The adoption of the Canadian Charter of Rights and Freedoms 40 years ago held great promise for the advancement of human rights in Canada. However, one area in which little progress has occurred over the last 40 years is that of socio-economic rights. Having received no explicit mention in the provisions of the Charter, the implementation of socio-economic rights has remained dependant on a progressive interpretation of constitutionally enshrined civil and political rights, with sections 7 and 15 standing out as prime candidates for embracing at least some guarantees of a social and economic nature.
In an early Charter case back in 1989, Chief Justice Dickson left open the potential inclusion of social and economic rights, stating:
[T]he rubric of "economic rights" embraces a broad spectrum of interests, ranging from such rights, included in various international covenants, as rights to social security, equal pay for equal work, adequate food, clothing and shelter, to traditional property -- contract rights. To exclude all of these at this early moment in the history of Charter interpretation seems to us to be precipitous. [1]
However, 33 years later, the interpretation of the Charter has not evolved to include any of those rights.
One may argue that the Charter was simply not intended to guarantee socio-economic rights, but originalism has never played a serious role in Charter interpretation [2]. And therefore, the question remains: why has the living tree that is the Canadian Constitution not grown to embrace socio-economic rights?
There were certainly some hurdles along the way. Ideological ones, to start with: the idea that socio-economic rights were better suited for communist or socialist countries. This myth has long been debunked, not least by the Vienna Declaration and Programme of Action in 1993 [3], in which the international community affirmed that “[a]ll human rights are universal, indivisible and interdependent and interrelated.” The Vienna Declaration simultaneously discredited the conceptual hurdle that socio-economic rights were not, in fact, “real rights.”
And even the more persistent hurdles of a theoretical and methodological nature – which saw civil and political rights being framed as easy-to-handle negative rights, while social and economic rights were framed as impossible-to-handle positive rights – were eventually exposed as baseless. Both International Human Rights Law and domestic courts have confirmed that no such clear cut logic exists.
The Supreme Court of Canada has allowed a positive claim to legal aid on the basis of the right to security, [4] a positive claim to sign language interpretation for deaf persons on the basis of the right to equality [5] and it has accepted that positive claims can arise under freedom of expression. [6] Inversely, examples from international and foreign jurisdictions illustrate the negative dimension of economic and social rights: the right to housing was held to entail the negative right to be free from unjust eviction [7] just as the right to health was considered to include the right to be free from forced sterilisation. [8] As a result, rights from both categories entail positive as well as negative dimensions, both of which can be handled by courts with the appropriate methodology – proportionality review [9] or reasonableness review. [10]
Despite their absence in Charter jurisprudence, Canada is, of course, internationally bound to protect socio-economic rights. [11] While there is not yet any constitutional obligation to do so, the very essence of having rights implies that there is a complaint mechanism in place whenever these rights are breached. It therefore comes as no surprise that the United Nations Committee for Economic, Social and Cultural Rights regularly begins its observations about Canada by pointing out its concern over the fact that “economic, social and cultural rights remain generally non-justiciable in domestic courts.” [12]
As Martha Jackman has pointed out, providing judicial enforcement for civil and political rights but not for socio-economic rights, effectively results in discriminating against the poor. [13] The UN Committee, in 2016, voiced the same concern, pointing out that “the limited availability of legal remedies for victims in the event of a violation of Covenant rights, […] may disproportionately impact disadvantaged and marginalized groups and individuals, including homeless persons, indigenous peoples and persons with disabilities.” [14]
Having constitutional rights is a source of empowerment. It gives groups and individuals access to powerful remedies in case of a violation of those rights. By remaining silent on socio-economic rights, the Charter thus denies empowerment to some of the most vulnerable populations with regard to pressing human rights issues – the right to clean water for indigenous communities, the right to safe and affordable housing for persons living with disabilities, or the right to have access to quality health services in the public health care system.
The Charter, of course, did not cause social injustice and economic inequality, those existed long before its enactment. But so did sexism, racism and ableism, to name but a few forms of discrimination which the Charter has since prohibited. In fact, it is difficult to imagine the fight against all forms of discrimination without the constitutional weight of the right to equality as guaranteed in section 15 of the Charter. So how is the fight against poverty and other forms of social injustice supposed to do without constitutional reinforcement?
Interpreting Charter rights to include socio-economic rights requires reflection about and validation of claims concerning basic social needs. In that sense, the Charter not only bars us from claiming socio-economic rights, but its interpretation also denies us the opportunity to debate, to analyse and to argue about them. Jennifer Nedelsky and Craig Scott have highlighted the ways in which constitutional rights are sites of continuing dialogue and engagement. [15]
Many other jurisdictions have gone down the path of adapting constitutional provisions – whether provisions guaranteeing civil and political rights [16] or provisions in the form of general state principles [17] – to include at least some protections of socio-economic rights, which has led to ground-breaking decisions discussing fundamental issues of social justice. Canada, however, has not. As long as economic and social rights are non-justiciable under the Charter, important questions with regard to social justice will remain unaddressed and, 40 years after its adoption, the Charter’s promise to be a force of progress has fallen flat.
[1] Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, 1003.
[2] Peter W. Hogg, Constitutional Law of Canada, Toronto: Thomson Reuters, 2019, 15.9(f).
[3] World Conference on Human Rights, Vienna Declaration and Programme of Action, UN Doc. A/CONF. 157/23.
[4] New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46.
[5] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624.
[6] Baier v. Alberta, [2007] 2 S.C.R. 673, 2007 SCC.
[7] Jaftha v. Schoeman and Van Rooyen v. Stoltz (CCT 74/03) [2004] ZACC 25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC) (8 October 2004).
[8] United Nations Committee on the Elimination of Discrimination against Women, Communication No. 4/2004, UN Doc. CEDAW/C/36/D/4/2004.
[9] R. c. Oakes, [1986] 1 R.C.S. 103.
[10] Government of the Republic of South Africa and Others v Grootboom and Others (CCT11/00) [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169 (4 October 2000).
[11] Under the International Covenant for Economic, Social and Cultural Rights which entered into force in 1976.
[12] United Nations Committee on Economic, Social and Cultural Rights, Concluding observations on the sixth periodic report of Canada, UN Doc E/C.12/CAN/CO/6, para 5.
[13] Martha Jackman, “Constitutional Castaways: Poverty and the MacLachlin Court” in: Sandra Rodgers/Sheila McIntyre, The Supreme Court of Canada and Social Justice, LexisNexis Canada, 2010, pp. 297-328.
[14] United Nations Committee on Economic, Social and Cultural Rights, Concluding observations on the sixth periodic report of Canada, UN Doc E/C.12/CAN/CO/6, para 5.
[15] Jennifer Nedelsky/Craig Scott, “Constitutional Dialogue”, in: Joel Bakan/David Schneiderman, Social Justice and the Constitution, Oxford University Press, 1992, pp. 59-83, at 62.
[16] This is the case, for example, under the European Convention on Human Rights as interpreted by the European Court of Human Rights.
[17] This is the case in India and Germany, amongst others.
Mirja Trilsch is a professor at the Département des sciences juridiques at Université du Québec à Montréal (UQAM) where she teaches Constitutional Law and International Human Rights Law. Since 2011, she is also the Director of UQAM’s International Clinic for the Defence of Human Rights (CIDDHU in its French acronym). Her research focuses on the issue of social justice under both Constitutional and International Human Rights Law.