The Charter and Health Spending

Today's Court of Appeal decision in Flora v. Ontario Health Insurance Plan, 2008 ONCA 538 clarifies when the Charter will apply to government health spending.

There is no constitutional right to government funding for health care.

So long as government action neither prescribes nor limits the types of medical services available it will not breach the Charter.

The Court holds:

[93] Before this court, Mr. Flora renews his claim that s. 28.4(2) of the Regulation offends s. 7 of the Charter. He argues that: (i) the denial of his OHIP Application deprived him of access to a life-saving medical treatment, thereby violating his s. 7 rights to life and security of the person; (ii) the state also deprived him of his s. 7 rights by amending, in 1992, a predecessor version of the Regulation that would have provided funding for his LRLT on the basis of medical necessity; (iii) in any event, s. 7 imposes a positive obligation on the state to provide life-saving medical treatments, thus obviating the need for a finding of state action amounting to deprivation; and (iv) finally, s. 28.4(2) does not comport with the principles of fundamental justice. For the reasons that follow, I conclude that Mr. Flora's Charter s. 7 claim fails.

[94] In R. v. Beare, [1988] 2 S.C.R. 387 at 401, the Supreme Court of Canada described the requirements for the invocation of s. 7 of the Charter in these terms:To trigger its operation there must first be a finding that there has been a deprivation of the right to 'life, liberty and security of the person' and secondly, that that deprivation is contrary to the principles of fundamental justice.

See also Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at para. 47; Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519 at para. 70; and Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, per McLachlin C.J. and Major J. (Bastarache J. concurring) at para. 109.

[95] The Divisional Court concluded that Mr. Flora had failed to demonstrate that the Regulation constituted a deprivation by the state of his rights to life or security of the person and that this deficiency was fatal to his Charter s. 7 claim. I agree.

[96] In Chaoulli, supra the Supreme Court was concerned with a Quebec health care-related statute that limited access to private health services by removing the ability to contract for private health insurance in respect of those services covered by provincial public insurance. Chief Justice McLachlin and Major J. held at para. 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."

[97] Chief Justice McLachlin and Major J. also held that the potential denial of timely health care for a condition that is clinically significant to a patient's current or future health engages security of the person under s. 7 of the Charter (at paras. 111 and 112). Moreover, "[W]here lack of timely health care can result in death, s. 7 protection of life itself is engaged" (at para. 123). See also the reasons of Binnie and LeBel JJ. at para. 200 and Deschamps J. at paras. 38-40.

[98] In Chaoulli, the pivotal consideration was the fact that the impugned prohibition on private health insurance "conspired" with excessive costs in Quebec's public health care system to force Quebeckers onto the wait lists that pervaded the public system. It was this connection between the statutory prohibition on private health insurance and the delays in the public system that anchored the Chaoulli holding that the wait lists constituted a deprivation of rights protected under s. 7. In other words, the statutory prohibition in issue was directly linked to the harm suffered by Quebeckers who were compelled by the prohibition to rely on the public health care system and to endure the consequences of significant wait lists.

[99] A similar link between state action and delays in accessing health care grounds the Supreme Court of Canada's decision in R. v. Morgentaler, [1988] 1 S.C.R. 30. In that case, the Supreme Court concluded that the s. 7 right to security of the person for women was jeopardized by the mandatory therapeutic abortion committee system established by the Criminal Code, which forced women who sought abortions to suffer significant delays in treatment with attendant physical risk and psychological suffering. Morgentaler at p. 59 per Dickson C.J. and at pp. 105-6 per Beetz J., Estey J. concurring.

[100] To similar effect is the Supreme Court's decision in Rodriguez v. British Columbia (1993), 107 D.L.R. (4th) 342, which holds that governmental interference with a citizen's bodily integrity – such as a criminal law prohibition on assisted suicide – constitutes a deprivation of security of the person under s. 7.

[101] These cases are clearly distinguishable from the case at bar. In contrast to the legislative provisions at issue in Chaoulli, Morgentaler and Rodriguez, s. 28.4(2) of the Regulation does not prohibit or impede anyone from seeking medical treatment. Section 28.4(2) neither prescribes nor limits the types of medical services available to Ontarians. Nor does it represent governmental interference with an existing right or other coercive state action. Quite the opposite. Section 28.4(2) provides a defined benefit for out-of-country medical treatment that is not otherwise available to Ontarians – the right to obtain public funding for certain specific out-of-country medical treatments. By not providing funding for all out-of-country medical treatments, it does not deprive an individual of the rights protected by s. 7 of the Charter.

[102] This conclusion is supported by the recent decision of this court in Wynberg v. Ontario (2006), 82 O.R. (3d) 561. In that case, the claimants asserted a violation of s. 7 in the context of the Ontario government's failure to fund intensive behavioural intervention for autistic children over a certain age. Central to the court's rejection of the s. 7 claim in Wynberg was its conclusion that the impugned legislation did not create a mandatory requirement that school-age children attend public school; nor did it otherwise compel such attendance. As a result, the claimants were free to pursue intensive behavioural therapy in the private sector and their s. 7 rights were not violated. Similar defects apply here in respect of Mr. Flora's s. 7 claim.