Seite - 348 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE348 Given these inconsistencies in the case law, it is unclear to what extent pandemic-related inaction by health care decision makers within and outside the long-term care system, including the failure to provide sufficient COVID-19 testing or personal protective equip- ment, to adopt adequate containment measures, or to effectively regu- late care and working conditions, might be subject to Charter review.46 While Chaoulli and Auton have been heavily criticized, both decisions present significant hurdles for Charter claimants seeking positive rights to care under s. 7, or arguing s. 15 demands more than equal access to existing services.47 But even a narrow reading of the current jurispru- dence leaves little doubt that decisions to move patients from hospi- tals to long-term care, and not to transport long-term care residents to hospitals if they fell ill with COVID-19, raise serious Charter concerns. In terms of s. 7, these transfer decisions severely compromised long-term care residents’ physical and mental health, security, and autonomy. They increased not just the risk of death, but of dying in “horrific conditions.”48 These decisions did not, by any measure, com- ply with principles of fundamental justice. They were made without “effective participation” by those affected;49 they undermined their own public health objectives,50 and they caused grossly dispropor- tionate harm.51 As one adult son described his mother’s experience— after being hospitalized for a fall that left her incapable of returning home—of being moved to a long-term care facility where she died of COVID-19 three weeks later: “When I talked to her at the hospital, she 46. In Ontario  Nurses  Association  v  Eatonville/Henley  Place, 2020 ONSC 2467, nurses working in four Ontario long-term care facilities obtained an injunction, based in part on s. 7 of the Charter, forcing their employers to provide them with adequate personal protective equipment; Katherine Lippel, this volume, Chapter E-3; Vanessa Gruben & Louise Bélanger-Hardy, this volume, Chapter E-4. 47. See e.g. Marie-Claude Prémont, “L’affaire Chaoulli et le système de santé du Québec  : cherchez l’erreur, cherchez la raison” (2006) 51:1 McGill LJ 167; Martha Jackman, “‘The Last Line of Defence for [Which?] Citizens’: Accountability, Equality and the Right to Health in Chaoulli” (2006) 44:2 Osgoode Hall LJ 349; Colleen M Flood, Kent Roach & Lorne Sossin, eds, Access to Care, Access to Justice: The  Legal  Debate  Over  Private  Health  Insurance  in  Canada (Toronto: University of Toronto Press, 2005); Jackman, “Health Care and Equality”, supra note 41; Natasha Bakht, “Furthering an Economic/Social Right to Healthcare: The Failure of Auton v British Columbia” (2005) 4:2 JL and Equality 241; Jackman, supra note 4. 48. Brewster & Kapelos, supra note 27; Insite, supra note 45 at paras 91-93. 49. New  Brunswick  (Minister  of  Health  and  Community  Services)  v  G(J), [1999] 3 SCR 46 at paras 73, 119. 50. Insite, supra note 45 at paras 129-32. 51. Ibid at para 133.