Another Rights Revolution? The Charter and the Reform of Social Regulation in Canada

Another Rights Revolution? The Charter and the Reform of Social Regulation in Canada

Description

This chapter considers the impact of the Canadian Charter of Rights and Freedoms on social policy in Canada. The aim is neither to present a comprehensive theory of the Charter as it applies to social rights nor to examine in depth the fundamental philosophical issues involved in conceiving social programs in terms of rights or entitlements. Instead, the paper focuses critical attention on the Charter jurisprudence to date in relation to social rights, and speculates on the kind of impact that Charter-based social rights claims may have on the policy process, at a time when many social policies and programs are being reviewed and/or revamped. It should be emphasized that the Charter does not contain any explicit guarantees of social protection, such as the right to a job, a given level of income, or to food, housing, medical care or education (it will be recalled that the “Social Charter” debate during the recent round of constitutional negotiations concerned whether such rights should be formally added to the constitution). However, the broadly-worded Charter rights to life, liberty, and security of the person (s. 7) and to equality (s. 15) may encompass at least some social rights claims. If the lower courts have usually been reluctant to read into the Charter a discrete set of substantive social rights, the Supreme Court has unambiguously disapproved the view that social and economic legislation necessarily warrants judicial deference, and the Court has also indicated that, in certain cases, there may be valid constitutional claims to positive benefits from the state. Charter rights are not absolute. According to s. 1 of the Charter, these rights are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Thus, adjudication of a Charter claim involves two stages: first, the determination of whether there is a prima facie violation of a right, for which the burden of proof is on the complainant, and second, where such violation has been found, the consideration of whether it constitutes a “reasonable limit” under s. 1. Here, the burden of proof shifts to the state to provide a justification for the impugned measures. The criteria for justifying a measure as a “reasonable limit” were set out by the Supreme Court in the early Charter case of R. v. Oakes. They are: i) that the law have a “pressing and substantial purpose”; ii) that there is a rational connection or fit between this purpose and the legislative means adopted to achieve it; iii) that the means adopted is the least rights-restricting alternative that is available to achieve the purpose; iv) that there is a proportionality between the good attained by the measure and the extent to which rights have been restricted. The Supreme Court has sometimes been inconsistent in the degree of rigour with which it has applied these criteria. In some cases, where the courts have characterized the legislative measure in question as a balance of diverse social interests and particularly where the aim of the legislation is the protection of vulnerable groups (e.g., Sunday closing of commercial enterprises and restrictions on advertising aimed at children), a more relaxed approach to justification seems to have been adopted, with the government only being required to show the reasonableness of its policy choice as a balance of interests, including the interests of those whose rights have been infringed. However, in some—although certainly not all—recent cases, the Court has tended to reaffirm the rigorous approach of Oakes, even in the context of scrutinizing complex social and economic legislation. The provisions of s. 1 tend to give Charter litigation the character of a dialogue or conversation between courts and legislatures. Where there is an infringement of a Charter right, governments are invited to provide a principled policy justification for the infringement. Charter ruling are most likely to disrupt legislative outcomes where the government has been unable to make a compelling justification for its policy choices. Often this will be the case where policies and laws that violate rights have lost their justification because of changed social an economic conditions; where they are the product of interest group capture or of bureaucratic inertia and unresponsiveness; or where they reflect traditional values, assumptions, and prejudices that cannot withstand rational scrutiny.

Source Publication

Redefining Social Security

Source Editors/Authors

Patrick Grady, Robert Howse, Judith Maxwell

Publication Date

1995

Another Rights Revolution? The Charter and the Reform of Social Regulation in Canada

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