I’m in the second year of the doctoral program at Osgoode Hall researching the dichotomy of positive and negative rights, socio-economic rights and sections 7 and 15 of the Canadian Charter. After completing my JD in 2020, I completed my LLM at Osgoode in 2021 where I examined provincial health insurance prohibitions on abortion funding through a rights dichotomy lens. My doctoral research seeks to map out the reasons that Canadian courts have given for declining to find a positive component to the right to life, liberty and security of the person. In addition, my research applies a comparative method, exploring how these concerns have been addressed in cases where Canadian and foreign courts have recognized positive dimensions to constitutional rights.
Research
Twenty years ago, the majority of the Supreme Court of Canada in Gosselin v Quebec, (Gosselin), found that “one day s. 7 may be interpreted to include positive obligations”, but such a novel step was unwarranted in that case, and has not been taken since. Human rights scholars have laid the groundwork for progress by critiquing the coherence of the distinction between positive and negative rights, and the weight placed on it. Scholars find overlap between the groupings, all rights have positive and negative dimensions, and all rights impose costs on the state. How then might Canadian courts be convinced to move beyond a purely negative conception of s. 7 rights? My research will try to pry open the door to more expansive and progressive interpretations of s. 7 of the Charter by discussing the potential for socio-economic protections within the section. In doing so, my research will consider the common reasons Canadian courts cite in their reluctance to find positive entitlement under s. 7 of the Charter, whether there are inherent flaws in the reasoning, and how courts in other countries has addressed similar concerns. I will begin by considering, how, when, and why claims to right to life or security of the person move from a question of whether someone’s negative rights have been infringed to a question of whether someone is entitled to positive rights examining how Canadian courts have approached each claim. In doing so, this research will seek to map out Canadian courts treatment of claims characterized as positive under s. 7, focusing predominantly on decisions rendered post Gosselin. My research will look to inform the analysis from two different areas of law. First, I will consider judgements from claims advanced under other sections of the Canadian Charter, including ss 2, 6 and 15, to consider whether the same courts have confronted similar positive rights dilemmas and concerns, but in a different context. Second, I will look to jurisprudence from jurisdictions outside of Canada considering how their courts have grappled with the same obstacles to recognizing positive rights as those Canadian courts have often raised. I plan to examine jurisprudence under broader guarantees to the right to life and security of the person, or equivalent provisions, similar to s.7 of the Canadian Charter.