Whether the Supreme Court of Canada can and should recognize so-called “positive” rights (viz., rights that require the performance of certain actions, possibly including the provision of goods, by the government) under the Canadian Charter of Rights and Freedoms remains contentious. Binding Supreme Court precedent states that there are no positive Charter rights—at least under sections 7, 12, and 15, under which demands for positive action are most controversially raised—but positive aspects of Charter rights could be recognized in the future. Yet the circumstances under which such recognition would be appropriate remain opaque. This work suggests that the law of precedent is a helpful tool for examining when recognition of positive rights could be justified from both the institutional perspective of the Court’s internal norms and from an all-things-considered perspective. It is, at minimum, a useful framing mechanism for exploring the most difficult issues concerning the recognition of positive rights. Interestingly, application of the test for going against precedent suggests a break between when the Court could recognize positive rights according to its own norms and when doing so would be justified, all things considered. Yet, more importantly, the considerations raised by the law of precedent test also highlight a burden on future all-things-considered recognition of positive rights and demonstrate how the judiciary could avoid the potential negative consequences of their recognition.
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Da Silva, Michael.
"Positive Charter Rights: When Can We Open the “Door?”."
Osgoode Hall Law Journal