Social Rights in Canada

Abstract

The focus of this study is on implementation of rights enshrined in the International Covenant on Social, Economic and Cultural Rights that seek to protect interests relating to work, social security, and health. Domestic implementation of the ICESCR in Canada occurs on two planes. On the first, political plane, the legislative and executive branches of government exercise constitutional authority to establish and administer social policy programs that protect interests typically associated with international social rights. On the second, juridical plane, domestic implementation occurs through judicial interpretation. Despite their appellations, each plane contains elements of the other. In exercising legislative and administrative authority, political actors are responsible for interpreting and applying judicially formulated legal principles and rules. On the juridical plane, constitutional and legislative provisions require substantive normative content to acquire adjudicative significance in specific disputes. Text and precedent underdetermine legal outcomes, producing a politics of judicial interpretation surrounding the distribution of legislative authority, the scope of constitutional rights, and the reach of statutory protection. Judicial choices in each of these contexts frame the location and terms of democratic contestation over the appropriate relationship between market and state. These choices both shape and are shaped by developments on the political plane in ways that minimize the domestic significance of Canada's international legal obligations.