Charter Remedies for Socio-Economic Rights Violations: Sleeping Under a Box?

Abstract

“The right to a remedy has often been considered one of the most fundamental and essential rights for the effective protection of all other human rights.”

Introduction: Section 24(1) of the Canadian Charter of Rights and Freedoms guarantees that anyone whose rights have been infringed may “apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” Notwithstanding this promise of judicial enforcement of Charter rights, obtaining an “appropriate and just” remedy for socio-economic rights violations in Canada poses significant challenges. In particular, the historic distinction between positive and negative rights, long abandoned under international human rights law and increasingly rejected in other constitutional democracies, continues to be relied upon by Canadian tribunals and courts as a basis for refusing to remedy violations of the right to health, housing, social assistance and other socio-economic rights that are crucial to Charter guarantees of life, liberty, security of the person, and equality. Even in those infrequent cases where socio-economic rights violations have been found, judicial adherence to a positive/negative rights framework has also had an impact upon the Charter remedies that have been ordered by the courts.

In a 2008 report on the legal enforcement of economic, social and cultural rights, the International Commission of Jurists (ICJ) undertook a comprehensive review of socio-economic rights jurisprudence from Europe, Africa, Asia and the Americas, including cases from the United States, Germany, Israel, and the United Kingdom, among other jurisdictions. The ICJ report documents that, while the constitutions of some of the nations surveyed include explicit protection for socio-economic rights, courts and tribunals in many other countries rely on more general constitutional guarantees, such as the right to life and the right to non-discrimination, as a basis for enforcing socio-economic rights. Perhaps surprising to international observers, if not to human rights activists in Canada, the ICJ report underscores the degree to which Canadian courts and tribunals stand out in terms of their continuing conservatism in regards to the recognition and enforcement of socio-economic rights set out under the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Canada has been a party for over 30 years. Of the 200-plus trial, appellate and supreme court cases contained in the ICJ’s report, only one Canadian case can be found: the 1997 Supreme Court of Canada decision in Eldridge v. British Columbia (Attorney General).

In a paper I presented at the CIAJ’s annual conference in 1993, assessing the disappointing record of socio-economic rights jurisprudence after ten years under the Charter, I called upon the judges and tribunal members present to reject stereotypic views of poverty and to question conventional explanations of how state action or inaction impacts on the lives of the poor. Instead, I urged those in attendance to look to the voices and experiences of the low-income plaintiffs who appear before them to inform and ultimately to transform accepted meanings and traditional notions of rights. Only in this way, I argued, could the poor begin to enjoy the equal protection of Charter rights and the equal benefit of Charter remedies. Regrettably, little has changed in the intervening 15 years. For people living in poverty who, unlike affluent Canadians, lack alternate social, economic or political means of holding elected governments to account, continued reliance by Canadian courts and tribunals on the distinction between positive and negative rights as a basis for dismissing socio-economic rights claims represents a fundamental failure of constitutionalism and of the rule of law. As the United Nations Committee on Economic, Social and Cultural Rights observed in its General Comment No. 9 on domestic enforcement of the ICESCR:

While the respective competences of the various branches of government must be respected, it is appropriate to acknowledge that courts are generally already involved in a considerable range of matters which have important resource implications. The adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent. It would also drastically curtail the capacity of the courts to protect the rights of the most vulnerable and disadvantaged groups in society.

In this paper I will focus on the negative consequences judicial adherence to a positive/negative rights framework can have in those cases where courts and tribunals do intervene to address socio-economic rights claims, whether at the behest of low-income plaintiffs or of more advantaged Charter litigants. In the first part of the paper I will discuss two cases in which judicial adherence to a positive/negative rights framework has had adverse effects at a remedial level: the Supreme Court of Canada’s 2005 decision in Chaoulli v. Quebec (Attorney General) and the recent B.C. Supreme Court decision in Victoria (City) v. Adams. I will go on to propose an alternative approach to remedies in the socio-economic rights context. In particular, I will argue that judicial scrutiny of remedial claims in light of section 15 of the Charter is more likely than a traditional positive/negative rights framework to yield remedies that vindicate, rather than undermine the values and purposes of the Charter.

Keywords: Justice, legal remedies, law, Canadian, Canada, CIAJ, ICAJ, Canadian Institute for the Administration of Justice, Institut canadien d’administration de la justice