- Areeba Ismail
- Nov 21
- 5 min read
Drawing the Line: The Constitutional Boundaries of Positive Rights
As the jurisprudence discussed in Part I of this article suggests, the question of whether the Charter can be expanded to include a positive right to health care is deeply controversial and will likely remain so for the foreseeable future. This debate highlights a persistent tension between courts and legislatures, which courts have traditionally been reluctant to exacerbate through recognition and enforcement of positive rights. There are various reasons for this reluctance, but the primary one is probably a fear that positive rights enforcement would involve courts stepping into complex resource allocation decisions that lie beyond their expertise and democratic legitimacy.
Imposing broad positive obligations on governments to implement health care in specific ways does risk encroaching on the domain of elected officials responsible for making those policy choices. Etienne Mureinik captures this risk when he states that: “an economic [or broader positive] right can be realized in more than one way, and … judges lack the expertise and the accountability which would qualify them to choose among the alternatives.”[1] Jeff King addresses this argument, however, when he suggests that prioritizing and deferring to the expertise of elected officials sidelines oversight and eliminates accountability.[2] This is why, in judicial review, “judges rightly review expert decisions even when it is clear that the experts know the relevant field better than they do.”[3] So while concerns around democratic legitimacy and expertise are important, an overreliance on them would prevent not just the enforcement of positive rights, but also any sort of government accountability.
In Canada, the cautious approach taken by courts is reflected by scholars like Lawrence David who argue that section 7 jurisprudence reflects a hybrid approach to positive rights.[4] Specifically, he suggests that the “acceptable positive right is procedural in nature,” such as a right related to fair administrative or criminal processes.[5] This procedural dimension is more readily embraced by courts because it aligns naturally with their role, unlike more expansive substantive positive rights that could require courts to engage in policy decisions traditionally reserved for legislatures. The bottom line is that courts are generally not in the business of directing social policy, but the reality is that they cannot always avoid it. Indeed, the line between interpreting constitutional rights and shaping policy can become blurred, especially as courts respond to evolving understandings of rights in a changing society.
Justice Arbour addresses these concerns somewhat in her dissent in Gosselin: “While it may be true that courts are ill-equipped to decide policy matters concerning resource allocation — questions of how much the state should spend, and in what manner — this does not support the conclusion that justiciability is a threshold issue barring the consideration of [a] substantive claim.”[6] Justice Arbour’s point here is that the institutional limitations that define courts should not be used as a barrier to litigation on positive rights grounds. Rather, Justice Arbour argues that “one can in principle answer the question of whether a Charter right exists … without addressing how much expenditure by the state is necessary in order to secure that right,” and that it is, in fact, precisely the role of the courts to interpret and guard the Charter by taking part in such thought exercises.[7]
Moreover, while governments may be best positioned to design and implement social policies given their access to high-level expertise and their democratic mandate, individuals turn to courts precisely because governments have failed to provide an adequate level of service. This is why scholars like Jeremy Webber argue that although courts may lack institutional capacity to resolve every policy-related question, there will still inevitably be cases like Insite, where deference to legislatures is not appropriate and judicial intervention is necessary to mitigate serious individual and social harms.[8]
While courts tend to defer to legislatures on matters of policy, their role in interpreting the Charter means they inevitably influence how certain policies will be developed and applied (that’s just how the Charter works). What’s important, however, as Etienne Mureinik says, is that constitutional review is only about “reviewing policy choices, not making them,” leaving the actual implementation of a right purely in the hands of governments.[9] In this sense, when courts recognize and enforce positive rights they’re not making specific policy choices, but creating a framework within which such choices become subject to legal scrutiny, ensuring that governments are held accountable for their decisions. Recognizing positive rights establishes a floor below which governments cannot fall, much like a negative right sets a ceiling they cannot exceed.
The concern remains, however, over which specific aspects of health care fall within the courts’ purview. Insite and Carter involved government actions (i.e. criminal regulation preventing lawful self-protection) that led to life-or-death consequences, prompting judicial intervention to prevent serious harm. Similarly, in Eldridge, the Court found that failing to provide interpreters infringed on a fundamental aspect of health care delivery — communication between patient and physician — without which effective treatment could not occur. These are cases that arguably sit on different parts of the positive-negative rights spectrum, but they all concern the denial of access in a way that undermines the essence of care.
But where should courts draw the line between what constitutes a core aspect of health care and what is peripheral? This distinction is critical, as it defines the boundary between judicial enforcement of constitutional rights and deference to legislative policy choices. For instance, could delays in non-urgent surgeries or restrictions on access to experimental treatments rise to the level of a constitutional issue in the right context?[10] And is the refusal or failure to provide adequate treatment to remote populations contrary to Charter rights? These kinds of questions illustrate the ongoing challenge of determining who gets to make decisions regarding resource allocation in the health care context.
Conclusion
The future day envisioned in Gosselin may not have arrived just yet, but as Canadians continue to grapple with a strained and inequitable health care system, the pressure to define the constitutional contours of government responsibility in relation to health care is growing. Ultimately, the evolving jurisprudence suggests that while the Constitution does not mandate a comprehensive entitlement to health care, it also does not allow governments to regulate, fund, and deliver health care services without constitutional oversight. A growing body of case law — particularly under sections 7 and 15 — has carved out limited but meaningful obligations vis-à-vis state-funded health care. In this shifting landscape, the Charter may increasingly serve not only as a shield against exclusion, but as a framework for demanding greater accountability in how care is delivered.
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Areeba Ismail is a 3L at the University of Alberta’s Faculty of Law and was a Centre for Constitutional Studies Summer Student (2025)
[1] Etienne Mureinik, “Beyond a Charter of Luxuries: Economic Rights in the Constitution” (2017) 8:4 SAJHR 464 at 468 .
[2] Jeff King, “Expertise” in Jeff King, Judging Social Rights (Cambridge University Press: 2012) 211.
[3] Ibid at 248.
[4] David Lawrence, “A Principled Approach to the Positive/Negative Rights Debate in Canadian Constitutional Adjudication” (2014) 3:1 Const Forum Const 41.
[5] Ibid at 44.
[6] Gosselin v Québec (Attorney General), 2002 SCC 84 at para 332.
[7] Ibid.
[8] Jeremy Webber, “Section 7, Insite and the Competence of Courts” (2011) 19:2 Const Forum Const 125.
[9] Mureinik, supra note 1 at 472.
[10] See also Auton (Guardian ad litem of) v British Columbia (Attorney General), 2004 SCC 78, where the Supreme Court declined to extend section 15 protections to a claim for an experimental therapy, emphasizing deference to government decisions in health care and narrowing the scope of equality rights compared to Eldridge.