Inclusive Interpretations: Social and Economic Rights and the Canadian Charter

Using Canada as a case study, this chapter suggests a reconceptualization of the role of the judiciary in relation to its mandate to interpret human rights and suggests that more attention needs to be directed toward holding courts accountable for the performance of it interpretive role. The author suggests that traditional paradigms of rights as originating outside of courts, by way of constitutional agreements or international human rights treaties, must be nuanced by better understanding of the experience of human rights in practice and of the role of rights claims and interpretation in the creation and perpetuation of human rights. Human rights practice reveals a process through which rights are perpetually re-constituted through the historical act of claiming and interpreting rights in context. Social rights claims that that are often understood solely as claims to goods or entitlements should equally be understood as claims to meanings that speak to and address the experience of new claimants and evolving socio-historical struggles. Through interpretive acts rights are perpetually recreated and given life and courts should provide full and fair hearings of democratic claims to more inclusive meanings. Judiciaries must be independent of the political branches of government but the courts’ role should not be construed as independent of historical struggles or of the evolving social construction of the meaning of rights; if it were, judicial interpretation of rights would be starved of nourishment and disconnected from the broader human rights project that gives legitimacy to individual interpretive acts.The chapter argues that the struggle for social rights in Canada is intricately linked to a struggle for fair hearings of claims to inclusive interpretations of broadly framed rights in the Canadian Charter of Rights and Freedoms. Attempts to demarcate the role of courts from that of legislatures on the basis of a negative rights paradigm have denied marginalized groups effective participation in the interpretation of the meaning of rights. The question is how Canadian courts can be held accountable to broader principles of democratic inclusion in the interpretation of rights.. Criticism by UN human rights committees of Canadian courts when they have failed to adopt inclusive interpretations provides an opportunity for enhanced judicial accountability for its interpretive role. Obligations of State parties to various international human rights treaties to progressively realize social rights must be understood as including important obligations of the judicial branch of government to engage constructively with the historical project of collaborative interpretation and with claims to more inclusive meanings of rights. International human rights bodies can thus play an important role in promoting more coherent principles of rights interpretation by engaging directly with domestic courts’ interpretive responsibilities. The role of international human rights bodies is not to dictate to domestic courts an authoritative interpretation but rather to ensure that courts do not become agents of social exclusion in the performance of their interpretive roles. The fact that there is no ultimate authority for interpretations of rights is not the problem. It is the solution.

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