Positive rights demand state action rather than forbearance. This course confronts a set of difficulties that courts around the world have encountered in adjudicating positive rights claims. Are positive rights justiciable or are they merely political aspirations? How does one determine whether a constitution protects positive rights and what positive rights it protects? Does the Charter of Rights and Freedoms protect positive rights? More specifically, does the Charter recognize positive rights to housing, education, or environmental protection? When designing programs to fulfill positive rights, what legal standards bind legislatures? What doctrines should courts employ when adjudicating positive rights claims? What impact would the recognition of a set of rights that are both positive and constitutional have on the ongoing project of reconciliation and on Canadian society more broadly? These and other questions will be explored through the prism of comparative and theoretical materials.
Positive rights demand state action rather than forbearance. This course confronts a set of difficulties that courts around the world have encountered in adjudicating positive rights claims. Are positive rights justiciable or are they merely political aspirations? How does one determine whether a constitution protects positive rights and what positive rights it protects? Does the Charter of Rights and Freedoms protect positive rights? More specifically, does the Charter recognize positive rights to housing, education, or environmental protection? When designing programs to fulfill positive rights, what legal standards bind legislatures? What doctrines should courts employ when adjudicating positive rights claims? What impact would the recognition of a set of rights that are both positive and constitutional have on the ongoing project of reconciliation and on Canadian society more broadly? These and other questions will be explored through the prism of comparative and theoretical materials.
