Karl Guebert

In the context of increased expectations of healthcare services and fiscal pressures, rights claims constitute a force pushing for privatization and thus threaten Canada’s single-tier public system. This article introduces the concept of a ‘post-social right’ to understand the current legal effort to enforce a right to healthcare derivative of section 7 of the Canadian Charter of Rights and Freedoms. Commonly considered as a ‘negative’ right, I suggest that the right also has positive capacity. Rather than simply protecting against unjust state intervention, section 7 claims valorize a particular mode of sustaining life, liberty and security of the person according to neo-liberal principles. A right to markets in healthcare aligns health law with the logic of prudentialism as a technology of governance. As the enforceability of the right expands and strengthens, health law as governance operates to normalize market solutions to health matters. It follows that a form of two-tier citi...