Analysis of the approach of the Canadian courts to issues of the allocation of scarce healthcare resources offers an opportunity to consider the extent to which a differing institutional framework for public law and, perhaps more significantly, a distinct legal culture arising from that framework, may affect the capacity of the judicial process to develop a role as a deliberative space on questions of this type. Specifically, does the relative maturity of the Canadian Charter of Rights and Freedoms, as distinct from the Human Rights Act in the UK, enhance the potential of the courts to operate in a facilitative manner in respect of decision-making on the establishment of priorities for healthcare expenditure? Are the Canadian courts more confident in their institutional and constitutional competence than their English counterparts, and has this placed them in a better position to address problems of legitimacy to which the explicit rationing of healthcare resources gives rise?

Clearly, a response to these questions necessitates a close consideration of cases concerning the allocation of scarce healthcare resources which the Canadian courts have heard under the Charter, and this will form the greater part of the discussion below. However, the existence of the Charter does not preclude challenge to allocative decision-making in the healthcare context on the basis of principles of administrative law similar to those utilised by courts in England, and this form of legal challenge will be examined briefly first.