First Nations Child and Family Caring Society of Canada v. Canada, 2019 CHRT 39

Contributed by Maya Gunnarsson

The McGill Journal of Law and Health and the Indigenous Law Association at McGill Blog are collaborating on our blogs this year, in order to connect our readers with more content at the crossroads of health law, and Indigenous law and legal traditions.  You can find this article cross-posted on their website.


The Canadian Human Rights Tribunal released their latest decision in First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) in September 2019. This ruling was the 9th issued by the Tribunal since 2016, when they found the Caring Society’s allegations that Canada was discriminating against First Nations children in their provision of child and family services were substantiated.

“This ruling is dedicated to all the First Nations children, their families and communities who were harmed by the unnecessary removal of children from your homes and your communities. The Panel desires to acknowledge the great suffering that you have endured as victims/survivors of Canada’s discriminatory practices.” 

Caring Society v. Canada, 2019 CHRT 39 at para 13.

The purpose of this ruling was to determine the compensation Canada would be ordered to pay due to their discriminatory practices. More broadly, however, this decision attempted to bring justice to an extremely vulnerable group of people who have historically been denied access to justice through Canadian institutions. Since the initial ruling in 2016, the Tribunal had issued multiple remedial orders against Canada, finding that they were continuing to discriminate, and giving clear orders on what the federal government needed to do to comply with its 2016 decision. While the federal government may have been dragging its heels, the Tribunal firmly took a step towards reconciliation in Canada with this decision. 


In 2008, the First Nations Child and Family Caring Society brought forward a complaint to the Canadian Human Rights Commission. They alleged that the federal government was discriminating in their provision of child and family services to First Nations children living on reserve and in the Yukon by providing inequitable and insufficient funding for those services, contrary to s. 5 of the Canadian Human Rights Act (CHRA). Whereas the federal government provides child and family services for First Nations, the provinces provide those services for non-Indigenous Canadians. At issue in the original complaint were the funding formulas the federal government used to provide these services, as well as their definition of Jordan’s Principle—a principle intended to ensure First Nations children have access to the same healthcare and social services as non-Indigenous children. For a more detailed background on Jordan’s Principle and the Canadian Human Rights Tribunal’s previous rulings on this case, please see our previous blog post on the subject here.

In 2016, the Tribunal found that the Caring Society’s complaint was substantiated and the federal government’s provision of child and family services “resulted in denials of services and created various adverse impacts for many First Nations children and families living on reserves (para 458).” The Tribunal ordered the federal government to cease its discriminatory practice and to take measures to redress and prevent it. At the time of the judgement, the Tribunal stated that it had outstanding questions regarding the determination of compensation and deferred its ruling on the matter until those questions were answered.

The 2019 Decision

Under s. 53 of the CHRA, if the complainant’s claim of discrimination is substantiated, the Tribunal may order the person (or entity) found to be engaging in the discriminatory practice to financially compensate the victim. Specifically, under s. 53 (2)(e) the Tribunal can order the person to pay up to $20,000 for pain and suffering that the victim experienced as a result of the discriminatory practice. Additionally, under s. 53(3), the Tribunal may order the person to pay an additional $20,000 where the person is found to be “engaging … in the discriminatory practice wilfully or recklessly.”

In order to calculate the appropriate amount of compensation under s. 53(2)(e), the Tribunal had to determine whether the federal government’s discriminatory behaviour resulted in harm to First Nations children, and the extent of their pain and suffering. In determining the appropriate amount of compensation under s. 53(3), the Tribunal had to assess whether Canada was aware of its discriminatory practices. These two sections of the CHRA provided the Tribunal with the authority to award a maximum of $40,000 to each victim of discrimination.

The Tribunal stated that it had heard extensive evidence demonstrating that First Nations children were denied essential services after significant and detrimental delays, causing harm to the children and their parents or grandparents caring for them. For example, some children were required to stay in hospital longer than was medically required, often away from their home communities, while their families waited on funding approval for medical equipment that they needed in order to leave the hospital. In some cases that approval never came.

The Tribunal further stated that the evidence showed some children and their families experienced serious mental and physical pain as a result of the delays and denials in services. Due to the funding formula, many children were removed from their homes and communities in order to access required services. These children were not living in abusive or unsafe homes; however, the only way for them to access services that were available to other Canadian children was to be put in the care of the State. The removal of children from their communities and families was traumatic, and caused great pain and suffering to both the children and their families. As a result, the Tribunal awarded $20,000, the maximum amount allowed for pain and suffering, to each First Nation child that was removed from their home since 2006, and to each of their parents or grandparents where the removal was unnecessary.

Further, the Tribunal found that “Canada’s conduct was devoid of caution with little to no regard to the consequences of its behavior towards First Nations children and their families both in regard to the child welfare program and Jordan’s Principle (para 231).” Canada knew that its policies were harming children, however, the government chose to put their financial interests above the best interests of children. As a result of this wilful and reckless behaviour, the Tribunal awarded each First Nation child that was removed from their home since 2006 and, where the removal was unnecessary, each of their parents or grandparents an additional $20,000, the maximum allowable amount. 

Case Analysis

The Tribunal’s decision to award the maximum amount allowed by statute was rare. The decision repeatedly emphasized that the maximum amount of $40,000 for victims was reserved for the worst cases. The Tribunal also categorized the unnecessary removal of children from their homes, families, and communities as “a worst-case scenario (para 234).”

In 1998, the maximum amount the Tribunal could award victims of discrimination was raised from $5,000 for “reckless or wilful conduct or hurt feelings or loss of self-respect” to $20,000 for pain and suffering and $20,000 for reckless or wilful behaviour (para 5). Since then, the Tribunal has only ever ordered compensation to the maximum amount in both categories once: in Alizadeh-Ebadi v. Manitoba Telecom Services in 2017. This case involved an employee facing sustained discrimination at his workplace for over twelve years. Clearly, the Tribunal does not order the maximum amount of compensation lightly.

The impact of awarding the maximum amount allowed by statute to the victims cannot be overstated. In its decision, the Tribunal addressed the victims of Canada’s discriminatory actions directly, stating: “No amount of compensation can ever recover what you have lost, the scars that are left on your souls or the suffering that you have gone through as a result of racism, colonial practices and discrimination (para 13).”

While the compensation of $40,000 cannot be considered proportional to the pain suffered by First Nations children and their families, ordering the maximum amount allowed by statute to be paid to each victim of Canada’s racial discrimination recognizes the severity of the discrimination the Tribunal adjudicated. Further, it attaches the highest price tag it can onto the government placing its own interests above the best interests of children over whom it has a responsibility.

According to the final report of the Truth and Reconciliation Commission,

“Reconciliation is about establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country. In order for that to happen, there has to be awareness of the past, acknowledgement of the harm that has been incited, atonement for the causes, and action to change behaviour.”

pg. 6-7

In this decision, the Tribunal acknowledged the past and detailed the specific harms of the government’s behaviour. It attempted, to the best of its ability given the authority it had as set out by statute, to ensure atonement for the harms caused, through public renouncement and financial compensation. This decision also provides an impetus for the federal government to change its behaviour, as a financial cost is now associated with every subsequent act the government undertakes that neglects the needs of a First Nation child.

This ruling does not fix the entire First Nations Child and Family Services Program in and of itself. However, it signals to the government of Canada, to First Nations communities, and to the Canadian public, that egregiously discriminatory behaviour by the Canadian government is not acceptable. It signals that the lives of those children and their families impacted matter. And it underscores the importance of community, family, and culture in a First Nation child’s life. In short, it is a significant step towards reconciliation.

On October 4, the Attorney General of Canada filed an application for judicial review of this decision. It calls for an order to set aside the decision and dismiss the claims for monetary compensation. This post will be updated following the release of the Federal Court’s review.

Maya Gunnarsson is the Executive Online Editor of the McGill Journal of Law and Health and a second-year B.C.L./ LL.B. student at McGill University’s Faculty of Law. Maya holds an M.A. in Canadian Studies and Indigenous Studies from Trent University where she focused her research on the role of the media in the ongoing crisis of violence against Indigenous women and girls. Prior to law school, Maya worked as a researcher at the Higher Education Quality Council of Ontario and interned at the Office of the UN High Commissioner for Human Rights in the Indigenous Peoples and Minorities Section.

Improving Health Outcomes through Poverty Reduction: Part II

Contributed by: Gary Lai

The following is Part II of Gary Lai’s investigation into the link between poverty and health outcomes. Part I is available here.

Economic Inequality and Health Inequality

There is a large array of political tools to advocate for the poor in the framework of The Canada Health Act (1984). For Example, Dennis Raphael, from York University, proposed a series of actions to reduce poverty and health inequality. He cited the Health of Canada’s Children Report, which reported a deep divide between the health of children who are poor and those who are not. Statistics Canada attributes 22% of mortality differences among Canadians to income differentials. In the University of Sussex’s Richard Wilkinson’s book Unhealthy Societies, he writes, “increasing economic inequality decreases social cohesion, increases individual malaise, and produces the conditions by which increased mortality and morbidity occur.” Raphael also mentioned that the Ottawa Charter for Health Promotion included income as a basic prerequisite for health. He wrote that the public, organizations, and the government could respond to a public health issue like this through recognition of the impact of politics, government policy development and implementation, and community involvement on health.

Raphael is not the only scholar advocating a political solution. Deanna Williamson, of the University of Alberta, claimed that the health of individual Canadians in poverty requires a concerted effort to alter the “fundamental structural conditions contributing to poverty.” She suggested more research in this area.

Social Determinants of Health

In 2015, Raphael claimed that Canadian public policy created health inequalities, by endowing different socio-economic groups unevenly with various social determinants of health (SDOH). SDOH are, according to the World Health Organization, “the conditions in which people are born, grow, live, work, and age.” They are a product of the “inequitable distribution of power, money, and resources – the structural drivers of those conditions of daily life – globally, nationally, and locally.”

Feeding hungry people through food banks and community food kitchens does not address poverty in the long term || (Source: Flickr // Mike Nice)

Raphael identified Canada as a liberal welfare state, in which the government “provides fewer economic and social supports for the population, universal benefits are sparse, and state provision of modest benefits is targeted at the least well off.” The distribution of wages and benefits is unequal, and the labour sector is weak. Income, housing (the affordability of which is a determinant of poverty), and food security are distributed unevenly as a result. These unevenly endowed SDOH lead to inequalities in the incidences of health-threatening behaviours and psycho-social stress.

There are alternatives to the liberal welfare state, such as social democratic, conservative, and Latin state models. A social democratic welfare state would favour the goals of poverty reduction, equality, and employment over market-driven values. It is possible to deviate from or replace a welfare state model with another. For example, Canada deviated from the liberal welfare model when it embraced a quasi-socialist Medicare system. So, Raphael suggests research as to whether the public supports the current liberal welfare state, which contributes to health inequality through how socio-economic resources are distributed. Another possible area of research is how influential health-oriented charities view SDOH.

Possible Solutions

Patricia Collins, of Queen’s University, and her colleagues observed that feeding hungry people through food banks and community food kitchens does not address poverty in the long term. Moreover, municipal-level initiatives give provincial and federal governments less incentive to reduce income insecurity using social programs. There is, therefore, a need to study the costs of delivering provincial and federal social benefits compared to food-based initiatives.

Since the introduction of Bolsa Família, pregnant women visit their doctors more frequently, and more babies receive all their required vaccines by six months || (Source: Flickr // Pan American Health Organization)

An example of a successful program that addresses the root causes of household food insecurity (HFI) is the Bolsa Família (Family Grant) program in Brazil. Organized in its present form by President Lula in 2003, it is the largest conditional cash transfer program in the world. With a $6.8 billion budget, it serves 13 million families – approximately one quarter of all Brazilian households. The cash transfer to low-income citizens is conditional on educational and health requirements, such as prenatal care and vaccinations. Due to the Family Grant, health care utilization has increased. Pregnant women visited their doctors, on average, 1.5 more times since the grant was introduced. Further, the number of babies who had received all required vaccinations at six months increased by 12-15% following the implementation of the program. Another result of the program was a decrease in income inequality. In a study of the program, in a 2013 issue of Lancet, Davide Rasella, of the Universidade Federal da Bahia in Salvador, and his colleagues found that closing the income gap led to an increase in life expectancy. Family Grant has been widely lauded as a success in poverty alleviation, and, with its positive health implication, could be a seen as an example for the Canadian government.


Engaging with the Canadian Senate Standing Committee on Social Affairs, Science, and Technology may be one pathway to improving health outcomes || (Source: Flickr // Jonathan Nightingale)

The link between poverty and bad health is grounded in decades-long academic research. Poverty and health may even form a vicious cycle, as the late Laval sociologist André Billette conceptualized it or as Collins and her colleagues traced by way of food insecurity. Raphael believed that Canada’s choice of political system was implicated in the determination of health. There are many potential economic, political, and legislative solutions. For example, activists can approach governmental committees, such as the Canadian Senate Standing Committee on Social Affairs, Science, and Technology; the Quebec National Assembly’s Committee on Health and Social Services, or the Ontario Ministry of Children, Community, and Social Services. They can advocate for research into fiscal policies (e.g. Should the government provide more generous federal and provincial social programs? How?) and political matters (e.g. What is the best way to influence anti-poverty policies? Is the liberal welfare state good for public health?). Ultimately, it is important that anti-poverty advocates continue their work, in order to ensure that all Canadians can achieve equitable health outcomes.

Gary Lai holds an MEcon in Economics from the University of Hong Kong, where he has published a paper on Hong Kong’s public health spending. He also holds a B.A. in Economics from the University of Southern California. In between, he attended UBC’s Allard School of Law and Columbia University, where he studied premedical sciences.

Improving Health Outcomes through Poverty Reduction: Part I

Contributed by: Gary Lai


The Canada Health Act (1984) established universal health care in Canada with five principles, one of which is accessibility—insured Canadians should not be impeded from reasonable hospital and physician services. But there is ample evidence that the medical outcome of low-income people is not what was originally intended by the legislation; they are disproportionately less healthy than the rest of the population. The late sociologist and former University of Laval professor André Billette highlighted two studies that looked at health outcomes of the poor in Canada in 1979. One, led by Philip Enterline, formerly a biostatistician at the University of Pittsburgh, found that in Montreal, the poor made the most doctors’ visits. Another was by University of Ottawa’s Pran Manga, who found that, between 1974 and 1975, the lower the family income, the greater the use of all types of medical services – significantly more for members of families making under $4,000 (approximately $18,000 in 2019, when adjusted for inflation).

The lower the family income, the greater the use of all types of medical services || (Source: Flickr // Aimee Dars Ellis )

Nicholas Vozoris and Valerie Tarasuk, of the University of Toronto, observed in 2004 that a family on welfare was more likely to report diseases associated with general, mental, and social health than a respondent household that was not on welfare. In fact, they were even found to be more at risk than members of other low-income groups, including the working poor. Despite finding a correlation, the researchers cautioned that their model could not prove a causal link. That being said, more than 3.4 million Canadians are currently eligible for welfare and Vozoris and Tarasuk’s conclusions would suggest that a significant portion of them may be at risk for income-related health issues, due to problems with hunger, affording special diets and exercise, and buying essential medicine and medical supplies.

The Link between Poverty and Food Insecurity

Patricia Collins, of Queen’s University, and her colleagues claimed there is an established link between poverty and food insecurity, and their associated non-communicable diseases. Household food insecurity (HFI), according to Collins, is the “inability to consume an adequate diet quality or sufficient quantity of food in socially acceptable ways.” 3.8 million Canadians, or 12% of households, were considered food insecure in 2014.

65% of welfare recipients are considered food insecure, with 27% of them being extremely food insecure. 37% of those on worker’s compensation or employment insurance also experience food insecurity. People suffering from HFI report poorer mental, physical, and oral health than the general population. They suffer from diabetes, heart disease, hypertension, and depression at a higher rate than the general population, and these conditions are exacerbated by stagnant or negative income growth in poor households and rising costs of food and basic necessities.

3.8 million Canadians were considered food insecure in 2014 || (Source: Behance // Dr. Jenson Mak )

Studies clearly show that poverty and illness can form a vicious cycle, affirming the work of 19th century British public health pioneers Edwin Chadwick and William Farr. So what can be done about it?

Poverty Reduction Strategies

Billette and his colleague identified four categories of poverty reduction: redistribution of income to the poor; reduction of regional inequalities; community-based, non-social service focused programs, for example, initiatives for young people; and local social services that benefit everyone. Income redistribution can be done in three ways. The government can redistribute through public expenditures on public services, although, citing two studies, Billette found the effectiveness of this approach to be inconclusive. Simple transfer payments – towards universal transfers, old age security, and guaranteed income supplement – are also possible. The third way to redistribute wealth is through corporate and personal income taxes, although the former tends to be passed onto consumers in the form of higher prices and the latter makes low-income Canadians pay more proportionally compared to those in higher income brackets.

Deanna Williamson, of the University of Alberta, claimed, “efforts to improve the health of Canadians are intricately linked to policies and programs that reduce poverty and its negative influences on health.” Her study collected information about health sector initiatives addressing poverty from Health Canada, 12 provincial and territorial health ministries, and 49 of 137 health regions – including Ontario’s district health councils. Specifically, she identified policies, programs, and projects that addressed poverty. 53.1% of the health initiatives Williamson identified focused on poverty and its negative effects on health. 20.5% of the initiatives’ objectives were targeted toward poverty: to raise awareness about poverty, to keep people from becoming poor, to enhance skills in people living in poverty, and to change social and economic conditions leading to poverty. Williamson also found that Health Canada is employing “significantly fewer” strategies to address poverty than ministries at lower levels. In addition, 46.9% of the initiatives targeted marginalized populations such as teen parents and their children, Indigenous peoples, IV drug users, and new immigrants. All of this hints at the infringement upon another tenant of The Canada Health Act, which guarantees that all Canadians are entitled to public health insurance coverage on equal terms and conditions.

According to Williamson, there is an “ever-growing body of evidence about the detrimental effects that poverty has on health…Necessary as individual and family-focused strategies may be in improving the health and quality of life of Canadians in poverty, they do little to reduce the number and proportion of people in poverty. The most effective way to decrease the negative health consequences of poverty is, first and foremost, to reduce poverty.” Some of the causes of poverty are changing labour market conditions and insufficient social assistance benefits and minimum wages.

8660821435_56bf08e951_b Food banks and community food kitchens are among some poverty alleviation strategies || (Source: Flickr // Andrew Belt )

Collins and her colleagues found a correlation between the risk of HFI and decreasing income. They proposed a model to address HFI, in which poverty alleviation works alongside charities (like food banks), household improvements and supports (like community food kitchens), and community food systems (like food charters). These are all municipal-level efforts. The scholars predicted that generous income support programs (like social assistance, child care benefits, and housing supports) from the government would resolve the root causes of poverty in the community.

Next Steps

With the link between poverty and poor health established, I will now turn my attention to possible solutions. Economic solutions – from the macro to the micro levels – exist as well as community-based, governmental, and legislative channels. In any case, poverty must be addressed as a component of improving health outcomes for low-income Canadians.

I will continue my investigation into the link between poverty and poor health outcomes, as well as explore possible solutions to poverty-related health inequities in Part II.

Gary Lai holds an MEcon in Economics from the University of Hong Kong, where he has published a paper on Hong Kong’s public health spending. He also holds a B.A. in Economics from the University of Southern California. In between, he attended UBC’s Allard School of Law and Columbia University, where he studied premedical sciences.

MJLH Podcast 2019 – Surrogacy Law


Currently, Section 6 of the Assisted Human Reproduction Act prohibits payment to surrogates. The only type of legal surrogacy is voluntary and benevolent, and there is no legal framework surrounding it. Parliament is exploring the idea of amending the Assisted Human Reproduction Act in order to decriminalize commercial surrogacy.

This podcast features 4 interviews that touch on a range of issues relating to surrogacy, including a contractual aspect, proposed legislation, and social concerns, to name a few. We hope to explore different perspectives to develop a better idea of surrogacy laws in Quebec and the rest of Canada – how they exist now, how and why they have developed in this direction, and where they may be headed.

podcast photo 2
From left to right: Sidney Rotchin, Bianca Braganza, MP Anthony Housefather

podcast photo 1
From left to right: Sidney Rotchin, Bianca Braganza, MP Anthony Housefather


Professor Rosalie Jukier, Dr. Kathleen Hammond, MP Anthony Housefather,

Stefanie Carsley Ph.D Candidate


Bianca Braganza (BCL/LLB Candidate), Sidney Rotchin (BCL/LLB Candidate)


Laura Michaud-Ouellette (PharmD, BCL LLB Candidate)


Constitutionalization of the Right to Health: a Pathway to Improved Health Outcomes?

Contributed by: Maya Gunnarsson


This February, the McGill Journal of Law and Health hosted a conference on Access to Care and the Constitutionalization of the Right to Health.  One panel featured two experts on the right to health and the Canadian constitution.  The general argument for the constitutionalization of health is that it will lead to better health outcomes within a society.  The panellists, however, questioned this assumption.  This article will highlight some of the challenges associated with the constitutionalization of the right to health, as well as explore how this process has played out in other countries.

What is the right to health?

The concept of health being linked to human rights first emerged internationally in the middle of the 20th century, along with the rise of international organizations such as the United Nations  and it’s related agencies. The preamble of the World Health Organization’s constitution, which came into force in 1948, declares:

Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.

The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being […].

Governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures.

Article 25 of the Universal Declaration of Human Rights (1948) states that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family.”  Since then, this right has been reinforced internationally through various international treaties and declarations, such as the International Covenant on Economic, Social, and Cultural Rights.

Beyond international obligations, over half of all constitutions globally recognize a right to health today.  As the concept of health as a human right has been entrenched around the world, and as countries have adopted legislation to protect this right, the question of what constitutes health arises.  Does a right to health simply mean a right to access healthcare? Or is a more holistic view that addresses the various social determinants of health necessary?

The debate over what is encompassed by ‘health’ is central to the discussions on the constitutionalization of the right to health.  When the right to health is offered constitutional protections, if framed as a positive right, this can mean that the government has an obligation to ensure everyone has access to the services, programs, and treatments that they require to maintain their health.  If a government fails to provide access to these things, the courts can step in and order the government to do so.  This is in contrast to negative rights, which protect individuals from disparate effects of governmental legislation, but do not entitle individuals to any benefits from the State.

The debate over what is encompassed by ‘health’ is central to the discussions on the constitutionalization of the right to health.

With a more limited conceptualization of health, this right could compel governments to ensure all of their citizens have access to adequate healthcare services. A more expansive understanding of health, however, could require governments to ensure that individuals have access to things such as affordable housing, drinking water safe for consumption, and/or food security. Constitutionalizing the right to health imposes burdens upon governments. Without clearly delineating what those burdens are, the interpretation of them is left to the judiciary.

The impact of constitutionalizing the right to health

Advocates of constitutionalizing the right to health argue that when the right to health is afforded constitutional protection, individuals will have better health outcomes, and that courts can be used to protect the health outcomes of the most vulnerable individuals in society.  In effect, they believe that the constitutional protection of health rights will lead to better and more equitable health outcomes for society.

Opponents of the constitutionalization of the right to health, however, point to examples of countries such as Brazil, where the constitutionalization of the right to health has actually had a negative impact on the country’s overall health.  They claim that providing constitutional protections to health rights leads to middle-class and wealthy individuals using the courts to ensure access to costly, non-critical treatments, which takes money away from providing care to the most vulnerable in society.

Various studies have been performed on the effectiveness of constitutionalizing the right to health in terms of increasing health outcomes, and the results have been mixed.  One study, which looked at data from 144 countries over 40 years, found that the right to health has positive effects for the overall health of a population, as it ensures access to more and better health services, including medicines. Another study, which looked at 195 countries over 15 years, found that the right to health led to increased public expenditures on healthcare, but mixed results on health outcomes.

Among countries that have the right to health entrenched in their constitutions, one study identified two main ways in which this right has impacted public health.  In the first method, judicial enforcement occurs primarily through individual lawsuits, resulting in specific orders for the individuals involved to receive certain treatments from the government.  By contrast, the second method involves the judiciary ordering broader changes to national health policies.

Lessons from Abroad

The individualistic approach is the one that garners the most criticisms. This is because it can often lead to the reallocation of limited healthcare resources away from programs that benefit a large percentage of the population, towards the few individuals who are able to make claims through the courts.  Opponents say that policy makers are in the best position to allocate healthcare funding to maximize the benefit throughout society as a whole.  The judiciary in countries such as Brazil and Costa Rica have been criticized for their lack of cost-benefit ratio assessments in their judgements.  The approach of Brazil’s courts has been described as “applying the right to health as a trump against rationing decisions.” Further, due to their lack of medical knowledge, judges are not always in the best position to determine if a specific treatment is necessary, high-priority, or cost-effective.  Essentially, healthcare policy is complex and multi-faceted; judgements that only consider individual rights can have far-reaching unintended consequences for the wider system.

The judicial approach to the constitutionalization of the right to health in countries such as South Africa has favoured rulings directed at broader health policy, rather than individual cases.  Though not without its critics, this approach has been praised for the positive impact judicial intervention has played on health policy and health outcomes.  For example, the South African government’s response to the HIV/AIDS crisis in the late 1990s and early 2000s was seen by many as inadequate.  In 2002, Treatment Action Campaign (TAC), a South African activist organization, brought a constitutional challenge against the government for their unreasonable response to the crisis.  The court ruled in TAC’s favour, leading to healthcare policy reforms and an updated strategy to address HIV/AIDS in the country.

Indian courts have taken a similar approach to South Africa, in ordering changes to broader healthcare policies.  For example, in 1996, in Paschim Banga Khet Mazdoor Samity v State of West Bengal, the complaint of a man who had been turned away by six hospitals due to a lack of beds in the state of West Bengal reached the Supreme Court.  They ruled that the denial of timely medical care constituted a violation of his constitutional right, and that “the State cannot avoid its constitutional obligation […] on account of financial constraints.”  This decision outlined what the government must do to ensure that proper medical facilities were available to deal with emergencies, in order to meet their constitutional obligations. Notably, India’s constitution does not make direct reference to a right to health; rather, provisions on the right to life, personal liberty, and welfare have been interpreted to include the right to health.

Canadian Context

Canadian courts have been reluctant to interpret section 7 of the Canadian Charter of Rights and Freedoms as including a right to health, as was the case in India with similarly worded constitutional provisions. The Supreme Court of Canada, through cases such as Chaoulli and Carter, has favoured an interpretation of sec. 7 that views the right to life in a strictly literal sense, meaning it is only engaged when there is a risk of death. Many proponents of offering constitutional protections to the right to health in Canada believe that broadening the interpretation of sec. 7 would be a far simpler route to constitutionalizing the right to health than amending the constitution.  The question remains however, whether such constitutional protections would actually improve health outcomes in Canada.  If the Canadian judiciary were to open its doors to this type of protection in the future, they may look to their foreign counterparts for lessons on how to enforce this right in an equitable way, without creating the same barriers to health that currently exist for accessing justice in Canada.

Maya Gunnarsson is a Junior Online Editor of the McGill Journal of Law and Health and a first-year B.C.L./ LL.B. student at McGill University’s Faculty of Law. Maya holds a M.A. in Canadian Studies and Indigenous Studies from Trent University where she focused her research on the role of the media in the ongoing crisis of violence against Indigenous women and girls. She also holds a B.A. in Political Science from McGill University.  Maya has worked as a researcher at the Higher Education Quality Council of Ontario and interned at the Office of the UN High Commissioner for Human Rights in the Indigenous Peoples and Minorities Section.