Charter Review as a Health Care Accountability Mechanism in Canada

Abstract

This paper examines judicial review under the Canadian Charter of Rights and Freedoms as a health care accountability mechanism. The health care reform debate in Canada has given rise to questions about who health care decision-makers are accountable to, and for what decisions. Given the health care system’s continuing failure to address this important issue, Charter-based judicial review has been identified as a possible alternative avenue of health care accountability. The first section of the paper briefly surveys past and ongoing claims related to access to health care, particularly under section 7 (right to life, liberty and security of the person) and section 15 (right to equality) of the Charter. The author argues that while the Charter has enormous potential in this area, it cannot fulfill its promise as an effective accountability mechanism in the absence of judicial recognition of a constitutional right to publicly funded health care based on need, rather than on an ability to pay. To recognize such a right would require the Canadian courts to abandon both their outmoded negative rights approach to Charter interpretation and the unquestioning judicial deference accorded to government resource allocation choices.

Keywords: Canada, Charter, judicial review, health care, medicare, human rights, accountability, section, 7, 15