Positive Obligations Under Sections 15 and 7 of the Charter: A Comment on Gosselin V. Quebec

Abstract

The Supreme Court has not been hesitant to recognize positive rights and impose positive obligations under the Charter. Though the judges are aware of limits on their powers of review, the question of institutional boundaries has played a minor role in this jurisprudence. It is the merits of claims, rather than doubts about the legitimacy of review, that determine the outcome in these cases. Gosselin v. Quebec, which tested the constitutionality of Quebec's welfare policy, provides a recent example of the Court's tendency to subordinate institutional considerations to the question of entitlement. The purpose of this article is to explain why the Court's avoidance of the question of institutional boundaries is problematic.

Keywords: instutional boundaries, Gosselin v. Quebec, Candian Charter, positive rights, positive obligations

JEL Classification: K3, K33