This thesis is concerned with those 'social' rights that relate to the provision of the basic necessities of life; that is the right to an adequate standard of living (including food, clothing and shelter), the right to health and the right to education. The International Covenant on Economic, Social and Cultural rights (ICESCR) recognises obligations pertaining to the progressive realisation of these rights, whilst leaving the method of implementation within domestic discretion. The Canadian Charter of Rights and Freedoms only accords domestic constitutional protection to civil rights, leaving the implementation of these social rights within government discretion. This study will examine what has, in the Canadian experience, proven to be the practical consequences of adopting such a policy of 'selective constitutionalisation,' that puts social rights by definition outside the ambit of legal enforcement. Firstly, it will examine the court's approach to cases that have, in the absence of constitutionalised social rights, attempted to indirectly invoke social rights by encouraging a positive social interpretation of the right to equality and the right to life, liberty and security of the person, and will illustrate that the courts have failed to interpret these rights so as to indirectly protect social rights. Secondly, it will consider the relationship between legal, political and social discourse, illustrating that, in light of the non- constitutionalised status of social rights, the values underlying these rights have been marginalised in political and social discourse, facilitating reforms that have restructured and eroded the welfare state, reducing the realisation of social rights within Canada. Thirdly, it will consider the practicability of adopting the alternative approach of according equal constitutional protection and justiciable status to social rights, through an examination of the theoretical literature and the approach taken to social rights under the Final Constitution of the Republic of South Africa 1996. It will illustrate that the philosophical arguments that have been utilised to support the nonconstitutionalised status of social rights are no longer sustainable and that the constitutional experience of South Africa provides evidence that a practical alternative to the position adopted in Canada exists.

Proportionality review has become a common and expected legal test to determine the limits of rights under Canadian Charter adjudication. Section 2(a) of the Charter, which provides for freedom of religion, is one tool for people of cultural diversity to challenge the social order with their own nomoi. In this thesis I look at the freedom of religion cases that have been decided under section 1, thus also through proportionality analysis for how the proportionality test engages the democratic voice of persons of religious diversity. I argue that while the proportionality test is intended to recognize the democratic voice of diversity the reasoning structure of the test as usually utilized does not facilitate the processes of communication necessary to respectfully engage the voice of religious diversity and results in societal fragmentation. There are however, two recent cases that exemplify a very different and significantly new form of reasoning under the language of the proportionality test. I argue that these forms of proportionality analysis represent a form of deliberative or practical reason in which the nomoi of religious persons is recognized as of equal value as legislative nomoi and where political conflicts might be resolved not solely on the basis of power, but through the construction of shared histories that facilitate creating shared nomoi.

The idea that Canada was transformed into a "constitutional democracy" in 1982 is widely believed by the public, yet rarely examined in academic literature. This article identifies what it calls a "theory of Constitutional democracy" and then applies it to a test case, the Supreme Court of Canada's decisions on the equality claims of lesbians and gay men. It concludes that if the public expected such a transition, it has yet to be made.

Thesis (M.A.) - Carleton University, 2001. / Includes bibliographical references. Also available in electronic format on the Internet.

In 1986, the Supreme Court of Canada cogently summarized various judicial concerns relating to the expansion of public interest standing. In doing so, the Supreme Court invited judges to engage in a purposive and functional enquiry in exercising their discretion to grant access to public interest litigants. That enquiry should take account of the broad social, political and legal factors that provide the backdrop to the constitutional claim. However, both judges and commentators alike have failed to meet this challenge. Instead, they have applied the principles of standing in an increasingly categorical and abstract manner. To this end, they have employed the abstractly defined, directly affected individual without considering who he or she is in the particular circumstances, or what benefits he or she would bring to the litigation process. This is of particular concern when our context is inequality. The increasing abstraction of public interest standing jars discordantly with the purposive interpretation of section 15(1) of the Charter, so that while equality is determined in a contextual fashion, equal access is still conceived of in an abstract fashion. In abstracting the directly affected individual out of relations of radical inequality, there has been a presumption that we all, as individuals, have an equal opportunity (and equal resources) to raise our constitutional concerns in the courts. This presumption cannot be accepted. We need to inject some context into standing. To do so, we must appreciate that inequality is a product of the distribution of power in society, and that equality is to be furthered through multi-dimensionality and respect for diversity. Armed with these insights, we must revisit the judicial concerns that underpin the development of the public interest standing doctrine, and unpack their meaning in a purposive fashion. When we do so, we will begin to appreciate that the traditional resolution of these concerns actually serves to exclude disadvantaged persons from enforcing their Charter rights and obscures the diffuse causality characteristics of disadvantage. From the contextual perspective of social-inequality-as-power, the concerns underpinning public interest standing actually promote judicial access for the public interest organization that represents disadvantaged persons. / Law, Peter A. Allard School of / Graduate

Reputational interests are protected against defamatory and injurious statements by the common law o f defamation, which permits the targeted individual to recover damages for the injury to his reputation. At the same time, this body of common law sets limits to the constitutional right to free expression of the person who made the penalized communication. However, since s.32(l) of the Canadian Charter of Rights and Freedoms - according to the Supreme Court of Canada - restricts the Charter's application to the actions of legislative, executive and administrative branches of government, the Charter will be at best a bit player in defamation litigation governed by common law rule. This thesis deals with the tension between promoting free speech and protecting a person's reputation, i.e. with the questions whether the common law of defamation has achieved the correct balance between the protection of the individual's reputation and freedom of expression, or whether it needs to be modified in order to better accord with the Charter. A n important component of this thesis is its review of the decision of Hill v. Church of Scientology, where the Supreme Court of Canada addressed the question of whether defamation law needs to be reconsidered in light o f the Charter protection of free expression, and found the balance struck by the current law to be appropriate. A critical look at this decision, and more generally at the law of defamation itself, particularly its presumptions of falsity, malice and damages, will reveal the problems with the common law's resistance to making any major allowance for free expression. The author will argue that the Charter should apply to the common law in the same way as it applies to statutory law and that defamation law in particular would, in all probability, not survive the test under s.l of the Charter, concerning the justification of a limitation to a fundamental right. It will be concluded that the common law of defamation needs to be modified, i.e. that it must accord significantly more weight to freedom of expression in order to be consistent with the Charter. Insofar as the extent of such modification is concerned, the author will propose first of all to give the element of fault a more significant role in the common law of defamation. In addition, she will argue that the common law presumptions should be abolished. In sum, the author's reform proposal requires the plaintiff to prove not only that the words he complains of are defamatory, identify him and are published to a third person, but also that they are false, did indeed cause damage to his reputation and that the defendant acted with fault, i.e. intentionally or negligently, when publishing the defamatory falsehoods. / Law, Peter A. Allard School of / Graduate

The advent of the Charter of Rights and Freedoms signaled a new and vastly expanded role for the judiciary. By entrenching our civil liberties into the Canadian Constitution, the courts were given the express authority to override inconsistent statutes. Due to the inherent overlap between law and politics, election law is an area that is particularly sensitive to this recent enlargement of judicial power. Despite this, the courts have scrutinized many areas of election law and many federal and provincial statutes have been fundamentally altered. The purpose of this thesis is to determine whether the courts have developed a uniform theory of judicial review where election law is concerned via four case studies: electoral boundary redistribution, prisoner voting rights, the publication of opinion polls during campaigns and third party spending limits. Through an extensive review of the relevant case law and literature, I conclude that the courts have failed to develop a coherent and consistent theory judicial review regarding the application of the Charter to election law. My analysis reveals that the inconsistencies stem largely from three main sources: first is the failure of the courts to adopt a single vision of what constitutes a fair electoral system; second is that the case studies are dealing with two different sections of the Charter (ss. 2(b) and 3); and third is the Oakes test which has expanded judicial discretion along with the potential for disparity. If consistency is ever going to be achieved, the courts need to adopt a single vision of democracy in Canada. Until then, we are left to guess when our political rights may be justifiably restricted under the Charter. / Arts, Faculty of / Political Science, Department of / Graduate

This thesis is concerned with those 'social' rights that relate to the provision of the basic necessities of life; that is the right to an adequate standard of living (including food, clothing and shelter), the right to health and the right to education. The International Covenant on Economic, Social and Cultural rights (ICESCR) recognises obligations pertaining to the progressive realisation of these rights, whilst leaving the method of implementation within domestic discretion. The Canadian Charter of Rights and Freedoms only accords domestic constitutional protection to civil rights, leaving the implementation of these social rights within government discretion. This study will examine what has, in the Canadian experience, proven to be the practical consequences of adopting such a policy of 'selective constitutionalisation,' that puts social rights by definition outside the ambit of legal enforcement. Firstly, it will examine the court's approach to cases that have, in the absence of constitutionalised social rights, attempted to indirectly invoke social rights by encouraging a positive social interpretation of the right to equality and the right to life, liberty and security of the person, and will illustrate that the courts have failed to interpret these rights so as to indirectly protect social rights. Secondly, it will consider the relationship between legal, political and social discourse, illustrating that, in light of the non- constitutionalised status of social rights, the values underlying these rights have been marginalised in political and social discourse, facilitating reforms that have restructured and eroded the welfare state, reducing the realisation of social rights within Canada. Thirdly, it will consider the practicability of adopting the alternative approach of according equal constitutional protection and justiciable status to social rights, through an examination of the theoretical literature and the approach taken to social rights under the Final Constitution of the Republic of South Africa 1996. It will illustrate that the philosophical arguments that have been utilised to support the nonconstitutionalised status of social rights are no longer sustainable and that the constitutional experience of South Africa provides evidence that a practical alternative to the position adopted in Canada exists. / Law, Peter A. Allard School of / Graduate

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