The sections that follow discuss the themes that emerge from Canadian jurisprudence regarding rights to supports under the Charter and human rights legislation.  Within this discussion, the frameworks developed by courts for determining whether a claimant has established a violation of his or her rights are also examined.  These frameworks are crucial because, unless one can fit a claim for supports into the parameters of the established legal test, that claim is bound to fail.  Moreover, examining the frameworks alongside their application in caselaw is important to determine whether and when there is something inherent in the frameworks themselves that precludes courts from imposing positive obligations on government.

 

A. Courts’ Reluctance to Impose Positive Obligations on Government: Section 7

 In various contexts, the Supreme Court of Canada has recognized that a lack of government action may infringe rights and freedoms guaranteed by the Charter.  Stated differently, judges have appreciated that positive government action may be required to give effect to Charter rights and freedoms.  For example, in Reference re Public Service Employee Relations Act (Alberta), Dickson C.J., writing in dissent, explained that a conceptual approach in which “freedoms” in the Charter are said to “involve simply an absence of interference or constraints … may be too narrow since it fails to acknowledge situations where the absence of government intervention may in effect substantially impede the enjoyment of fundamental freedoms …”[14]

 

In this vein, the Court has found that underinclusive legislation may, in some circumstances, substantially impact the exercise of a constitutional freedom.[15]  For example, in Dunmore v. Ontario (Attorney General) the majority of the Court found that the exclusion of agricultural workers from Ontario’s Labour Relations Act, 1995 meant that the workers were substantially incapable of exercising their freedom of association, as protected by section 2(d) of the Charter.[16]  However, the thrust of jurisprudence regarding rights to equality and rights to life, liberty, and security of the person indicates that there are significant obstacles to enforcing these rights where such enforcement would entail positive obligations on government. 

The courts have thus far been slow to recognize positive obligations as part of the right to life, liberty, and security of the person protected under section 7 of the Charter, though there is nothing inherent in the section 7 framework developed by courts to foreclose that possibility.  Under Canadian jurisprudence, in order to establish a violation of one’s section 7 rights a claimant must demonstrate two things: (i) an interference, in purpose or effect, with one of the three interests protected by section 7; and (ii) that the interference is not in accordance with the principles of fundamental justice.  The second stage of the section 7 analysis often amounts to a proportionality inquiry that weighs the importance of the state objective at issue against the severity of the violation of life, liberty, and/or security of the person.[17]  The Supreme Court has explained that the principles of fundamental justice include rules of procedural fairness (or natural justice) and substantive principles that are the “basic tenets of our legal system.”[18]  Section 7 has been applied in a variety of contexts, including the administration of human rights legislation,[19] state-imposed medical treatment,[20] state-initiated custody proceedings,[21] and state-prohibitions on the purchase of private insurance.[22]  The Supreme Court has consistently left open an interpretation of section 7 that includes positive obligations on government.

In the first two subsections that follow (1. G.(J.) and Gosselin: Disability Supports where Impecunious and 2. Wynberg and Flora: Health and Social Services) the paper discusses cases in which claimants have attempted to impose positive obligations on government to provide supports, both generally and in the context of disability-related supports.  This caselaw demonstrates the courts’ reluctance to impose positive obligations on government under section 7.  By contrast, in the third subsection that follows (3. Chaoulli and Adams: Successful Claims), the paper reviews novel contexts in which claimants have been successful in arguing that their section 7 rights were infringed.  This caselaw illustrates that it is not the novelty of the claim that determines its success or failure; instead, the result is largely dependent on whether the claim is a negative one (requiring only that the government abstain from curtailing rights) or a positive one (requiring the government to take positive action).

 

1.  G.(J.) and Gosselin: Disability Supports where Impecunious


In an early case concerning the scope of section 7, the Court stated that it would be “precipitous” to rule out the possibility that the section included such rights as “… rights to social security, equal pay for equal work, adequate food, clothing and shelter …”[23] In 1999, the Court went much further in the case of New Brunswick (Minister of Health and Community Services) v. G. (J.) [G. (J.)], holding that in certain circumstances section 7 imposes a positive obligation on the government to provide an impecunious, unsophisticated parent with state-funded counsel when the government seeks a judicial order suspending the parent’s custody of his or her child.[24]  The Court held that, in the circumstances of the case, the right to a fair hearing (a principle of fundamental justice) required that the mother be represented by counsel.  The Court reached this conclusion by considering the seriousness of the interests at stake in child custody proceedings, the complexity of those proceedings, and the fact that the mother in this case did not possess superior intelligence, education, communication skills, composure, or familiarity with the legal system.[25] 

Despite the theoretical possibility that section 7 may encompass positive rights and the hope offered by the Court’s decision in G.(J.), in subsequent cases the Supreme Court has habitually dismissed section 7 claims that would require positive state action, both generally and in the context of disability-related supports.  For example, in Gosselin v. Québec (Attorney General) [Gosselin], a welfare recipient challenged the adequacy of welfare benefits.[26]  The majority of the Supreme Court rejected the claim.  In the majority’s view, existing jurisprudence on section 7 indicated that it restricts the government’s ability to deprive individuals of their rights to life, liberty, and security of the person.  According to the majority, existing jurisprudence did not suggest that section 7 imposes positive obligations on government to ensure that each person enjoys life, liberty, and security of the person.[27]

The majority’s judgment in Gosselin implies that the Court’s decision in G.(J.) did not impose positive obligations on the government.  It suggests that the Court’s findings resulted from the state’s threat to G.(J.)’s security of the person by seeking to extend the custody order in place.  However, as noted by Arbour J. writing in dissent in Gosselin, 

One must resist the temptation to dilute the obvious significance of this decision by attempting to locate the threat to security of the person in G. (J.) in state action.  It is of course true that the proceedings at issue in G. (J.) were initiated by the government.  But Lamer C.J. pointed out that it was not the actions of the state in initiating the proceedings, per se, that gave rise to the potential s. 7 violation.  Rather, “[t]he potential s. 7 violation . . . would have been the result of the failure of the Government of New Brunswick to provide the appellant with state-funded counsel . . . after initiating proceedings under Part IV of the Family Services Act” (G. (J.), supra, at para. 91 (emphasis added)).  This focus on state omission rather than state action is consistent with Lamer C.J.’s characterization of the state’s obligation to provide counsel as a positive obligation.  It is in the very nature of such obligations that they can be violated by mere inaction, or failure to perform the actions that one is duty-bound to perform.[28] 

The majority suggests that what was lacking in Gosselin, which could sustain a claim to positive obligations arising from section 7 in the future, was a serious record of hardship.  However, Arbour J. had no difficulty concluding that the evidentiary record was sufficient to find a violation of Ms Gosselin’s section 7 rights.[29]  Arguably, the serious record of hardship which was before the Court suggests that, in the majority’s view, section 7 can never be used to impose positive obligations on government to guarantee a minimum standard of living.

 

2. Wynberg and Flora: Health and Social Services


            In subsequent cases, Canadian courts have followed the narrow approach to section 7 applied by the Supreme Court majority in Gosselin, including cases where claimants have sought to impose positive obligations on government to provide disability-related supports.  For example, in a series of cases where parents of autistic children sought to impose an obligation on the government to provide their children with autism-related services, the Ontario Court of Appeal and the Supreme Court declined to find violations of section 7.[30] 

In Wynberg v. Ontario [Wynberg], parents challenged Ontario’s failure to fund intensive behavioural intervention (“IBI”) programs for autistic children aged six and over.  Among other things, the parents claimed that the province’s special education regime adversely impacted their children’s liberty and security of the person by denying them access to the only program known to provide any hope to autistic children of being able to participate meaningfully in the community.[31]  Both the trial judge and the Ontario Court of Appeal rejected the section 7 claim advanced by the parents.  Central to this determination was the fact that Ontario’s Education Act does not create a mandatory requirement