criminal Code, which required women seeking abortions to obtain approval from “therapeutic abortion committees” at an accredited hospital.[41] In his majority judgement, Dickson CJ concluded that “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 person.[42] However, the analysis of the majority focused on the administrative delays and unequal levels of access to abortion services created by section 251, that threatened the security of the person. Apart from Wilson J in her concurring judgement[43], the SCC did not address the substantive issue of the right of access to abortion. Similarly, the SCC in Chaoulli v Quebec,[44] struck down legislation banning private health insurance in Quebec, but did not deal with the substantive issue in the case that resulted in the complainants requiring access to private health insurance: excessive wait times to access publicly-funded health services.

The implications of the negative rights approach by the SCC in Morgentaler and Chaoulli are serious. Morgentaler has left a legislative void with respect to federal regulation of the practice of abortion and access to abortion services that is dependent on the provincial policy landscape.[45] Largely because the court in Morgentaler did not comment on the right of women to access abortion services, lower court challenges to regulations restricting funding and access to abortion services have ultimately failed.[46] Ultimately, three decades later, access to abortion services for women in Canada is not guaranteed. The implication of Chaoulli has been that Canadians don’t have the right to public health care, and those with the means to pay for services privately can do so.[47] Chaoulli provides standing for cases arguing for the proliferation of a two-tiered health system in Canada[48], fails to hold the government accountable for improving the public health sector, and has restricted the types of access to care arguments that could succeed under section 7.[49]

In the Carter case, the SCC concluded that the Criminal Code prohibition on assisted suicide was unconstitutional as it deprives competent adults suffering from a grievous and irremediable medical condition from obtaining physician-assisted death.[50] The prohibition violated the claimants’ section 7 rights to life, liberty and security of the person without conforming to the principles of fundamental justice, and could not be saved under section 1.[51] A unanimous court issued a suspended declaration of invalidity for 12 months to give parliament time to “craft an appropriate remedy”, but refused to the appellant’s request to create a mechanism for exemptions during the period of invalidity.[52]

The negative rights approach taken by the SCC in Carter has resulted in an unsettled and confusing policy landscape on medical assistance in dying (MAID). A main issue with a suspended declaration of invalidity, as opposed to an immediate declaration of invalidity, is that it provides for the continuance of a regime that has already been found to violate the Constitution.[53] Further, even after receiving an extension, Parliament did not respond the courts orders in time and the provisions were declared invalid. This allowed individuals to seek judicial relief to access MAID.[54] However, without any framework in place and through the reading-down of the infringing provisions by the SCC in Carter, access to MAID was restricted to few groups in the interim.[55] When Parliament eventually responded to the SCC[56], there was (and continues to be) widespread critique that the bill actually creates more restrictions on who can access MAID, and does not conform to the ruling in Carter.[57] Specifically, physicians have expressed concern over vague language used in the bill, such as what it means for a patient to be in an “advanced state of irreversible decline in capabilityor that “natural death be reasonably foreseeable,” and Parliament has provided no clarification or regulatory framework.[58] Consequently, different jurisdictions and hospitals across Canada have begun putting in place their own protocols and for MAID, resulting in great inequality in access to MAID, unclarity about the future of MAID in Canada, and a feeling of unaccountability by Parliament to comply with court orders.

Arguably, the SCC decision in the Insite case[59] is the closest the court comes to asserting a positive right against the state. In 2008, the Federal Minister of Health failed to grant an extension on the exemption that Insite, a safe-injection site in Vancouver, received from the Controlled Drugs and Substances Act,[60] that allowed intravenous drug users to bring drugs to the facility and inject them under the supervision of medical staff.[61]  The SCC unanimously held that while the CDSA applied to Insite and was a valid exercise of federal power,[62] the ministers decision to revoke the exemption infringed upon the claimants section 7 rights.[63] McLachlin CJ was definitive in her assessment of Insite: “Insite saves lives. Its benefits have been proven. There has been no discernable negative impact on the public safety and health objectives of Canada during its eight years of operation” and ordered an exemption from the CDSA be immediately granted to Insite.[64]

Insite possesses elements where the SCC uses positive reasoning to challenge the government and caution the government that whenever a policy is translated into law or state action, it becomes subject to Charter scrutiny.[65] The court affirms that “where a law creates a risk to health by preventing access to health care, a deprivation of the right to security of the person is made out …Where the law creates a risk not just to the health but also to the lives of the claimants, the deprivation is even clearer.”[66] This line of reasoning opens the door for more section 7 challenges that call for affirmative government action.

However, at the same time, the court in Insite limits its decision on extremely narrow grounds, upholding the Constitutionality of the CDSA, and opposing the minister’s decision based on the extensive social science evidence on the benefits of the Insite clinic in the specific community.[67] The SCC cautions that the Insite decision is not “an invitation for anyone who so chooses to open a facility for drug use under the banner of a ‘safe injection facility’”[68], making it unclear whether other jurisdictions would be able to receive an exemption under the CDSA and the type of evidence that they would need to demonstrate the necessity of the clinic. Further, no obligation is placed on other provinces to open safe-injection sites, providing drug users in Vancouver access to a service that no other drug users in Canada have access to.[69] Overall, while Insite does positively protect the right of the Insite clinic to exist in Vancouver, the contextual framing of the decision leaves it unclear about the right to access safe-injection sites elsewhere in Canada.

Section 15: Narrowing the scope of health rights cases brought on the grounds of equality

The second way which claimants have brought Charter challenges involving health rights, has been under section 15. Notably, Eldridge and Auton are often contrasted as two case which work to define the types of health rights cases that could succeed under  section 15.[70] In Eldridge, the SCC concluded that the decision of the government of BC not to provide language interpretation services for the deaf when they received medical services violated the section 15(1) rights of the deaf.[71] In a rare issuance of a positive remedy, the SCC gave the government of British Columbia six months to ensure that “sign language interpreters will be provided where necessary for effective communication in the delivery of medical services.[72] Years later in the Auton case, the parents of four children with autism relied on the decision in Eldridge to bring a section 15 Charter challenge to the refusal of the government of BC to fund intensive treatment for behavioural autism.[73] The SCC held because autism services were not included under the provinces health insurance legislation, the claimants were not deprived of a benefit “provided for by the law” within the meaning of section 15.[74] The court affirmed that “the legislature is under no obligation to create a particular benefit. It is free to target the social programs it wishes to fund as a matter of public policy.”[75]

The decisions of Eldridge and Auton together, narrows and defines the type of cases could succeed under a section 15 Charter challenge. Many saw Eldridge as an avenue for future claims for the expansion of health care services.[76] However, Auton clarified that this is not the case by requiring that a claimant first be able to show that a benefit is prescribed or required by law, and then establish that a relevant comparator group would receive the benefit that the claimant is being denied, in order to establish discrimination.[77] Therefore, the court in Auton defended that section 15 is not a vehicle to claim a “benefit that the government, in the exercise of its discretion to allocate resources to address various social problems, has chosen not to provide.”[78] The excessive deference to government spending choices granted by the court in Auton is problematic as it proliferates a the conception that health is a negative right and the court will refrain from issuing positive obligations on the government.[79] The result of the SCC approach in Auton has been to restrict the use of section 15 as a way to remedy societal inequalities.[80]

Section 27: A tool to advocate for health rights in South Africa

A number of South African cases engaging section 27 of the Bill of Rights highlight the active role that the Constitutional Court takes in advocating for positive rights, even if the outcome is not favourable for the claimant, which was the case in the Soobramoney decision.[81] Mr. Soobramoney was a terminally-ill diabetic man in the final stages of chronic renal failure, who was denied dialysis due to limited hospital resources and policy.[82] Mr. Soobramoney challenged this decision under section 27(3),[83] arguing that he was being refused “emergency medical treatment”. The Constitutional Court held that “emergency medical treatment” could not be extended to prolong treatment for terminally ill patients, and that the entirety of section 27 must be read in context of section 27(2), which places limits on the right to health based on available state resources.[84]

While the outcome of the case was not favourable for Mr. Soobramoney, this case was important for many reasons. First, the court affirmed their role in positively enforcing SER if they determine they have been infringed upon.[85] Second, the court set a standard for providing deference to the legislature.[86] The court concluded that a “court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is for them to deal with such matters”.[87] What is noticeable however, is that the court completed a thorough analysis of hospital policies, guidelines, and the actual evidence of the financial status of the hospital and the KwaZulu Province to confirm that other practical solutions were considered, before reaching the former conclusion.[88] This set the precedent that courts will be deferential to economic limitations and government spending decisions, but not just the state’s mere assertion of economic limitations.[89] It is the governments responsibility to prove that deference is owed. Finally, the court vocalized concern for what the implication of their decision would be for society at large, not just the individual claimant,[90] demonstrating the courts willingness to address societal issues. Overall, the reasoning used by the court in Soobramoney, was framed in a positive manner that reaffirmed the courts role in adjudicating SER.

The TAC case[91] is one of the most internationally recognized cases of a court positively enforcing a SER. The TAC case challenged the South African governments decision to introduce the HIV anti-retroviral drug, Nevirapine, only at limited pilot sites across the country[92] A single dose of Nevirapine was known to dramatically decrease the likelihood that an HIV-positive mother would transmit the virus to her child during birth, but it was estimated that  just 10% of approximately 70,000 affected births annually would have access to the drug due to the governments decision.[93] Relying on a great deal of information from “specialised perspectives, ranging from paediatrics, pharmacology and epidemiology to public health administration, economics and statistics”,[94] the court concluded that the governments decision was a violation of sections 27 and 28 of the Bill of Rights, and the harm created by restricted access to Nevirapine greatly outweighed the justifications provided by the government.[95]

The Constitutional Court in TAC issued a number of mandatory orders. The government was required to: remove the prohibitions on the distribution of Nevirapine without delay; facilitate access to Nevirapine at every hospital and clinic where medical professionals request it; provide training for counsellors at public health facilities to use Nevirapine; and extend testing and counselling facilities related to mother-to-child transmissions throughout the public health sector.[96] The order also required the government to align their policies and decision-making with emerging HIV research, and the court reinforced their ability, even though they were choosing not to use it, to maintain supervisory jurisdiction.[97] However, follow-up pressure was needed in some provinces to achieve compliance, including the filing of a contempt of court action against one provincial authority.[98] The TAC case is the most far-reaching decision issued by the Constitutional Court to date, but their orders fell well within their Constitutional powers, demonstrated restraint, and the courts analysis and decisions was firmly grounded in the evidence presented.[99] The TAC decision has been credited for saving tens of thousands of lives and propelling forward the HIV/AIDS movement in South Africa, as well as establishing a conceptual and remedial framework for judicial review and enforcement of the positive obligation to ensure access to healthcare.[100]

Two further cases exemplify the willingness of the South African courts to issue positive obligations on the state. In RSA v Grootboom, the Constitutional Court declared a housing program unconstitutional according to section 26(2) of the Bill of Rights, because it failed to take into account the close to 1000 squatters, over half of whom were children, seeking shelter on the abandoned site and living in “intolerable conditions and crisis situations”.[101] The court ordered the government to devise and implement within its available resources a “comprehensive and coordinated programme” to provide reasonable shelter, providing a framework and standards for the government to follow.[102] In EN v Government of RSA, the court found provisions in a national plan for HIV/ AIDS treatment, that restricted certain prisoners at correctional facilities from access to timely anti-retroviral treatment at a public health facility, to infringe upon sections 27 and 35(2)(e).[103] The court issued a structured order with a supervisory component to the government to ammend the impugned policy, and ordered for all prisoners in the same circumstances as the claimants to receive immediate anti-retroviral treatment at a public health facility.[104] Overall, the positive framing of the TAC, Grootboom and EN decisions by the court, demonstrate that the South African judiciary is not afraid of shying away from advancing social justice concerns of the Constitution within its jurisprudence.[105] At the same time however, these cases exemplify the rigorous nature of judicial review that the courts go through to justify imposing onerous affirmative orders on the government.

Section III: Assessing the feasibility of adjudicating health as a positive right in Canada

While the Canadian Charter and South African Bill of Rights are often compared to one another, both Constitutional documents were drafted in different contexts, with different intentions of the Constitutional framers, and expected to serve different functions. This is especially relevant when it comes to how the Canadian and South African courts assess SER cases and issue remedies. Whereas negative rights fall squarely within the Canadian courts’ purview, judicial enforcement of positive rights typically raises issues of institutional legitimacy and competence.[106] Alternatively, South African courts circumvent many of the typical positive rights critiques raised because the Court is interpreting enumerated SER in accordance with its broad institutional mandate from the Constitution.[107] This final section will explore three critiques that the Canadian judiciary is especially vulnerable to, in comparison to the South African judiciary, when taking a positive rights approach to health rights, as well as identify potential ways to mitigate these critiques while incorporating aspects of the South African positive rights approach.

The proper role of the judiciary

The concern for the proper role of the judiciary in a representative democracy presents a strong argument for the continued use of negative rights.[108] The traditional judicial role is to ensure that the government operates within the confines of the Constitution and correspondingly interpret and identify any infringements upon the Constitution. The guarantee of judicial independence aligns with the judicial power to strike down laws inconsistent with the Constitutions guarantees. Alternatively, the adjudication of positive rights claims, such as health, falls largely beyond the judicial role.[109] The fulfilment of positive rights requires the balancing of democratic interests and priorities, often the (re)allocation of resources, and policy making to implement. In accordance with the separation of powers, this is the role of the legislature, not the judiciary, and therefore, positive rights enforcement should not be conducted by the courts.

The ability for the judiciary to exercise positive rights enforcement in South Africa is possible not only because it is articulated in the Constitution, but the Constitutional Court themselves have affirmed their power: 

“A court may require the provision of legal aid, or the extension of state benefits to a class of people who formerly were not beneficiaries of such benefits. In our view, it cannot be said that by including socio-economic rights within a bill of rights, a task is conferred upon the courts so different from that ordinarily conferred upon them by a bill of rights that it results in a breach of separation of powers.”[110]

It is important to recognize though, that the Canadian Constitution does not actually prevent courts from taking a positive rights approach, but rather, it was the SCC themselves who have defined their role. In Gosselin v Quebec, Justice Arbour in dissent actually argued that section 7 of the Charter should be interpreted as protecting positive rights when dealing with SER.[111] Chief Justice McLachlin writing for the majority however, held that the appellant in Gosselin did not warrant interpreting section 7 to include positive rights, but that the court should not rule out the possibility that some future circumstances might permit it.[112] Therefore, it is possible for the SCC to affirm their role in enforcing SER without going against the Constitution.

Additionally, it is still possible for the Canadian judiciary to enforce SERs without impeding upon the powers of the Legislature. The SCC could draw from the diversity of remedies and orders issued by the Constiutional Court to began to find ways to enforce SER without feeling as though they are overreaching or going as far as the Constiutional Court did in the TAC.[113] For example, the SCC could issue immediate declarations of invalidity and put temporary frameworks in place until the government revises the law, which would have been beneficial in Carter.[114] Additionally, the courts could utilize supervisory orders to ensure that the government is revising legislation within the framework of the Constitution and court ruling, which arguably did not occur after Carter nor Insite.[115] Grootboom and EN[116] are good examples of cases where the South African courts provided the government with examples of what a constitutional policy would include and look like, which would be within the scope of the powers of the Canadian judiciary to utilize. Alternatively, a more extreme measure would be to find the government in contempt for not fulfilling a judicial order, which did happen to one province in South Africa following the TAC ruling.[117] While this is a more extreme action, it would set the precedent for the Canadian government that the courts are serious about ensuring their orders are followed. Hopefully, it would also make the governments more likely to comply with future orders and consider the Constitutionality of their decision making.

Finally, even if courts do not want to require the government to take affirmative action, they can advocate for SER through addressing these issues in their jurisprudence. For example, by positively affirming that women have a right to access abortion services rather than the negative approach taken in Morgentaler,[118] it would make it easier for future claims to be brought to affirm the right to access services instead of having to prove that a right is being infringed upon. Overall, it is possible for Canadian courts to assert positive rights within the scope of their role. Hopefully doing so would also encourage the courts and governments to work parallel with one another in protecting SERs, as has been the case in South Africa.[119]

 The explicit language of the Charter

A second critique often plaguing the Canadian judiciary is that the Charter rights are explicitly drafted in negative language.[120] Had SER been intended to be included in the Charter, as it was with the express language used in section 23 of the Charter,[121] the Constiutional drafters would have included their enforcement. This was the case with South Africa, where the new Bill of Rights explicitly protected SER.[122] Therefore, because SER in South Africa are listed, they are justiciable. This is not the case in Canada.

This argument however, does not necessarily stand because as the SCC has said, the inclusion of addressing positive rights in section 7 has not been ruled out,[123] and the courts have already bordered taking a positive rights approach in certain cases.[124] Additionally, when it comes to section 15, it was the SCC who placed limits on the positive enforcement of SER.[125] Scholars have argued that it may be time for the SCC to revisit their decision in Auton to reassess the courts role in Charter equality analysis, potentially allowing for the court to take a more authoritative position in the protection of SER.[126] Overall, the Charter is framed to protect the rights of society, but it does not rule out protection of rights not listed. As the living tree doctrine articulates, the Canadian Constitution is meant to grow and adapt to the social context.[127] Subsequently, as the understanding of Charter rights grow in accordance with values and norms of Canadian society, it allows for the inclusion of positive rights adjudication within the realms of the intent of the Charter. Therefore, the absence of SER in the Constitution, unlike in the South African Bill of Rights, does not need to prevent courts from positively approaching health rights.

Institutional competence

The question of institutional competence commands strong restraint on positive rights claims in Canada. Creating positive obligations on the State triggers concerns of undermining the public confidence in the institution, especially when resource reallocation is involved. [128] Determining whether the government has gone beyond the justifiable limits of their authority is different than requiring the government to take action. In general, it is not the judiciaries role to create or force policy on social matters that will impact society; this is left to the role of the elected legislature. Therefore, it is argued that SER should not be justiciable since the consequence would be affirmative action required by the government.

The argument of institutional competence has challenged South African courts as well, yet they have managed to withstand this criticism through a rigorous approach to judicial review of SER, which Canadian courts could look to for guidance.[129] First, when addressing SER, South African courts are not creating social policy, but rather telling the government that they need to take affirmative action to protect a certain right so that they are fulfilling their Constitutional duties. This becomes an issue of enforcement for the governments to deal with, which is their role. Just because the adjudication of a SER may impose overwhelming requirements on the state, does not mean that it is outside of the courts powers to rule on positive rights. This is an issue of enforcement by government, not and issue of the justiciability of SER by the courts.[130]

Second, enforcing SER does not mean refusing to grant deference to government decisions, as the Constiutional Court demonstrated in Soobramoney.[131] While it is understandable that decision on funding choices is complex and a power vested in the legislature, there should be a matter for detailed investigation into the decision not to fund a particular service when a claim is brought,[132] which is the position taken by South African courts. Once the government is able to show they acted in good faith in their decisions on resource allocation, the court will not challenge their decisions. Canadian courts could adopt this position, rather than not questioning the governments decision to exclude access to certain health services and granting undue deference to the government based on their word. This leads into the final point on conducting more rigorous review of evidence, which has been useful for the South African judiciary to either grant deference to government decisions or issue extensive remedies for an infringement. Thus far, Canadian courts have not been rigorous in reviewing evidence pertaining to government spending decisions, and when they have done it, they have been criticized for doing it poorly.[133] If Canadian courts work to take a more rigorous approach to evidence review and set a higher standard for the government to meet to be granted deference, it could help them incorporate positive rights in their decision making without calling their competence into disrepute.

Moving Forward

The history of Charter review in Canada shows that the Canadian judiciary approaches health as a negative right. While recent SCC decisions, such as Carter and Insite, have been praised as presenting a more progressive view on health with elements of positive reasoning, the SCC has yet to definitively assert that health is a positive right and deal with the substantive issues of access to health services. This has resulted in existing gaps in access to health services that could have been addressed if the court dealt with the substantive content of the case in the positive. The Constitutional Court in South Africa could be a great resource for the Canadian judiciary to come up with ways to approach health as a positive right and issue remedies that they feel would be within their scope of powers. Additionally, the SCC may have to revisit past decisions to redefine the scope of section 7 and 15 of the Charter to address health rights. Moving forward in a legal landscape where more Charter challenges concerning health rights are coming before the SCC, the judiciary will likely be required to take a positive rights approach to settle controversial health issues in Canada.


[1] Wendy Parmet, “Populations, Public Health, and the Law” (2009) Georgetown University Press [Parmet].

[2] Emmett MacFarlane, “The Dilemma of Positive Rights: Access to Health Care and the Canadian Charter of Rights and Freedoms” (2014) 48:3 Journal of Canadian Studies [MacFarlane].

[3] Margot Young, “Rights, the Homeless, and Social Change: Reflections on Victoria (City) v Adams” (2009) 164 BC Studies [Young M].

[4] Ibid

[5] Ibid; Lucia Pizzarossa & Kathrina Perehudoff, “Global Survey of National Constitutions: Mapping Constitutional Commitments to Sexual and Reproductive Health and Rights” (2017) 19:2 Health and Human Rights [Pizzarossa].

[6] MacFarlane, supra note 2.

[7] Lawrence David, “A Principled Approach to the Positive/ Negative Rights Debate in Canadian Constitutional Adjudication” (2014) 23:1 Constitutional Forum [David].

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

[9] Canada Health Act, RSC 1985, c C-6 [CHA].

[10] Charter, supra note 8 at ss. 7 & 15.

[11] Canada, Royal Commission on the Future of Health Care in Canada, How Will the Charter of Rights and Freedoms and Evolving Jurisprudence Affect Health Care Costs?, Discussion paper No.20 by Donna Greschner (University of Saskatchewan, 2002) at 8 [Ramanow Commission].

[12] Martha Jackman, “Charter Review of Health Care Access” in Joanna Erdman, Vanessa Gruben & Erin Nelson, eds, Canadian Health Law and Policy, 5t ed. (Markham, ON: LexisNexis Canada, 2017) at 71-93 [Jackman].

[13] Ibid at 77.

[14] Canada (Attorney General) v. PHS Community Services Society, [2011] 3 SCR 134 [Insite]. Note that cases mentioned in this section will be discussed in detail in section II of this paper.

[15] R v Morgentaler, [1988] 1 SCR 30 [Morgentaler].

[16] Carter v. Canada (Attorney General), [2015] 1 SCR 331 [Carter].

[17] British Columbia v Imperial Tobacco Canada Ltd., [2000] 2 SCR 473 at 51.

[18] MacFarlane, supra note 2 at 54; David, supra note 8 at 43.

[19] Eldridge v British Columbia (AG), [1997] 3 S.C.R. 624 [Eldridge].

[20] Auton (Guardian ad litem of) v. British Columbia (A.G.), [2004] 3 S.C.R. 657 [Auton].

[21] Bill of Rights, Chapter 2 in the Constitution of the Republic of South Africa, 1996, No 108 of 1996 [Bill of Rights].

[22] Katherine Young, “A Typology of Economic and Social Rights Adjudication: Exploring the Catalytic Function of Judicial Review” (2010) 8:3 International Journal of Constitutional Law [Young K].

[23] Bill of Rights, supra note 23 at section 27.(1)(a). Note that section 27.(2) states that “the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights”, and section 27.(3) requires that “no one may be refused emergency medical treatment

[24] Ibid at section 28.(1)(c).

[25] Id. at section 35(2)(e)-(f).

[26] Id. at section 7(2)

[27] Young K, supra note 24 at 389.

[28] William Forbath, “Realizing a Constitutional Social Right- Cultural Transformation, Deep Institutional Reform, and the Roles of Advocacy and Adjudication” (2008) Social Science Research Network [Forbath].

[29] Constitution of the Republic of South Africa, 1996, No 108 of 1996.

[30] Adila Hassim, Mark Heywood & Jonathan Berger, Health & Democracy: A Guide to Human Rights, Health Law and Policy in Post-Apartheid South Africa (Cape Town, South Africa: SiberInk, 2007) at 14 [Health & Democracy].

[31] Ibid.

[32] Bill of Rights, supra note 23 at s 38.

[33] Health & Democracy, supra note 32 at 19.

[34] Eric Christiansen, “Adjudicating Non-Justiciable Rights: Socio-Economic Rights and the South African Constitutional Court” (2007) 38:321 Columbia Human Rights Law Review at 355 [Christiansen].

[35] Young K, supra note 24 at 390.

[36] Minister of Health v Treatment Action Campaign [2002] 5 SA 721 (CC) [TAC].

[37] Soobramoney v Minister of Health (Kwazulu-Natal) [1997] 1 SA 765 (CC) [Soobramoney].

[38] MacFarlane, supra note 2 at 73; Jackman, supra note 13 at 86.

[39] Jackman, supra note 13 at 6.

[40] Young M, supra note 3 at 103; Danielle Hirsch, “A Defense of Structural Injunctive Remedies in South Africa Law” (2006) bepress Legal Series Working Paper 1690 at 10 [Hirsch].

[41] Morgentaler, supra note 16 at 32-4.

[42] Ibid at 56-7.

[43] Id. at 162-85.

[44] Chaoulli v. Quebec (A.G.)., [2005] 1 S.C.R. 791 [Chaoulli].

[45] The Constitutional Law Group, Canadian Constitutional Law, 5th ed. (Toronto, Canada: Emond, 2017) at 1209-10 [CLG]; MacFarlane, supra note 2 at 63-4.

[46] Jane Doe et al. v Manitoba, 2005 MBCA 57; PEI (Minister of Health and Social Services) v Morgentaler, 1996 CanLII 3713 (PE SCAD).

[47] Jackman, supra note 13 at 87.

[48] Cambie Surgeries Corp. v. British Columbia (Medical Services Commission), 2010 BCCA 396 (C.A.); 2013 BCSC 2066; 2014 BCSC 361; 2014 BCSC 1028.

[49] Flora v. Ontario Health Insurance Plan, 2008 ONCA 538.

[50] Carter, supra note 17 at 4.

[51] Ibid at paras 71,94.

[52] Id. at paras 125-30.

[53] Sarah Burningham, “A Comment on the Court’s Decision to Suspend the Declaration of Invalidity in Carter v Canada”, (2015) 78 Sask. L. Rev. at 205 [Burningham].

[54] Kiran Madesh, “The Future of Canada’s Medical Assistance in Dying for the Mentally Ill and Physically Disabled”, (2017) ProQuest Dissertations and Theses at 3-4 [Madesh].

[55] Ibid at 205-7.

[56] An Act to amend the Criminal Code and to make related amendments to other Acts, SC 2016, c 3.

[57] Madesh, supra note 65 at 4-5; CLG, supra note 46 at 1246.

[58] Ibid; Barbara Sibbald, “Doctors Left to Define Foreseeable Death in New Law”, (2016) CMAJ.

[59] Insite, supra note 15.

[60] Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA].

[61] Insite, supra note 15 at paras 1-2.

[62] Id. at paras 54-84.

[63] Id. at para 136.

[64] Id. at para 133.

[65] Id. at para 104-5.

[66] Id. at para 93.

[67] Macfarlane, supra note 2 at 66; Tess Sheldon, Lorraine Ferris and Carol Strike, “Hopeful Result, Unclear Implications: A Comment on Canada (Attorney General) v PHS Community Services Society”, (2013) Health Law Review 21:2 at 18.

[68] Insite, supra note 15 at para 140.

[69] Macfarlane, supra note 2 at 66.

[70] Eldridge, supra note 21; Auton, supra note 22.

[71] Eldridge, ibid at para 53.

[72] Ibid at para 96.

[73] Auton, supra note 22.

[74] Ibid at para 56.

[75] Id. at paras 240-41.

[76] Clair Bond, “Section 15 of the Charter and the Allocation of Resources in Health Care: A Comment on Auton v. British Columbia”, (2005) Health Law Journal at 265 [Bond].

[77] Auton, supra note 22.

[78] Auton, supra note 22 at para 92.

[79] Jackman, supra note 13 at 79-81.

[80] Ibid at 82.

[81] Soobramoney, supra note 38. Soobramoney was the first SER case heard under the new Constitution.

[82] Ibid at paras 1-4.

[83] Bill of Rights, supra note 23 at s 27(3).

[84] Ibid at paras 19-32.

[85] Soobramoney, supra note 23 at paras 8-11.

[86] Christiansen, supra note 36 at 361-2.

[87] Soobramoney, supra note 23 at para 29.

[88] Ibid at paras 24-9.

[89] Christiansen, supra note 36 at 362.

[90] Ibid at para 26.

[91] TAC, supra note 38

[92] Ibid at paras 4-6.

[93] Ibid at para 19.

[94] Id. at para 6

[95] Id. at paras 124-9.

[96] Id. at para 135.

[97] Id. at paras 104-7, 135.

[98] Christiansen, supra note 36 at 371; Health & Democracy, supra note 32 at 24.

[99] Christiansen, supra note 36 at 370.

[100] Ibid at 371; Health & Democracy, supra note 32 at 24.

[101] Government of the Republic of South Africa and Others v Grootboom and Others, [2001] 1 SA 46 (CC) at para 91 [Grootboom].

[102] Ibid  at para 99.

[103] EN and Others v Government of RSA and Others, (2006) AHRLR 326 (SAHC) [EN].

[104] Ibid.

[105] Christiansen, supra note 36 at 378.

[106] David, supra note 8 at 41.

[107] Christiansen, supra note 36 at 348.

[108] David, supra note 8 at 42.

[109] Ibid.

[110] Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Republic of South Africa,  [1996] 4 SA 744 at paras 76-78. This was the first case that the Constitutional Court heard under the new Constitution.

[111] Gosselin v Quebec (Attorney General), [2002] 4 SCR 429 at paras 319-29 per Arbour J [Gosselin].

[112] Ibid at 82-3 per McLachlin CJ.

[113] Christiansen, supra note 36 at 371.

[114] Carter, supra note 17.

[115] Ibid; Insite, supra note 15.

[116] Grootboom, supra note 101; EN, supra note 103

[117] Christiansen, supra note 36 at 371; Health & Democracy, supra note 32 at 24.

[118] Morgentaler, supra note 16.

[119] Health & Democracy, supra note 32 at 24.

[120] David, supra note 8 at 42.

[121] Charter, supra note 8 at s 23.

[122] Health & Democracy, supra note 32 at 20.

[123] Gosselin, supra note 111 at 82-3.

[124] Insite, supra note 15.

[125] Auton, supra note 22.

[126] Mel Cousins, “Health Care and Human Rights after Auton and Chaoulli”, (2009) 54:4 McGill LJ at 721 [Cousins].

[127] Leonardo Pierdominici, “The Canadian Living Tree Doctrine as a Comparative Model of Evolutionary Constitutional Interpretation”, (2017) 9:3 Perspectives on Federalism at 92.

[128] David, supra note 8 at 42-3.

[129] Health & Democracy, supra note 32.

[130] Christiansen, supra note 36 at 347.

[131] Soobramoney, supra note 23.

[132] Cousins, supra note 126 at 728.

[133] Jackman, supra note 13 at 81-84.