A Dissolving Dichotomy: Recognizing Positive Rights to Life, Liberty and Security of the Person Under Section 7 of the Charter
Human rights scholarship has continuously critiqued the traditional dichotomy between positive and negative rights, while simultaneously finding courts fail to recognize a positive right or engage socio-economic aspects of the right to life or security of the person. Given the overlap between the two groupings of rights, at what point in the jurisprudence does the claim to right to life or security of the person move from a negative rights infringement to a claim for a positive rights entitlement? This research examines human rights claims which engage the socioeconomic aspects of the right to life and security of the person advanced under section 7 of the Canadian Charter of Rights and Freedoms. Specifically, this research will consider how courts in Canada have determined what state action or inaction constitutes a deprivation of the rights under the Charter, and whether that determination perpetuates the historic distinction between positive and negative rights. This research will try to pry open the door to more expansive and progressive interpretations of section 7 of the Charter by discussing the potential for socioeconomic protections within the section. Of consideration will be, 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.