[English version of Défendons nos droits sociaux! Translation by Jamie McLennan]
The Charter revolution in Canada
Since then, federal and provincial laws have been subject to judicial review. Judges can invoke abstract principles to overturn public policy and protect individuals’ political and civil liberties. The Supreme Court has the final word on legislation passed in the House of Commons and the Québec National Assembly.
Of course, three exceptions prevail: 1) Article 1 of the Canadian Charter allows legislators to restrict certain rights, 2) the well known « notwithstanding clause » permits dialogue between executive and legislative powers, and 3) certain “collective rights” remain in place for minorities and aboriginal peoples.
Despite these accommodations, the 1982 Charter proclaimed liberalism as the political philosophy of the federal government. In essence, individual rights (Kant) now took precedence over the common good and the polis (Aristotle), the general will (Rousseau) and the “greatest good for the greatest number” (Bentham, Mills).
To this day, the consequences of these revolutionary documents preoccupy political scientists, philosophers and jurists. Debates continue to rage. For example:
- Was the 1982 Charter a step forward for Canadian unity, or did it in fact serve to alienate Québec (Laforest, McRoberts)?
- Has judicial review enriched our democracy, or are we now ruled by judges and dominated by lobby groups (Morton et Knopff)?
- Did the Charters help forge a common identity, or have they led to a rise in social fragmentation and rampant individualism? (Bourque et Duchaste, Beauchemin)?
- Have they advanced the conservative movement (Petter) or the progressive cause (Morton et Knopff)?
Ed Broadbent’s proposal
These are interesting questions, but should we go a step further and broaden the very definition of rights? This is what Ed Broadbent suggested on May 29. In an eloquent speech delivered during the Humanities and Social Science Federation of Canada Conference, the former NDP leader proposed moving beyond rigid concepts of liberalism to the recognition of social and economic rights.
So what exactly are social and economic rights? The Québec Charter offers a few interesting examples, but Broadbent refers directly to the International Covenant on Economic, Social and Cultural Rights ratified by Canada in 1978. This document recognizes a series of rights related to the family, to work, social security, education, health and culture. The list is impressive, and could serve as a template for a modern bill of social rights:
- The right of everyone to an adequate standard of living for himself and his family.
- The right to the widest possible protection of and assistance to the family.
- The right of mothers to special protection during a reasonable period before and after childbirth.
- The right of children and young persons to be protected from economic and social exploitation.
- The right of everyone to an adequate standard of living for his/herself and his/her family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.
- The right of everyone to the opportunity to gain his/her living by work which s/he freely chooses or accepts.
- The right to fair wages and equal remuneration for work of equal value.
- The right to safe and healthy working conditions.
- The right to equal opportunity for everyone to be promoted in his/her employment to an appropriate higher level, subject to no considerations other than those of seniority and competence.
- The right to rest, leisure and reasonable limitation of working hours and periodic holidays with pay.
- The right of everyone to form trade unions and join the trade union of his/her choice.
- The right of trade unions to establish national or international organizations.
- The right of trade unions to function freely, subject to no limitations other than those which are necessary in a democratic society.
- The right of everyone to be free from hunger.
- The right of everyone to social security, including social insurance.
- The right of everyone to an education.
- The right to an education that is directed to the full development of the human personality and the sense of its dignity.
- The right to an education that strengthens the respect for human rights and fundamental freedoms.
- The right to an education that enables all persons to participate effectively in a free society.
- The right of everyone to free primary and secondary education.
- The right to higher education made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education.
- The rights of parents to choose for their children schools, other than those established by the public authorities, which conform to minimum educational standards.
- The right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
- The right to the improvement of all aspects of environmental and industrial hygiene.
- The right to the prevention, treatment and control of epidemic, endemic, occupational and other diseases.
- The right to medical service and medical attention in the event of sickness.
- The right to take part in cultural life.
- The right to enjoy the benefits of scientific progress and its applications.
- The right of everyone to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author.
- The right to scientific and artistic freedom.
Taking on the challenge
According to Judge Louise Arbour, economic and social rights are already recognized in a number of international treaties and national constitutions. Furthermore, since Canada is a signatory of the Covenant, this document could carry the force of law here at home. If we take this commitment seriously, it could usher in a new rights revolution in our country.
The challenges are great, both politically and at the administrative level. What sort of constitutional framework or legal mechanism would compel our provincial and federal governments to honour these rights? Putting such an ambitious agenda into action is no easy task. Where to begin?
Broadbent has an interesting suggestion. Inspired by the role of the Canadian Auditor General and the Commissioner of Official Languages, he suggests creating the post of Commissioner of Economic and Social Rights. This senior official would operate at arms length from the government and report directly to Parliament. He or she would conduct inquiries into the status of social rights at the federal and provincial level, and would produce an annual report.
If the new Commissioner’s reports had anywhere near the same impact as Sheila Fraser’s bombshells, we could expect a truckload of media coverage, a raising of public awareness and an increase in the amount of attention paid to social issues in Parliament. With our social shortcomings revealed, governments would be morally obliged to respond to the most pressing needs.
The promotion of social rights is critical, and would benefit from integrating recent work by Amartya Sen, Martha Nussbaum of the HDCA and by the Equality Trust on the concept of capability. Poltical rights are all well and good. The addition of social rights is even better. Acknowledging the role of capability – better still.
More to come.
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