MIL-OSI Europe: Study – Right to health, a comparative law perspective – Canada – 24-05-2022


Source: European Parliament 2

This study forms part of a larger Comparative Law project which seeks to present the right to health in a broad range of legal systems around the world. After analyzing applicable constitutional sources, federal legislation and leading case law, the definition and content, scope and limits, and evolution of Canada’s right to health are explored. The subject of this study is the Canadian legal system. This study begins with an overview of selected historic dangers to Canada’s health, challenges of the Covid-19 pandemic, and how such historic tragedies help contextualize and nurture national health needs and duties towards emergence of a right to health. It then explores leading constitutional, statutory and jurisprudential developments at the confluence of health law and human rights as sources of a right to health. While a right to health is not expressly enumerated in the Canadian Constitution, diverse fundamental rights of the Canadian Charter of Rights and Freedoms have been significant drivers of access to medically necessary services and a protectorate of health-related values. Many such rights have proved pivotal in Canada’s early Covid litigation. As well, federal human rights law, federal legislation on health services and national public health and safety regulations, underscore the vital role that such laws play in accessing, protecting and promoting human health. The document concludes with an exploration of the contours of the right to health – its definitions, scope and breadth, and its interface with fundamental rights to liberty, security of the person, equality, bodily integrity, privacy, etc. Such Charter rights have reformed Canadian law on abortion, euthanasia, health information privacy, solitary confinement. The study suggests that Canada’s right to health encompasses and transcends access to health care. The right is not static; but, dynamic and iterative. It continues to evolve on a spectrum from a narrow right to health services, to a right to health protection, towards a broader right to determinants of health. The right draws on and synergizes with correlative, health-related dignitary rights. Together, they comprise facets of a right to health in diverse contexts. As they advance, a more robust and developed right to health seems likely to emerge in Canadian law.

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