Precedent and Positive Charter Rights: Time for a Change?
Bibliographic record
Abstract
Whether the Supreme Court of Canada can and should recognize so-called ‘positive’ rights (viz, rights that require the performance of certain actions, possibly including the provision of goods, by the government) under the Charter of Rights and Freedoms remains contentious. Binding Supreme Court of Canada precedent states that there are no positive Charter rights – at least under sections 7, 12, and 15 of the Charter, under which demands for positive action are most controversially raised – but positive aspects of Charter rights could be recognized in the future. Yet the circumstances under which recognition would be appropriate remain opaque. This work suggests that the law of precedent is a helpful tool for examining when recognition could be justified from both the institutional perspective of the Court’s internal norms and from an all-things-considered perspective. It is, at minimum, a useful framing mechanism for exploring the most difficult issues concerning the recognition of positive rights. Interestingly, application of the test suggests a break between when the Supreme Court of Canada could recognize positive rights according to its own norms and when it would be all-things-considered justified to do so. Yet, more importantly, the considerations raised by the law of precedent test also highlight a burden for future all-things-considered justified recognition and demonstrate how the judiciary can avoid the potential negative consequences of positive rights recognition if they choose to recognize them (e.g., where recognition of some form cannot be avoided in a contested case).
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.014 | 0.035 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.013 | 0.042 |
| Scholarly communication | 0.016 | 0.018 |
| Open science | 0.004 | 0.004 |
| Research integrity | 0.010 | 0.018 |
| Insufficient payload (model declined to judge) | 0.009 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".