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The Legal Culture of Human Rights: An Obstacle for the Justiciability of Social Rights?


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The Legal Culture of Human Rights: An Obstacle for the Justiciability of Social Rights?

October 12th, from 11h30 to 1h30 PM, room A7-235.

Seminar with Christine Vézina

The literature on the justiciability of social rights in Canadian law documents the phenomena using two angles. It underscores the normative and institutional obstacles that appear due to the absence of formal provisions recognizing social rights in the Canadian Charter of Rights and Freedoms and, to a lesser extent, in the Quebec Charter of Human Rights and Freedoms, to the lack of recognition of the positive obligations borne by the state, to the constitutional reparations with an individual scope that do not embrace the systemic dimensions of the infringement of social rights, and to the principle of the separation of powers. It also highlights the justiciability vectors for social rights that are supported by certain judicial interpretations, by the large scope of the rights recognized in the Canadian and Quebec human rights charters and by the transformative constitutional reparations, such as the structural orders. In the end, we find that despite the lack of integration of social rights in the fundamental texts, courts possess normative and procedural instruments which hold the potential of leading to a greater effectiveness of social rights, but that these remain largely under-exploited. This situation leads to a fragmented case law that is refractory to the advancement of social rights. Certain factors explain the courts’ “shyness”, such as positions defended by government prosecutors in court proceedings, the deference of courts towards the legislative branch, the lack of legal recourses based on social rights and a certain tendency of higher courts to refuse to hear the appeals on these issues. As a result, access to justice is denied to persons most disadvantaged by society, and social rights are marginalized in Canadian law as is frequently denounced by the UN Committee on Economic, Social and Cultural Rights. My research seeks to question this marginalization of social rights within Canadian law. Rather than analyzing the structural or substantive aspects of the legal system, I analyze the legal culture of Canada as an obstacle to the justiciability of social rights. While some authors have written on the conservative ideology of the courts, I wish to demonstrate the impact of the legal culture on the closed-mindedness of Canadian law in regards to social rights. Although analyses about the impact of the legal culture on transformative constitutionalism (Klare, 1998) exist, no text documents the relation between this culture and the justiciability of social rights.