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May 30, 2017

Bringing human rights back into balance

May 30, 2017

The case for social and economic rights in the Charter

With all the commotion around the Charter’s 35th birthday this year, you would be forgiven for thinking that human rights in Canada are a fait accompli. You would also be forgiven for, upon reading the words “human rights” just now, thinking first and foremost of the civil and political rights that our constitution explicitly sets out to define and protect. After all, most conversations around rights in Canada revolve around our civil and political liberties.

Indeed, we have built modern Canada upon a foundation of protections for these human rights, both at home and abroad. The repatriation of our constitution, as well as the expansion of that constitution to include the Charter, reinforces the importance of these rights for our democratic institutions and our national identity.

It was a Canadian, John Humphrey, who 70 years ago led the development of the Universal Declaration of Human Rights. This declaration affirmed a set of rights that are inherent in all people – a set that includes civil, political, economic and social rights. Civil and political rights are those we are most familiar with in Canada. They include the right to vote, have fair elections and exercise freedom of speech.

Economic and social rights are those that relate to employment, social security and access to housing, food and water, education, health and an adequate standard of living. They are the rights that allow us to live in dignity and participate fully in society. All of these are fundamental rights, inherent in the equal worth and dignity of all human beings. The declaration affirms that these rights are interrelated, interdependent and indivisible. That is, you can’t have any without the others. And yet, here in John Humphrey’s home country, we seem to focus on the first two to the exclusion of the economic and social rights.

We have good reasons to celebrate the Charter and the institutions and formal channels we have developed to protect our civil and political rights. Through the actions of governments, civil society and individuals, Canada has built fairly strong protections for civil and political rights. When rights are disregarded or violated, we have mechanisms that can help protect individuals and drive change. Certainly, our systems are not perfect but we can see progressive improvement in protecting civil rights, freedoms and equality before the law in both word and practice. What’s more, when Canadians hear about violations of these rights, we are offended. We all feel that a wrong has been done. These rights have become fundamental Canadian values.

But what about economic and social rights? They are interdependent with and indivisible from civil and political rights.

Franklin D. Roosevelt put it succinctly:

People who are hungry, people who are out of a job are the stuff of which dictatorships are made.

That was said in 1944. Canada signed the Universal Declaration of Human Rights in 1948. Then we signed the International Covenant on Economic, Social and Cultural Rights in 1976. And yet, in 1982, our Charter of Rights and Freedoms had little to say explicitly on the matter.

That’s not to say that we’ve done nothing. In fact, we have built robust societal responses to guarantee some aspects of economic and social rights, including universal public education and health care. Both of these systems are underpinned by the belief that access to education and health care must not depend on the ability to pay and must be equally and equitably available to all. They reject the false dichotomy of the “deserving” and “undeserving,” as well as the notion that “merit” could possibly be a legitimate criterion for access to these basic services.

Through these systems, we express the understanding that the fulfilment of these rights is good for our society as well as individuals. A healthy and educated public is better able to participate in civic and political life, better able to work and generate prosperity for our communities, and makes for a happier and more peaceful population.

What would Canada look like if we worked to realize the full spectrum of economic and social rights for everyone in Canada?

These systems are far from perfect or complete. But they are enshrined, both in legislation and in the Canadian psyche. When we hear that education for First Nations children on reserves is underfunded compared to children in schools funded by the provinces, we are offended. When we hear that people are not filling their prescriptions because we have no public mechanism to ensure that they can afford them, we see this as a system’s failure. We work to correct these inequities – slowly, perhaps, but we do work.

And yet, we know that children are going to school hungry every day. We see our neighbour working multiple part-time jobs with no job security, benefits or pensions. We hear our elected officials talk about closing the doors of social housing as if they have no other choice.

What would Canada look like if we worked to realize the full spectrum of economic and social rights for everyone in Canada?

Protecting these rights would mean putting systems in place to help everyone in Canada access affordable, healthy food. It would mean enacting laws and policies that ensure people who want to and are able to work would find decent jobs or the training to help them do so. It would mean that governments at all levels would invest in ensuring that everyone has housing that meets their needs.

And we would see this across demographic groups and across all provinces and territories.

To make this a reality, we need to build a culture that includes these economic and social rights. Building this culture will involve changing our rules, values and behaviours.

Rules come in many forms. We should start at the top: the Canadian Charter of Rights and Freedoms. The Charter represents the beginning – not the end – of the story. Some argue that the Charter, as written, does not explicitly name economic and social rights. But that doesn’t mean that they are excluded. “Living tree” constitutionalism is an approach to interpreting the Charter that considers its words in contemporary context. That is, the meanings of words change over time. Our interpretation of the words in the Charter should not remain static or we risk letting it become irrelevant to today’s society. That the authors did not articulate a particular point in 1982 does not prevent us from considering that point in 2017 or beyond.

Specifically, we can look to section 7 of the Charter:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In this section, “security of the person” should be interpreted to mean the right to be economically and socially secure and free from want. And it should be interpreted as meaning that the state has an obligation to ensure adequate living standards.

It’s unlikely that we will all agree on the best path to economic and social security. But we must start by agreeing that everyone has a right to live free from poverty. Then we must build a shared commitment to work to realize these rights. The obligation to fulfill rights falls on many actors – all levels of government, public institutions, businesses, non-profit organizations, communities and individuals. The recognition of these rights and our collective responsibility to realize them are at the heart of our social contract.

The rules and our values are also expressed in federal and provincial laws, which play a more tangible role in shaping our behaviour. In particular, broad framework legislation, such as the Canada Health Act 1984, defines national principles and ensures action to fulfill those principles. The law’s requirement that provinces and territories provide free and universal access to publicly-insured health care in order to receive federal funding expresses the principle of the right to health care and a mechanism to realize this right.

In the three decades of the Canada Health Act, this form of access to health care has become further embedded, not only in our systems of delivering health care, but also in our notion of what it means to be Canadian. This notion has evolved over time. Today, as we contemplate the long overdue inclusion of universal pharmacare into our health care systems and as we anticipate a future that includes universal dental care, our ideas about how to fulfil our obligation to enable good health for all will undoubtedly continue to evolve.

The Accessibility for Ontarians with Disabilities Act 2005 (AODA) not only makes clear that people with disabilities have a right to participate in society, it outlines the steps that all of us – from public institutions to private businesses – must take to facilitate that participation. It aims to change both our values and our behaviour. With this legislation and its accompanying target of a fully accessible Ontario by 2025, the province defines and accelerates the realization of rights for people with disabilities and lays out obligations of all players – both public and private.

These examples have been important drivers of cultural change, alongside other legislation and policy responses – such as minimum employment standards and poverty reduction strategies at all levels of government. These commitments must be buttressed by clear and realistic pathways to implementation and a framework for steadily advancing the realization of rights, as well as transparent accountability measures for policy commitments and for all of our institutions.

This accountability relies in no small part on the presence of good data to measure our performance against the goal of implementing rights in ways that people experience in their everyday lives. Canada has a considerable amount of work to do and investments to make in this area if we have any hope of tracking our progress.

Laws and policies are important mechanisms to deliver on the spirit of our principles but they are subject to the shifting winds of politics, changing leadership in government and fluctuating public sentiment. We need to enshrine through the Charter economic and social rights to ensure that they are there when we need them most: in tough economic times; when we have an unfriendly government in power; or any time they are unpopular or make us uncomfortable. Enshrining these rights will help ensure that what progress we’ve made cannot be easily undone by a single stroke of a pen held by one leader, no matter how democratically elected that leader might be.

Building a robust culture of rights also means that we must ensure that people have a meaningful voice in shaping the decisions that affect them. We must consider everyone’s ability to claim their economic and social rights, but also to participate in the processes that surround the realization and safeguarding of those rights. Rights inhere in people. Therefore, our thinking and our actions must also start with people. How individuals in Canada experience their rights, or the violation of their rights, is the ultimate test for how successful we have been.

Canada’s 150th birthday and the 35th anniversary of the Charter of Rights and Freedoms are milestones that Canadians mark this year. These are occasions for us to take stock of what we’ve accomplished as a nation and what more we have to do. It’s a good time to remind ourselves of the role of government: to provide order, governance and justice, as well as to ensure conditions that allow all of us to live in dignity. It is also a time for us to consider our role on the international stage and what we need to do to stand confidently in front of the global community as a leader in human rights. And now is the time to renew our social contract and our vision of what it means for the rights of everyone in Canada.

As Canada marks its 150th birthday this year, Canadians have a historic opportunity not only to celebrate a century and a half of accomplishments, but also to look forward to what we can achieve in the future. The Mowat Centre is releasing a series of short written pieces and video interviews in the weeks leading up to July 1st that will look ahead and present a variety of bold, potentially transformative policy ideas.

More Bold Ideas

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Elizabeth McIsaac

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