Methods of Protection of Economic and Social Rights in Canada

Canada is one of the wealthiest countries in the world and consistently ranks highly in comparative quality of life measures. Canada is well known for its abiding commitment that the state has a fundamental role to play in supporting the social and economic well-being of its citizens. Canada pioneered, and still maintains, a universally accessible, publicly provided, health care system. Social housing, social assistance programs and publicly-funded education are provided across the country. There are minimum wage guarantees and workplace health and safety standards. The labour relations system is premised upon and protects the existence of trade unions. Yet there are significant and stubborn social and economic inequalities and deprivations in Canada. The country's gross domestic product more than doubled in the last two decades of the twentieth century, but the poverty rate barely improved. It is estimated that a sixth of the population still lives in poverty. From 1980 to 1999, the poverty rate among children increased by almost 3%. Throughout the period, women and aboriginal peoples continued to suffer a much higher incidence of poverty than their male and non-aboriginal counterparts. And, perhaps most tellingly, the poverty gap, that is, the amount of additional income that would be required to bring all Canadians above the poverty line in any given year, increased by $5 billion from 1980 to 1999.The persistence of significant poverty in Canada, together with the disproportionate ill-health and other disadvantages with which it is associated, raises the possibility that many Canadians are suffering violations of their social and economic rights. Indeed, over the past decade, Canadian non-governmental organizations have regularly asserted that Canadian governments have failed to comply with their obligations under the International Covenant on Economic Social and Cultural Rights (ICESCR). Moreover, the United Nations Committee on Economic, Social and Cultural Rights, which monitors compliance with the ICESCR, has agreed. In turn, the question arises as to what domestic legal mechanisms are available for protecting the social and economic rights of Canadians and what barriers exist to their effective use and functioning. That is the question addressed in this contribution. More specifically, this chapter surveys the domestic legal mechanisms available for protecting a selection of the rights guaranteed by the ICESCR, namely, labour rights (Articles 6-8) and the rights to adequate housing (guaranteed by Article 11), health (Article 12), social security (Article 9) and education (Article 13). The survey is spread over four parts. In Part [1] I first briefly describe the Canadian constitutional system, including the division of legislative power between the national and regional governments and the relationship between domestic legal system and international law. I then identify the three types of mechanisms of legal protection of these rights. Those mechanisms are: first, the Canadian Charter of Rights and Freedoms, which is a constitutional rights mechanism; second, anti-discrimination and human rights legislation; and, third, human rights protections provided in legislation addressed to specific areas of social activity or provided by the quasi-judicial institutions supervising such legislation. In Parts [II] to [IV] I then discuss, in reverse order, each type of mechanism in more detail. I consider to what extent each mechanism requires or allows for the protection of the selected rights and to what extent such protection has been granted or obtained. I also consider why each mechanism has not proven more effective.

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