CONFORMITY OR CONTRADICTION: INTERNATIONAL HEALTH RIGHTS IN CANADIAN COURTS

Abstract

This thesis examines court decisions affecting health interests under the Canadian Charter from the perspective of Article 12 of the International Covenant on Economic and Social Rights. Based on an empirical review of health related Charter challenges I conclude that the parties and the courts fail to adequately link international health rights to Charter interpretation. In labour law cases, the presumption of conformity is well entrenched and even ‘soft law’ accorded weight as a ‘relevant and persuasive’ source. However, where health interests are at stake, courts are resistant to applying international human rights law to Charter interpretation. The controversial dichotomy between negative and positive rights, in which only government interference with access to healthcare will be found to violate the Charter, dominates judicial decisions. Judicial deference continues to weaken oversight where government inaction leaves Canadians without access to the determinants of health they are guaranteed by international law.