Poor Rights: Using the Charter to Support Social Welfare Claims
19 Queens Law Journal 65-94
16 Pages Posted: 27 Aug 2013
Date Written: 1993
Because the judiciary perceives its role to be one of restraining the state from improperly interfering with the rights of individuals, judges have been more comfortable ordering governments not to act, than to act, and have defended negative, rather than positive, rights. The judiciary has had an opportunity to rethink its role, however, with the advent of the Canadian Charter of Rights and Freedoms, as its language can be understood to confer positive rights. The opportunity to protect positive rights is available because, in a state with widespread social programs, it is reasonable to argue that the Charter encompasses right that assure substantively equal and sufficient access to programs. A court that ordered the government to extend benefits in order to guarantee an individual equality or life, liberty and security rights could argue that the Charter required the order. As Professor Jackman shows, however, though decisions by the Supreme Court of Canada could be read to support social welfare rights, lower courts have usually denied such rights. She argues they have done so by wrongly interpreting the Charter, betraying along the way negative attitudes to disadvantaged claimants. Throughout, she offers an analysis more likely to secure the full benefit of the Charter's protection for all Canadians.
Keywords: Canada, Canadian, constitution, Charter of Rights, judiciary, equality, life, liberty, security of the person, positive rights, negative rights, social, welfare
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