“How Many MRIs Does the Constitution Require?” The Complicated Question of a Right to Health Care in Canada (Part I)

Is there a constitutional right to health care in Canada? Well… it’s complicated.

On its face, the Supreme Court has been fairly clear: there’s no broad, guaranteed right to health care under the Charter of Rights and Freedoms.[1] This can seem surprising, especially since Canada’s universal health care system is widely regarded as a core part of the country’s identity. But the issue isn’t off the table entirely and at the heart of this debate is a key distinction: positive vs. negative rights.

The distinction between a negative and a positive right lies in the role played by the state in how the right is actualized. In simple terms, negative rights require the government to refrain from taking actions that interfere with a specific interest, such as censorship or unreasonable seizures of property. In contrast, positive rights obligate the government to provide or enable access to something, like health care, housing, or education.

The Charter is often framed as a collection of negative rights. But there are exceptions to this framing. Section 23, for example, requires governments to provide minority language education, so that Francophone parents in predominantly Anglophone provinces can have their children taught in French (and vice versa).[2] Additionally, there are positive dimensions to rights that are generally considered negative, such as the rights guaranteed by section 3, which protects the right to vote and implicitly imposes an obligation on government to facilitate voting access.[3] So, there is some degree of recognition, albeit narrow, for positive rights.

For the most part, however, the Supreme Court has been cautious in interpreting the Charter to include positive rights in the socioeconomic context (e.g. in relation to health care, housing, education). In select cases, surveyed below, the boundaries have been tested under sections 7 and 15.[4] While these are very thinly carved out spaces, they indicate that governments are not immune from Charter scrutiny when distributing health care services, even when matters of policy and discretion are at play.

So, “[h]ow many MRIs does the Constitution require?”[5] As of right now, the answer seems to be none. But that doesn't mean the conversation is over. In a system where health care is so closely tied to dignity and equality, courts may still be called upon to define the boundaries of government responsibility in the field, perhaps even to the point of articulating positive rights to certain forms of care.

Constitutional Equality as a Positive Right: Lessons from Eldridge

Equality rights under section 15 have become central in the context of public benefits like health care. In the landmark case Eldridge v British Columbia (Attorney General), the Supreme Court of Canada tackled the issue of unequal access to publicly funded health services.[6] In Eldridge, the Court held that the BC government’s failure to provide sign language interpreters for deaf or hard of hearing patients violated their section 15 equality rights. Without this accommodation, deaf individuals were effectively excluded from fully benefiting from an essential public service and the government’s inaction amounted to discrimination that was found to be unjustified and unconstitutional. As the Court put it: “the adverse effects suffered by deaf persons stem … from a failure to ensure that deaf persons benefit equally from a service offered to everyone.”[7] This analysis shows that it is the shortfall of services meant to be provided equally that triggers an impetus on governments to then act in a positive manner.

Though it may seem intuitive that publicly funded health care must be delivered without discrimination, Eldridge reveals the deeper implications of that principle. This was a turning point in the jurisprudence, establishing a minimum standard for what meaningful equality requires and affirming that when governments provide a benefit like health care, they have a constitutional duty to address barriers that prevent equal access — particularly when those barriers are created or perpetuated by the state itself. As the Court reiterated: “in many circumstances, this will require governments to take positive action, for example by extending the scope of a benefit to a previously excluded class of persons.”[8] This underscores the positive obligations governments bear, not merely to refrain from discrimination, but to take active steps to ensure their services reach everyone equally.

Importantly, Eldridge reflects a judicial willingness to scrutinize and, where necessary, reshape how governments deliver critical public services. At its core, it affirms that governments have an obligation to ensure equality by removing barriers to enable meaningful inclusion.

The result of this is not a freestanding right to health care delivery, however. Rather, once the government has undertaken the provision of publicly-funded health care, it must fund those services so they are equally accessible to all, i.e. to make sure those services are Charter compliant. In this way, Eldridge illustrates the complementary nature of positive and negative rights, and how certain rights have dual elements. The negative right in question is that section 15 protects against state imposed discrimination while the positive aspect lies in how this is achieved: through proactive state action that removes inequality.

The Growing Potential of Section 7

“One day s. 7 may be interpreted to include positive obligations.”[9] These words, written by Chief Justice McLachlin in the 2002 Gosselin case, reflect a cautious but open-ended view of section 7 of the Charter, which guarantees rights to life, liberty, and security of the person. She emphasized that “it would be a mistake to regard s. 7 as frozen, or its content as having been exhaustively defined.”[10] Her perspective aligned with the well-known living tree doctrine, which holds that the Constitution is “capable of growth and expansion within its natural limits” and must evolve in response to changing social and political contexts.[11]

If McLachlin’s words in Gosselin hold true, then the two decades since that decision may only underscore the growing social and legal context in which a positive right under section 7 could take shape. In several decisions since Gosselin, the Supreme Court has acknowledged that section 7 may impose positive obligations on governments to protect life, liberty, and security of the person. This section of the Charter is naturally connected to the health care context, given the profound effect that access to timely treatment has on a person’s physical and psychological well-being. It is therefore no surprise that governments have repeatedly faced challenges under section 7 in relation to how they fund, regulate, and deliver health care services.

One notable case where section 7 was directly engaged is Chaoulli v Quebec (Attorney General).[12] In this case, the appellants challenged Quebec’s prohibition on private health insurance, arguing that, when combined with long and often painful wait times in the public system, the ban deprived individuals of access to health care in a manner that infringed their section 7 rights. While the concurring opinion of Chief Justice McLachlin and Justice Major held that “the Charter does not confer a freestanding constitutional right to health care,” it also emphasized that “where the government puts in place a scheme to provide health care, that scheme must comply with the Charter.”[13] In response to this principle, the Court found it was unlawful to ban private health insurance when the public system isn’t providing sufficiently timely care.[14]

The case was ultimately decided on Quebec Charter[15] grounds but Chief Justice McLachlin and Justice Major’s concurrence signaled a potential shift in how government obligations under the Charter might be understood. Their reasoning suggests that where barriers exist to adequate care — whether those barriers are created, exacerbated, or ignored by the state — the government cannot simultaneously prohibit alternative means of protecting an individual’s health. This does blur the line between negative and positive rights: Chief Justice McLachlin and Justice Major suggest that the state’s restriction on private insurance would constitute a violation of section 7 (a negative right), but this violation is shaped by the inadequacy of the public health care system as it stands, suggesting a failure to fulfill the state’s positive obligation to ensure timely and effective access to care.[16]

The ability to make medical choices without the government interfering in section 7 rights is also highlighted in Carter v Canada (Attorney General).[17] Carter concerned a Criminal Code provision that criminalized medically assisted death and imposed criminal sanctions on doctors and patients who sought this option. The Supreme Court found this violated section 7 by depriving individuals of control over end-of-life medical decisions, worsening the suffering the law aimed to prevent. The case is significant because it recognized that section 7 can protect certain medical choices and that meaningful access to those choices may require the state to ensure a supportive legal framework (once again, blurring the line between positive and negative rights).[18] 

Perhaps the most striking development is found in Canada (Attorney General) v PHS Community Services Society (“Insite”).[19] There, the Supreme Court of Canada held that the federal Minister of Health’s refusal to renew an exemption for a supervised injection site violated section 7 of the Charter. This decision is significant because it compelled the government to take a specific action — granting the exemption — in a context typically viewed as a space for discretionary policy-making. Importantly, in acknowledging that the Minister had discretion, the Court clarified that “the Minister must exercise that discretion within the constraints imposed by the law and the Charter.”[20] As a result, the Court not only overturned the Minister’s decision, but also ordered the exemption be granted, marking a rare example of the Charter imposing a clear positive obligation on government action. 

This case marks an instance where the Court imposed a positive duty on the government to ensure access to a life-saving service, reinforcing the idea that constitutional protections can include obligations to act, not just to abstain from interference. But this positive obligation is complicated by the fact that it involves exempting people from harmful government action (i.e. the criminal laws prohibiting drug consumption) while still allowing the laws to generally operate everywhere else. Therefore, alongside the positive obligation to grant an exemption is the negative right to not be harmed by criminal laws that worsen a vulnerability. Thus, Insite can be seen as primarily protecting negative rights by preventing harmful government actions, such as shutting down the facility, rather than imposing a broad positive duty to provide comparable services.

This is reflected in the ruling’s fact specific nature concerning a unique facility operating under exceptional circumstances, providing an experimental but lifesaving intervention. The Court didn’t require the government to create or maintain similar services elsewhere, but rather focused on whether the government could deny an exemption that would effectively shut down this specific facility.

[Part II of the article forthcoming, November 2025]

***

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] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[2] Ibid, s 23.

[3] Ibid, s 3.

[4] Ibid, ss 7, 15.

[5] See Chaoulli v Quebec (Attorney General), 2005 SCC 35 at para 163, Binnie and LeBel JJ, dissenting [Chaoulli].

[6] Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 [Eldridge].

[7] Ibid at para 66.

[8] Ibid at para 73.

[9] Gosselin v Québec (Attorney General), 2002 SCC 84 at para 82.

[10] Ibid.

[11] Edwards v Canada (Attorney General), [1930] AC 124, 1 DLR 98 (UK JCPC) at 136.

[12] Chaoulli, supra note 5.

[13] Ibid at para 104, McLachlin CJC, Major J concurring.

[14] Ibid at para 124. 

[15] Charter of Human Rights and Freedoms, CQLR c-12.

[16] See also Canada (Attorney General) v Bedford, 2013 SCC 72 (striking down of criminal laws adversely limiting sex workers’ safety), and Victoria (City) v Adams, 2009 BCCA 563 (striking down of bylaws that prohibited unhoused individuals’ shelters in public spaces), where the courts recognized that section 7 violations can arise not only where the state directly harms someone, but also where the state prevents someone from protecting themselves from deprivations of section 7 interests.

[17] Carter v Canada (Attorney General), 2015 SCC 5 [Carter].

[18] See also R v Morgentaler, [1988] 1 SCR 30, where Justice Wilson (concurring) emphasized that section 7 protections can include the liberty to make deeply personal medical choices (e.g. abortion).

[19] Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 [Insite].

[20] Ibid at para 151.