Positive rights

By Emmett Macfarlane April - May 2013

It’s time our governments take ownership over how our rights are protected.

Positive rights

Progressive legal scholars have long argued for an interpretation of the Charter of Rights and Freedoms that would pave the way for imposing “positive obligations” on governments, specifically in the realm of social policies like health care and welfare. A “positive” reading of the Charter would require governments to take direct steps to provide or facilitate access to a given right. In specific contexts the Charter explicitly requires positive rights. For example, section 23 mandates the provision of minority language education (where numbers warrant): and certain legal rights, like the right to counsel, are obviously positive in nature.

Yet the courts have generally applied most Charter rights in the “negative” sense of preventing government action that prohibits or erects barriers to rights. In the context of section 7, which protects the life, liberty and security of the person, the Supreme Court famously struck down Criminal Code provisions on abortion in 1988 because they required a woman seeking an abortion to obtain approval from a designated committee at an approved hospital, a system which the Court found created unconstitutional delays and unequal levels of access.

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Despite that reasoning, the decision itself did not actually impose an obligation on the state to provide access to the service, and we see varying levels of access across the country (it is not possible to obtain an abortion in PEI at all, for example). Thus in practice, the delays and unequal levels of access persist in some parts of the country, but they result from a failure of government to provide a particular health service instead of legal barriers the government has imposed. From the perspective of those who view access to abortion as a Charter right, this distinction is essentially meaningless.

A similar logic regarding the 2011 Insite case, which involved the status of the supervised injection facility in Vancouver, is also problematic from a rights perspective. In that decision, the Court determined that the federal health minister’s refusal to extend an exemption under The Controlled Drugs and Substances Act violated the life, liberty and security of the person of Insite’s clients because closing the facility would increase the risk of drug overdose deaths and the spread of disease. But the decision was limited to this particular instance of ministerial discretion. Despite the Court’s strong statement that “Insite saves lives” the decision does not mean other provinces are required to open their own supervised injection facilities. We are thus left with a situation where drug users in Vancouver possess a right not afforded to those in Calgary or Toronto.

Emmett Macfarlane

Emmett Macfarlane
Assistant professor of political science, University of Waterloo

A majority of the Supreme Court rejected the idea that section 7 includes positive rights in Gosselin, a 2002 case that challenged a Quebec law that excluded those under 30 from receiving full social security benefits. Notably, the decision left the door cracked open to the possibility that some future case might permit a positive interpretation of life, liberty and security of the person. And in dissent, former justice Louise Arbour wrote a passionate argument in favour of reading socioeconomic rights into section 7.

Why is this important? The Court’s general reluctance to prescribe positive social benefits under the Charter stems from a healthy consideration of the appropriate limits of its role. Judges do not tend to make good policy-makers. They do not enjoy the resources or policy analysis provided by the bureaucratic elements of the state. When engaging in substantive policy issues, the Court is often criticized for its treatment of social scientific evidence. This is epitomized by the 2005 health care case in Chaoulli that assessed the constitutionality of Quebec’s prohibition on the purchase of private health insurance. Public policy scholars sharply condemned the majority decision, which rested on a flawed assessment of the comparative evidence and a cherry-picking of expert witness testimony in a manner that contradicted the findings of the trial judge.

Another concern pertains to institutional and democratic legitimacy. It is not the appropriate role of courts to write budgets and determine the allocation of scarce resources in a democratic society. Many view the imposition of positive constitutional obligations as an order of magnitude more offensive to the basic presumption that democracy ought to function through the decisions of elected representatives. Limiting itself to enforcing negative rights allows the Court to serve as an appropriate check to ensure the “passions of the majority” do not cross a constitutional line but also ensures the Court doesn’t cross too deeply into the realm of policy-making.

"It is not the appropriate role of courts to write budgets and determine the allocation of scarce resources in a democratic society." Emmett Macfarlane

But if these arguments about institutional competence and democratic legitimacy are compelling (and I believe they are) we are still left with the fundamental problem that, in practice at least, the line between negative and positive rights is fuzzy and thin. If you believe abortion or access to harm reduction facilities constitute Charter rights, what does it matter whether access to the right is blocked by government regulation or government inaction?

One solution to this quagmire might be for governments to take their obligations under the Charter more seriously. There is very little evidence that elected representatives consider the Charter implications of laws and polices under development. The recent revelation by whistle-blower and former senior government lawyer Edgar Schmidt that lawyers in the federal department of justice are instructed to raise red flags only if potential violations are unambiguous suggests scant political interest in doing so. Further, there generally appears to be no ongoing assessment of rights implications; executives and legislatures wait for major court decisions before giving any serious consideration to rights issues.

A shift in thinking may be warranted. More explicit attention to the Charter from the elected branches of government may help to mitigate the effects the existing judicial reluctance to impose positive rights is having within these policy areas. This does not mean that, every time someone claims access to a social benefit, governments must provide it. Instead, perhaps we ought to expect of our governments that they can justify inaction with explicit reference to the Charter. This may be a fruitful way for governments to engage not only the public but also the courts on these questions; indeed, it may function as part of the oft-referenced “dialogue” between courts and legislatures.

It is not surprising that politicians usually forgo such considerations, particularly given the controversial nature of some of the issues involved. But unless governments want to eventually wake up one day to see the Supreme Court has pushed the door open to a more expansive and positive reading of the Charter, they should seriously contemplate taking some ownership over how and when rights are protected.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. His new book, Governing from the Bench: The Supreme Court of Canada and the Judicial Role is published by UBC Press.
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