The Canadian Charter of Rights and Freedoms has been described as a symbol of Canadian identity. It is a fundamental part of our constitution, yet the notion of protecting our rights and freedoms is something which is often misunderstood.
In 1983, soon after the Charter‘s inception, Peter Russell described the notion of protection as something which was often explained as either present or not. Instead, as he stated in his article, “The Political Purposes of the Canadian Charter of Rights and Freedoms,”
…in our actual civic experience we do not encounter these rights and freedoms in such a zero-sum fashion. We enjoy more or less of them. What we have to settle about these rights and freedoms is not whether or not we will “have” them but what limits it is reasonable to attach to them and how decisions about these limits should be made.
The scope and the extent of the Charter continues to be explored by the courts, who define and redefine what exactly its provisions mean. The extensive history of Charter litigation gives a very complex and nuanced approach to balances in Canadian law, and an approach which is carefully tailored to the realities of modern society.
One issue which helps illustrate these realities is how Canada responds to the medical needs of immigrants and refugees who arrive here. In 2012, the Federal government enacted two Orders in Council, on April 4 and June 28, which created the Interim Federal Health Program (IFHP).
The IFHP is enacted through the Immigration and Refugee Protection Act (IRPA), and provides health insurance coverage for those refugee and asylum seekers in Canada that cannot afford to pay for health care. This program replaced the previous classification system with one a tiered system, consisting of Designated Countries of Origin (DCO) and non-DCO countries, through which differing levels of healthcare were provided:
- Expanded Healthcare Coverage: similar to the pre-2012 policy, and is essentially the same to that provided to low-income Canadians and those on social assistance
- Health Care Coverage: similar to what working Canadians receive
- Public Health and Public Safety Coverage: providing coverage for diseases posing a risk to public health and safety
- Pre-Removal Risk Assessment: Individuals within this category receive no coverage
The constitutionality of this regime was successfully challenged earlier this year in Canadian Doctors For Refugee Care v Canada (AG), where Justice Mactavish of the Federal Court found a violation of sections 12 and 15 of the Charter. However, she did not find a violation of section 7.
The Federal government filed a notice on Sept. 22, claiming several grounds for their appeal, and notice of their intentions only went public earlier this month.
This case was the basis for the 2014 Paralegal Cup Moot this past weekend. In this scenario, the Crown obviously appealed the sections 12, 15 and 1 findings. More interesting, the claimants in the moot appealed the Federal court decision that there had not been a violation of section 7.
The claimants made the argument before the Federal Court that the refugee program in place must be in accordance with the Charter. The Court stated in Chaoulli v. Quebec,
104 The Charter does not confer a freestanding constitutional right to health care. However, where the government puts in place a scheme to provide health care, that scheme must comply with the Charter…
The governments changes to the plan, and its effects on refugees, was a treatment of them which affected their life, liberty, and security of the person. The claimants also stated that this deprivation was arbitrary, and not done in accordance with the principles of fundamental justice, again quoting Chaoulli,
131 In order not to be arbitrary, the limit on life, liberty and security requires not only a theoretical connection between the limit and the legislative goal, but a real connection on the facts… The more serious the impingement on the person’s liberty and security, the more clear must be the connection…
Justice Mactavish rejected these arguments, stating that a violation of section would create a positive rights obligation on the government to provide health services,
 Does it necessarily follow from this that the decision of the Governor in Council engages section 7 Charter rights? A review of the jurisprudence confirms that it does not.
 In Chaoulli, the applicants succeeded in their section 7 challenge to provincial health care legislation in Québec. However, it is important to note that the Supreme Court was not asked in Chaoulli to require that the Province of Québec fund specific health services for the applicants. Rather, what was at issue was a provincial law that limited access to private health services by prohibiting the individuals from purchasing private health insurance for those services covered by provincial public insurance. What the applicants sought was “a ruling that because delays in the public system place their health and security at risk, they should be allowed to take out insurance to permit them to access private services”: para. 103.
 In other words, the applicants in Chaoulli were not asking the Court to order that the government pay for their private health care. As the Ontario Court of Appeal observed in Wynberg v. Ontario, “on the contrary, they sought the right to spend their own money to obtain insurance to pay for private health care services”: above, at para. 222.
The claimant appeal of this argument is obviously novel, and relies on the Chief Justice’s comment in Gosselin v. Québec (Attorney General),
82 One day s. 7 may be interpreted to include positive obligations. To evoke Lord Sankey’s celebrated phrase in Edwards v. Attorney-General for Canada,  A.C. 124 (P.C.), at p. 136, the Canadian Charter must be viewed as “a living tree capable of growth and expansion within its natural limits”: see Reference re Provincial Electoral Boundaries (Sask.),  2 S.C.R. 158, at p. 180, per McLachlin J. It would be a mistake to regard s. 7 as frozen, or its content as having been exhaustively defined in previous cases. In this connection, LeBel J.’s words in Blencoe, supra, at para. 188 are apposite:
We must remember though that s. 7 expresses some of the basic values of the Charter. It is certainly true that we must avoid collapsing the contents of the Charter and perhaps of Canadian law into a flexible and complex provision like s. 7 . But its importance is such for the definition of substantive and procedural guarantees in Canadian law that it would be dangerous to freeze the development of this part of the law. The full impact of s. 7 will remain difficult to foresee and assess for a long while yet. Our Court should be alive to the need to safeguard a degree of flexibility in the interpretation and evolution of s. 7 of the Charter.
The question therefore is not whether s. 7 has ever been — or will ever be — recognized as creating positive rights. Rather, the question is whether the present circumstances warrant a novel application of s. 7 as the basis for a positive state obligation to guarantee adequate living standards.
The expanding jurisprudence of Charter litigation since Gosselin in 2002 may provide a greater basis for doing so.
In Charkaoui v. Canada, the Chief Justice examined IRPA, but in the context of national security. She stated,
96 The s. 12 issue of cruel and unusual treatment is intertwined with s. 7 considerations, since the indefiniteness of detention, as well as the psychological stress it may cause, is related to the mechanisms available to the detainee to regain liberty. It is not the detention itself, or even its length, that is objectionable. Detention itself is never pleasant, but it is only cruel and unusual in the legal sense if it violates accepted norms of treatment. Denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrarily indefinite and support the argument that it is cruel or unusual. (The same may be true of onerous conditions of release that seriously restrict a person’s liberty without affording an opportunity to challenge the restrictions.) Conversely, a system that permits the detainee to challenge the detention and obtain a release if one is justified may lead to the conclusion that the detention is not cruel and unusual: see Sahin v. Canada (Minister of Citizenship and Immigration),  1 F.C. 214 (T.D.), per Rothstein J. (as he then was).
Although the health services provided through the immigration and refugee program does not effect the same level of detention or treatment as the security certificates discussed in Charkaoui, the comment does create the distinct possibility that such a finding can be made in Canadian Doctors For Refugee Care v Canada (AG) given the Section 12 findings in this case.
We have no indication that the claimants intend to appeal the Section 7 finding of the Federal Court. But if they do not, the moot exercise this past weekend helps illustrate how the new bud on the forever growing tree of Charter jurisprudence may grow in the years to come.