Page - 347 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

347Fault Lines: COVID-19, the Charter, and Long-term Care s. 7 protects “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the princi- ples of fundamental justice.”38 Section 15 guarantees “equal protection and equal benefit of the law without discrimination and, in particular, without discrimination on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”39 The Supreme Court of Canada has affirmed that the Charter applies not only to governments, but to hospitals and other private enti- ties when they are delivering publicly funded health care.40 The Court has been more ambivalent about the Charter as a source of positive obligations to ensure access to such care.41 In Eldridge  v  British  Columbia  (Attorney  General), the Court held that failure to provide interpretation services for the Deaf within the public system violated the Charter’s equality guarantees.42 In contrast, in Auton  (Guardian  ad  litem  of)  v  British  Columbia  (Attorney  General), the Court ruled that lack of funding for autism treatment did not violate s. 15, because a finding of discrimina- tion “would effectively amend the medicare scheme and extend ben- efits beyond what it envisions—core physician-provided benefits plus non-core benefits at the discretion of the province.”43 In Chaoulli v Québec (Attorney  General), striking down Quebec’s ban on private health insur- ance, Chief Justice McLachlin opined that, “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.”44 Six years later, in Canada  (Attorney  General)  v.  PHS  Community  Services  Society, the Court found that, by depriving the Insite supervised injection facility’s clients of “potentially lifesaving medical care … and health-protecting services,” the federal government had violated their rights to life and security of the person.45 38. Charter, supra note 3 at s 7. 39. Ibid, s 15. 40. [1997] 3 SCR 624, [Eldridge]. See Martha Jackman, “The Application of the Canadian Charter in the Health Care Context” (2001) 9 Health L Rev 22. 41. See Jackman, supra note 4; Martha Jackman, “Health Care and Equality: Is There a Cure?” (2007) 15 Health LJ 87. 42. Eldridge, supra note 40 at para 80. 43. 2004 SCC 78 at para 44. 44. 2005 SCC 35 at para 104. 45. 2011 SCC 44 [Insite] at paras 91-92. In the Chief Justice’s words, at para 93: “Where a law creates a risk to health by preventing access to health care, a depri- vation of the right to security of the person is made out… Where the law creates a risk not just to the health but also to the lives of the claimants, the deprivation is even clearer.”