Government programs have increasingly been challenged under the Charter on the grounds that they are provided inappropriately to a limited number of beneficiaries and that the benefits provided are set at insufficient levels. Courts have thus been asked to determine how governments should allocate finite resources in a world of infinite need. In this paper, the authors explore the question of the place of financial considerations for the purposes of section 1 of the Charter. In Martin (2003), the government of Nova Scotia attempted to rely on financial considerations in order to justify the exclusion of chronic pain sufferers from the regular compensation scheme provided by the Workers’ Compensation Act. Relying on dicta from the Schachter (1992) and Judges’ Reference (1997) decisions, the Supreme Court dismissed this argument and held that budgetary considerations could not be put forward by governments as a free-standing pressing and substantial objective for the purposes of section 1 of the Charter. However, the Court also acknowledged that “in certain circumstances”, financial considerations may constitute a pressing and substantial objective. The Court found it unnecessary to decide this point in Martin, and the question remains unanswered. Using examples from tort and administrative law, as well as lower court Charter decisions, the authors argue that courts cannot ignore the realities imposed on governments by fiscal limitations. If courts take on a greater role in policy-making, they must give serious consideration not only to arguments based on financial considerations, but also to the financial implications of their decisions.
Charney, Robert E. and Guttman, Daniel.
"Is Money No Object: Can the Government Rely on Financial Considerations Under Charter Section 1."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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