Chapter 13: Taking Competence Seriously

With the enactment of the Canadian Charter of Rights and Freedoms came the hope that Charter litigation might provide an additional avenue for prompting Canadian governments to address poverty and other circumstances of social and economic inequality that constitute violations of the social rights of Canadians. In the short history of the adjudication of social rights claims brought under the Charter, an underlying concern over whether courts possess the institutional resources to competently adjudicate such claims has emerged. This concern has been expressed throughout the stages of Charter adjudication and has often been relied upon to justify a full or partial limit upon the scope of judicial review. Thus, courts have often narrowed the scope of Charter rights and freedoms to exclude social rights obligations in the violations review stage, have deferred to governmental balancing of economic and social priorities in the section 1 review stage, and have refused to impose positive remedial obligations in the remedy review stage. Such decisions have serious consequences not only for the immediate social rights claimants (whose claims are often partially or fully rejected) but also for the more general allocation of decision-making power and responsibility in Canadian society. In limiting the scope of judicial review in social rights cases, Canadian judges are limiting the role of the judicial branch of government, and the governance tool of adjudication, in addressing poverty and social rights. At the same time, they are preserving the role of the other branches of government and of other governance tools. Ultimately, then, Charter adjudication of social rights claims involves not only issues of poverty, human rights, and justice but also issues of governance. The fact that Canadian judges are devoting attention to the issue of the institutional competence of courts in social rights Charter cases, and in Charter cases more generally, indicates a laudable judicial willingness to take the issue of the allocation of decision-making power and responsibility seriously. However, the judicial analysis of institutional competence issues is too superficial to justify the resultant allocations of decision-making power and responsibility. In other words, the issue of institutional competence is not being taken seriously enough. More particularly, Canadian judges are failing to adequately explore and apply the full range of their institutional competence and are responding to perceived incompetence without sufficient analysis of the limitations of alternative decision-making institutions or of countervailing considerations. As a result, Canadian judges are both underestimating their competence and overreacting to perceived incompetence. This tendency is particularly marked in social rights cases and has meant that concerns over competence have had a disproportionate, detrimental effect in this area.In this chapter, I seek both to facilitate a more serious analysis of competence issues in general and to prompt a reassessment of the treatment of social rights claims more specifically. I begin with an explanation of the competence concerns and illustrate their role in social rights cases with reference to the Supreme Court of Canada's decision in Gosselin v Quebec (Attorney General). I also identify the bases upon which social rights cases bear a disproportionate burden of such concerns. The bulk of the chapter is then devoted to identifying and discussing a range of questions and issues that Canadian judges ought to be considering if they are really serious about the issue of competence. I also briefly assess the extent to which Canadian judges have recognized and analyzed these questions and issues and discuss select examples of their shortcomings.

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