Health and Equality: Is There a Cure?

15 Health Law Journal 87-141, 2007

56 Pages Posted: 14 Jul 2014 Last revised: 14 Mar 2015

See all articles by Martha Jackman

Martha Jackman

University of Ottawa - Common Law Section

Date Written: 2007


While Canadians have long held equal access to health care based on need, rather than ability to pay, as a core social value, successive Canadian governments have failed to ensure timely access to adequate health care for all. As a result, access to health care is increasingly being pursued as a right under the Canadian Charter. In this context, the author examines the facts, lower court judgments, and implications of the Supreme Court of Canada’s decision in Auton v British Columbia (Attorney General) for future equality-based claims to publicly-funded health care. She suggests that the Court’s reasoning in Auton draws a false distinction between the comprehensiveness of the health care system – which is excluded from section 15 Charter scrutiny – and the universality of access to health services, which can be reviewed for discriminatory gaps in services. The author concludes that this formal approach to equality not only threatens the health care rights of Aboriginal people, people living in poverty, persons with disabilities, and other disadvantaged Canadians, it also fails to reflect the importance all Canadians attach to the principle of universal access to health care.

Keywords: health care, Canada, equality, medicare, Auton, Charter, access to health,

Suggested Citation

Jackman, Martha, Health and Equality: Is There a Cure? (2007). 15 Health Law Journal 87-141, 2007, Available at SSRN:

Martha Jackman (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5

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