Arbour urges courts to protect rights of poor
'Fundamental Canadian values'

Cristin Schmitz
CanWest News Service

Friday, March 04, 2005

OTTAWA - Canadian courts should be as vigorous and open-minded in vindicating the constitutional claims of low-income and disadvantaged people to shelter, food and the basic necessities of life as they have been in protecting civil liberties and the Charter rights of accused criminals, says United Nations High Commissioner for Human Rights Louise Arbour.

In a provocative keynote address to be delivered tonight in Quebec City at a symposium organized by the Dominion Institute, the former Supreme Court of Canada judge challenges Canadian litigants and Canadian courts, including her ex-colleagues at the Supreme Court, to be less "timid" in tackling head on "claims emerging from the right to be free from want."

Pointing to India where the Supreme Court in 2001 recognized the right to food as an integral element of the right to life as an example, Arbour said the Canadian Charter's guarantee of the right to life, liberty and security of the person offers ample scope for recognizing and protecting the social and economic rights of Canadians who are poor and disadvantaged.

"As is the case for civil and political rights, economic and social rights may --and in many circumstances must -- be backed by legal remedies. Courts the world over have been playing an increasingly vital role in enforcing socio-economic rights, within the bounds of their justiciability, bringing them from the realms of charity to the reach of justice," Ms. Arbour states in her speech. A copy was obtained by CanWest News Service.

"Ultimately the potential to give economic, social and cultural rights the status of constitutional entitlement represents an immense opportunity to affirm our fundamental Canadian values, giving them the force of law."

Ms. Arbour notes Canadian courts have "championed civil and political rights" and have taken an active role in enforcing the rights of accused when the state repressively uses its criminal law powers. "But considerably more reticence has been expressed in relation to social, economic and cultural rights and the protection of vulnerable segments of the population on grounds other than discrimination," she says.

Reached last night, Ms. Arbour said "my key message is that Canada should not be complacent about our commitment to human rights, I think it would be unfortunate if we had an unduly romantic vision of ourselves in the world, on the basis of the immense progress and leadership we have shown in civil and political rights, and in particular in non-discrimination and equality issues. But I think in economic and social rights, historically we have been dragging our feet quite embarrassingly actually."

She said she is not concerned that courts would be open to charges of judicial activism if they start telling governments how to spend money.

"I'd like to see the same kind of intellectual imagination that Canadian courts have shown in the last 20 years on civil and political rights. . . apply to economic and social rights," she said. "Everybody understands also that there are constraints on the appropriate remedies, but frankly I don't think the courts should be guided in their intellectual pursuits by criticisms that are not well founded. This is no different, in my view, than in the early days of the Charter with the courts asking themselves: "What does a fair trial mean?" and "What does a speedy trial mean?" And "How much is it going to cost?" is not the final answer to whether the courts should engage in exploring these kinds of ideas," she argued. "I think the Charter (of Rights and Freedoms) is full of promise for all that to be explored. The thing is that we have to launch the debate. I hope to contribute to launching it."