Enforcing the Right to Reasonableness in Social Rights Litigation: The Canadian Experience
Making it Stick: Compliance with Social Rights Judgments in Comparative Perspective (Capetown: Pretoria University Law Press, Forthcoming)
45 Pages Posted: 21 Jul 2014
Date Written: 2013
Abstract
This chapter discusses the potential for effective remedies for systemic social rights violations under the Canadian Charter of Rights and Freedoms. The author outlines the challenges of social rights enforceability based on three themes: immediate as opposed to future-oriented remedies; discrete (engaging one provision and one respondent) as opposed to multifaceted (engaging multiple entitlements and different actors) remedies; and corrective (of a flaw or omission in an existing program or law) as opposed to transformative remedies requiring structural or substantive changes to entitlement systems.
A potentially unifying concept is the emerging jurisprudence of the Supreme Court of Canada affirming a standard of rights-compliant reasonableness. The Supreme Court of Canada has preferred to characterize and remedy violations of substantive rights by focusing on the quality of conferred decision-making rather than on legislative omissions. Where legislation does not require decision-makers to refuse to comply with positive social rights obligations, decision-makers should make decisions that uphold fundamental rights. The Supreme Court has developed a standard of reasonableness to assess whether discretionary decisions comply with international and constitutional rights that is consistent with the standard of reasonableness adopted by the United Nations in recent optional protocols covering ESC right. The right to reasonable decisions and policies, informed by international human rights values, potentially brings together individual entitlement claims and broader structural, transformative claims, mapping out a strategy that moves beyond the enforcement of particular judicial decisions to a strategy for social transformation based on human rights values.
Keywords: remedies, social rights, systemic, Charter, Canada, reasonableness, human rights, transformative, structural
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