Thursday Thinkpiece: Jackman & Porter on Positive Charter Rights

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Rights-Based Strategies to Address Homelessness and Poverty in Canada: the Constitutional Framework
Martha Jackman and Bruce Porter
Social Rights Advocacy Centre Working Paper, November 2012

Excerpt: pp.67-72

G. Positive and Negative Rights

The obligation to implement effective poverty or homelessness strategies has not yet been directly addressed by the Canadian courts. However, as described in previous parts of the paper, the text of section 36 of the Constitution Act, 1982, sections 7 and 15 of the Charter, the domestic and international human rights context within which these provisions must be interpreted, and the guarantees implicit in the notion of ‘reasonable limits’ under section 1 have the potential to provide a robust constitutional framework for a rights-based approach to poverty and homelessness in Canada. Unfortunately, as Louise Arbour has pointed out,283 there remains a prevailing domestic judicial bias against applying the Charter to require governments to act in response to human rights crises of this sort.

For example, although homeless people were successful in their Charter claim in Victoria (City) v Adams, this judicial bias is evident even in that case – the first to consider the relevance of international human rights law, including concerns and recommendations from the CESCR, to section 7 of the Charter.284 The BC Court of Appeal in Adams upheld the trial judge’s decision that the City of Victoria was violating homeless persons’ constitutional rights to life, liberty and security of the person by prohibiting them from erecting temporary overhead shelters in public parks.285 However the Court of Appeal was insistent on framing its decision as a negative ‘restraint’ on government, rather than as a positive obligation. Although the Court recognized that the trial court’s ruling would likely require some responsive action by the city to address the inadequate number of shelter beds in Victoria, it declared, “[t]hat kind of responsive action to a finding that a law violates s. 7 does not involve the court in adjudicating positive rights.”286

So long as courts and governments in Canada restrict their understanding of Charter and human rights obligations to “negative rights,” focusing exclusively on government action that violates rights, while ignoring the violations that result from inaction, they will not be applying the Charter as an effective human rights framework for addressing poverty and homelessness. As argued above, there is no constitutional basis for excluding positive action by governments to remedy Charter violations. In discussing the application of the Charter pursuant to section 32, the Supreme Court has emphasized that the distinction between government action and inaction is “very problematic.”287 In Vriend,288 quoting Dianne Pothier, the Supreme Court of Canada pointed out that section 32 is “worded broadly enough to cover positive obligations on a legislature such that the Charter will be engaged even if the legislature refuses to exercise its authority.”289 The Court went on to state that “[t]he application of the Charter is not restricted to situations where the government actively encroaches on rights.”290

The Supreme Court has also consistently rejected the idea that, because such decisions are inherently political in nature, the Charter should not apply to executive or legislative choices about what policies or legislation to enact. In R v Operation Dismantle, the Court established that “political” questions are not immunized from Charter review.291 In NAPE, where the Newfoundland Court of Appeal invoked the principle of the separation of powers as a barrier to judicial interference with “policy initiatives within the purview of the political branches of government,”292 Justice Binnie responded for the majority:

The “political branches” of government are the legislature and the executive. Everything that they do by way of legislation and executive action could properly be called “policy initiatives”. If the “political branches” are to be the “final arbitrator” of compliance with the Charter of their “policy initiatives”, it would seem the enactment of the Charter affords no real protection at all to the rights holders the Charter, according to its text, was intended to benefit. Charter rights and freedoms, on this reading, would offer rights without a remedy.293

Governmental authority to act, or not, in response to poverty and homelessness must be exercised consistently with the Charter, whether through positive measures to ensure equality or to protect life and security, or through ‘negative’ obligations of restraint, by refraining from actively interfering with such rights.

H. Conclusion

. . . . .

In the final analysis, however, the question of whether the courts are willing to exercise their constitutional mandate to address homelessness and poverty in Canada should not be determinative of the domestic constitutional rights framework being embraced by rights claimants, civil society organizations, and legislators. It is up to those who are demanding designing, and implementing strategic responses to these widely recognized human rights violations, to reclaim Charter rights.294 In doing so, they must challenge judicial resistance to positive rights and advance the legitimate claims of those who are homeless and living in poverty in light of the courts’ own jurisprudence, properly informed by evolving international human rights norms and longstanding Canadian values. A meaningful engagement of Charter rights with housing and anti-poverty strategies need not rely on the courts as the sole trustees of rights. Rights-based strategies should disseminate the adjudicative and remedial role previously restricted to courts more broadly, among other actors and decision-makers, in order to implement a participatory and empowering model of rights-based strategies consistent with the international norms described in Making the Connection.

Governments, of course, are the ultimate “duty-bearers” and courts the final arbiters of constitutional rights—but to become meaningful to homeless people and those living in poverty, Charter rights must inform the ongoing implementation of strategies, not merely the final review of their constitutionality and they must guide decision-making at every level, not merely in the courts.


283 Arbour, “Freedom from want,” supra note 81.
284 Adams, supra note 89.
285 Victoria (City) v Adams, 2009 BCCA 563, 313 DLR (4th) 29.
286 Ibid at paras 95-96.
287 Vriend, supra note 234 at para 53. Section 32 states that the Charter applies:
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
288 Ibid.
289 Dianne Pothier, “The Sounds of Silence: Charter Application when the Legislature Declines to Speak” (1996) 7 Const Forum Const 113 at 115, as cited in ibid at para 60,
290 Vriend, supra note 234 at para 60.
291 R v Operation Dismantle, [1985] 1 SCR 441 at para 64.
292 NAPE, supra note 250 at para 110.
293 Ibid at para 111.
294 See generally Bruce Porter, “Expectations of Equality“ (2006) 33 Sup Ct L Rev 23.

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