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
| Identifer | oai:union.ndltd.org:UBC/oai:circle.library.ubc.ca:2429/9667 |
| Date | 11 1900 |
| Creators | Daly, Gillian |
| Source Sets | University of British Columbia |
| Language | English |
| Detected Language | English |
| Type | Text, Thesis/Dissertation |
| Format | 7189068 bytes, application/pdf |
| Rights | For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use. |
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