Footnote:
In: 6 ESR Review: Economic and Social Rights in South Africa, 2005
Nach Informationen von SSRN wurde die ursprüngliche Fassung des Dokuments 2005 erstellt
Description:
In Chaoulli v Quebec, the Supreme Court of Canada considered whether the right to “life, liberty and security of the person” should be interpreted to include the right to health care and, if so, what role the courts have in overseeing compliance with this right. In the context of unreasonable waiting times violating the right to life and security in the public system, a majority of the Court found that prohibiting access to private insurance violated article 1, the right to life, under the Quebec Charter. There was no majority ruling on whether the Canadian Charter of Rights was violated. The lower courts, in dismissing the application of an advantaged applicant, drew on the Charter's core purpose of protecting vulnerable groups in society. Such an analysis is wanting in the judgment by the Supreme Court. If waiting times in the public system violate the right to life and security, what about the plight of the many who cannot afford private insurance or who will not qualify for it because of illness? Are their rights to life and security also not in need of a remedy? The Court made no remedial order based on their finding. It was left up to the Government of Quebec, and other governments in Canada, to consider whether the appropriate remedy in light of the Court’s finding is to ensure the protection of fundamental rights in the public system, or, instead, to provide a remedy of access to private insurance that can only be effective for advantaged groups. Civil society will need to mobilise to ensure that governments in Canada recognise, in a way that the Supreme Court failed, that the right to health is a right of every person in Canada, and that it is not up for sale