A/HRC/41/34/Add.2
Canadian Charter of Rights and Freedoms. The Constitution also prescribes which powers –
legislative, executive and judicial – may be exercised by which State organs and how
legislative powers are distributed between the Parliament of Canada and the provincial
legislatures. The unwritten rules – constitutional principles and conventions – govern the
relationship among the State’s entities and condition the exercise of legal powers.
21.
While the right to health is not explicitly mentioned in the Charter, many of its
provisions may be protected through other rights specified therein, in particular the right to
life and security of the person (section 7) and the right to equal protection and equal benefit
of the law without discrimination (section 15).
22.
Until now, people in Canada have relied on sections 7 and 15 of the Charter to
challenge barriers that prevent access to health care based on need and barriers to
addressing poverty, homelessness and other significant determinants of health. The Special
Rapporteur received information indicating that a common opposing argument to such
judicial challenges is the inaccurate assumption that the international human rights
obligations of Canada have allegedly no binding legal effect. He stresses that international
human rights law presents obligations that States are bound to respect when they become
parties to the treaties.
23.
In a 2018 decision made under the complaint procedure of the International
Covenant on Civil and Political Rights, the Human Rights Committee stressed that, while
the Covenant did not protect the right to health as such, the right to life, could not be
properly understood in a restrictive manner and its protection required positive measures by
the State.13 The Committee recalled that the right to life extended to reasonably foreseeable
threats and life-threatening situations that could result in loss of life. States were therefore
obliged to adopt health-related positive measures even if such threats and situations did not
result in loss of life. At the minimum, States must provide access to existing health-care
services that were reasonably available and accessible when lack of access to health care
would expose a person to a reasonably foreseeable risk that could result in loss of life.
24.
Finally, the Committee concluded that the denial of health-care coverage to an
undocumented migrant under the Interim Federal Health Program for immigrants violated
the migrant’s right to life (article 6 of the International Covenant on Civil and Political
Rights). It also determined that excluding the subject of the complaint from health-care
coverage under the Program on the basis of the subject’s immigration status had been a
violation of the right to equality before the law and equal protection of the law without any
discrimination (ibid., art. 26). It compelled Canada to provide the subject with an effective
remedy, full reparation and adequate compensation and reminded it of its obligation to take
all steps necessary to prevent similar violations in the future, including by reviewing its
national legislation to ensure that irregular migrants enjoyed access to essential health care
to prevent a reasonably foreseeable risk that could result in loss of life.
25.
The Special Rapporteur agrees with those conclusions and further notes that,
considering that access to essential health care is protected under the International
Covenant on Civil and Political Rights in its articles 6 (on the right to life) and 26 (on the
right to equality and non-discrimination), the same should apply in terms of section 7 of the
Charter (on the right to life, security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice) and section 15 (on the right
to equality before and under the law and to the equal protection and equal benefit of the law
without discrimination). The argument that the Charter imposes no positive obligations to
protect the health-related elements of the rights to life, security of the person and equality
contravenes the international obligations of Canada.
C.
National health-care system
26.
Canadian health-care systems are firmly rooted in values of equity and fairness and
the overall notion that access to health care should be based on need and not on the ability
13
6
See communication No. 2348/2014, Toussaint v. Canada (CCPR/C/123/D/2348/2014), para. 11.3.
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