Competence Concerns in Charter Adjudication: Countering the Anti-Poverty Incompetence Argument

“Competence Concerns in Charter Adjudication: Countering the Anti-Poverty Incompetence Argument” (2006) 51:3 McGill Law Journal 503-546.

47 Pages Posted: 20 Jul 2013

See all articles by David Wiseman

David Wiseman

University of Ottawa - Common Law Section

Date Written: 2006

Abstract

Canadian courts are reluctant to impose anti-poverty obligations upon governments under the Canadian Charter of Rights and Freedoms. Concerns over the limits of the institutional competence of courts have played an explicit role in this reluctance. The anti-poverty incompetence argument that has thus emerged is an instance of a broader concern over competence that is evident across the spectrum of types of Charter cases.

This article traces the emergence of a judicial framework for recognizing and responding to competence concerns in early Charter adjudication and describes the main lines of its evolution in subsequent cases. At the same time, and for the most part remaining within the confines of issues and arguments contained in accumulated Charter case law, the article critically evaluates the ongoing application of the framework in anti-poverty Charter cases. The central argument of the article is that the case law on competence concerns cannot justify placing relatively greater limits on the availability or rigour of Charter protection for anti-poverty claims than for other types of claims. Indeed, the argument is that the case law in fact offers encouragement to courts to pursue responses that manage the concerns or improve competence, thereby allowing equally fulsome protection for anti-poverty claims.

Keywords: Canadian courts, anti-poverty obligations, Canadian Charter of Rights and Freedoms, anti-poverty incompetence, Charter adjudication, competence, anti-poverty claims

Suggested Citation

Wiseman, David, Competence Concerns in Charter Adjudication: Countering the Anti-Poverty Incompetence Argument (2006). “Competence Concerns in Charter Adjudication: Countering the Anti-Poverty Incompetence Argument” (2006) 51:3 McGill Law Journal 503-546., Available at SSRN: https://ssrn.com/abstract=2295690

David Wiseman (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

HOME PAGE: http://www.commonlaw.uottawa.ca/index.php

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