Citation

Macfarlane E. J. Can. Stud. 2014; 48(3): 49-78.

Copyright

(Copyright © 2014, University of Toronto Press)

DOI

10.3138/jcs.48.3.49

PMID

unavailable

Abstract

An important debate implicating rights and Canadian social policy concerns whether the Charter of Rights and Freedoms should largely be limited to protecting negative rights, which prevent interference from government, or whether it should include positive rights, which require governments to provide entitlements to social services like health care, housing, or some minimum standard of welfare. After examining the Supreme Court of Canada's approach to social rights under the Charter, this essay critically assesses the arguments in favour of expanding constitutional protection for positive rights. Although the essay finds that much of the judicial caution regarding positive rights is appropriate, the court's reasoning in several controversial health policy cases is insufficiently attentive to the positive rights implications of its ostensibly negative rights approach. This essay thus sheds new light on the debate by demonstrating how cases on abortion, supervised drug injection facilities, and assisted suicide present a difficult dilemma from both a policy and rights perspective: Courts may rightly avoid creating new social and economic rights, but the rationale they advance in applying negative rights in these cases provides an equally compelling basis for a positive right to access. It is a conundrum that both courts and the elected branches of government need to do more to address. © Journal of Canadian Studies. All rights reserved.

Language: en