Re-Opening the Door: Litigating Positive Rights under the Canadian Charter of Rights and Freedoms
The David Asper Centre for Constitutional Rights (the Asper Centre) invites papers for a one-day symposium on litigating positive rights under the Charter. The symposium’s goal is to develop our understanding of positive rights in Canada, especially the challenges they currently face and the issues that might arise if positive rights were more robustly recognized under the Charter. The symposium, which will add to the decades-long conversation in Canada among scholars and courts about positive rights, will take place on Friday January 16, 2026, at the Faculty of Law, University of Toronto.
Two decades ago, in Gosselin, the Supreme Court of Canada left the door open to an expansive view of positive rights claims under the Charter. Since then, however, courts across the country have failed to recognize them. Underpinned by caution and concern, this pattern holds across diverse contexts, from the welfare context to the asylum context. Yet, climate change and growing economic inequality have renewed the push for positive rights. Take Mathur v Ontario, for example, the first Charter case concerning climate change to be decided after a full hearing, or the recent housing cases testing the precedent of Tanudjaja v Attorney General of Canada et al. In both contexts, litigants have sought relief for urgent and wide-ranging social issues that are difficult to conceptualize or remedy via a purely negative rights framework. These issues, and the litigation they have spawned, invite a closer inspection of positive rights under the Charter.
Against this backdrop, the Asper Centre is seeking submissions from both scholars and practitioners that address the following key questions:
- Is there truly a distinction between positive rights and negative rights under the Charter?
- What role should Canadian courts play with respect to positive rights, specifically vis-à-vis Parliament and provincial legislatures? How is this affected by the principles underpinning the separation of powers?
- What practical challenges does litigating positive rights pose in areas such as climate change and equality rights?
- What is the nature of the social science evidence required to argue or defend these cases?
- What does constitutional experience abroad teach us about the potential for positive rights under the Charter?
- What are the remedial options for positive rights claims?
- What lessons or impacts could be drawn from international law examples?
Located within the University of Toronto Faculty of Law, the Asper Centre is devoted to advocacy, research, and education on constitutional rights in Canada. Since its inception in 2008, the Asper Centre has hosted many conferences and symposia focused on various aspects of Charter and public interest litigation. In 2018, the Asper Centre convened a Public Interest Litigation Conference, focusing on legal strategies for successful public interest litigation and similarly in 2023 held a symposium focusing on equality rights litigation. The resulting papers were published by LexisNexis Canada in the books Public Interest Litigation in Canada and Litigating Equality, with corresponding volumes of the Supreme Court Law Review. This symposium seeks to build on the themes explored in earlier events to contribute to the practical scholarship on public interest litigation and to produce a follow-up publication to these earlier works.
Those interested in participating should send an Abstract (250 words maximum) of your intended paper to Tal Schreier (tal.schreier@utoronto.ca), the Asper Centre’s Program Coordinator. Papers may be at any stage of development, but participants will be expected to circulate a paper of at least 5000 words (final papers should be 5000-10,000 words). Alternatively, we welcome shorter case comments of approximately 2500 words that focus on a single court decision.