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List of issues to be taken up in connection with the consideration of the third periodic report of Canada :
6. Explain the position of the federal and provincial governments in Eldridge v. Attorney General of British Columbia with respect to the Charter's protection of the rights of people with disabilities, referring specially to General Comment No.5.
For an explanation of the provincial governments position in Eldridge v. A. G.B. C., 1 enclose a copy of the govemment's argument in the Supreme Court of Canada. The issues in the case were extraordinarily complex, and 1 do not believe that the nuanced approach of the Government of British Columbia can adequately be summarized in a paragraph or two.
The general position of
the Province was that the medical services provided to the plaintift were adequate.
We believed that the evidence demonstrated that while deaf people experienced
frustrations in respect of communication with medical professionals, they did
not receive inferior medical care. We also argued that the issue was appropriately
one to be decided under Provincial Human Rights legislation rather than under
the Charter. 1 would suggest that anyone wishing an "explanation" of the Province's
argument read the Province's written argument as well as the decisions at all
three levels of court.
7. Explain the position of the government of Manitoba in the Fernandes case (paragraph 63), of the government of British Columbia in the case of Brown v. British Columbia (paragraph 69) and of the government of Quebec in the Gosselin case, with particular referende to article 2 of the Covenant. Will these positions be changed in light of the decision of the Supreme Court in the Elridge case?
The nature of the Brown case is misrepresented in the Third Report of Canada. At paragraph 69 of the Report, it is stated that the Court held that 1he refusal of the provincial government to fund experimental drug therapy for AIDS patents did not breach s. 7, because the economic deprivation involved did not threaten the lives of AIDS patents; rather, it was their disease that did so ". The Brown case was not about a failure of the Province to fund an experimental therapy. The therapy was not experimental; the use of AZT to treat cases of 1ull-blown AIDW (as it was then referred to) was, by then, quite well-established. More importantly, the Province of British Columbia did provide funding for AZT treatment and the funding was fully consistent with its funding of all other medications except for those under exceptional programs (i.e., chemotherapy programs for cancer patients when provided through the Cancer Institute and anti-rejection drugs for transplant patents).
The section 7 issue in Brown was a very minor one. Section 7 sets limb on what governments can do when their actions may deprive a person of life, liberty or security of the person. It does not impose affirmative dudes on government to protect persons from all threats to their life, liberty or security of the person. The Province took the position in Brown that no governmental action threatened IM or security of the person, and the Court concurred with that position.
The major issues in Brown arose under s. 15 of the Charter (equality rights). The government argued that it was entitled to create extraordinary programs for particular medical situations (e.g., cancer, transplants) without being required to provide identical service levels in respect of all diseases. The Court accepted this proposition, and agreed that the Province had demonstrated that persons infected with HIV were not discriminated against by the placement of AZT under the general Pharmacare program.
The governments legal position in Brown has not been changed at all by Eldridge. The Supreme Court of Canada did not deal with any s. 7 Charterargument in EJdridge, and so the case does not touch the issue addressed at paragraph 69 of the Report In respect of s. 15, the Province's position is that Brown remains good law, and that the issue has not been affected by Eldridge.
In respect of the actual issue of AZT funding,
there have been many changes since the Brown case. A centre for excellence was
established at St. Paul's hospital in Vancouver, which resulted in the drug being
available to most AIDS patents without charge. As well, other drugs have been
marketed, resulting in more complex protocols for AIDS therapy- a situation similar
to the situation which prevailed at the time of the Brown case in respect of chemotherapy
for cancer patients.
8. Will the Government of Canada be acting on the recommendations of the Canadian Human Rights Commission that the ambit of human rights protections in Canada be expanded to include social and economic rights?
Following a series of public consultations respecting the scope of coverage of the BC Human Rights Code conducted in fall of 1997, the BC Human Rights Commission issued a report entitled, Human Rights for the Next Millennium. The report, containing twelve recommendations for amendments to the Code, was submitted to the Minister Responsible for Human Rights in January 1998. The government is considering the report.
In the report the Commission recommended that the government amend the Code to include protection from discrimination based on social condition. The term social condition has been judicially interpreted to include people in receipt of social assistance, as well as single women and single mothers. The report specifically noted that such an amendment would be in keeping with the United Nations' 1 ntemational Covenant on Economic, Social and Cultural Rights.
In the event the government decided not to proceed with
an amendment to add social condition as a prohibited ground of discrimination,
the Commission recommended that the prohibition of discrimination on the basis
of lawftil source of income be expanded from residential tenancy to all areas
of provincial jurisdiction covered by the Code.
9. Please provide the Committee with information from each Human Rights Commission in Canada about cases in which the Covenant has been used in interpreting or applying human rights legislation.
There are no human rights cases reported from
British Columbia which refer to the International Covenant on Economic, Social
and Cultural Rights. However, specific reference to other UN and international
human rights instruments have been made in a number of cases. The BC Human Rights
Commission has just completed a strategic plan to fbcus its future activities
on systemic discrimination. As part of this process, the need to further integrate
various United Nations and other international instruments into the work of the
Commission was identified. The Commission will, to the extent possible, refer
to the Covenant and other international instruments, in its promotion of equality
and its interpretation of the Code.