By Daniel Minden

Twenty-four years after Gosselin v. Québec, 2002 SCC 84, in which the Supreme Court of Canada left the door open for the recognition of freestanding, positive rights under the Canadian Charter of Rights and Freedoms, a series of experts hosted by the Asper Centre argued that litigators should renew the push for judicial enforcement of positive rights. 

On January 16, 2026, the David Asper Centre for Constitutional Rights hosted a symposium on litigating positive rights under the Charter at the Henry N.R. Jackman Faculty of Law. Co-chaired by the Cheryl Milne of the Asper Centre and Professor David Schneiderman of the Jackman Faculty of Law, the event considered how litigators can seize the potential of the Charter to argue that governments have positive constitutional obligations to their citizens – including in the areas of climate, housing, and health policy. This blog post focuses on selected portions of the Symposium’s plenary sessions, although the day’s agenda also included concurrent panels covering specific policy areas. 

Enforcing positive social rights in an anti-democratic era 

In a keynote address to launch the symposium, Professor Aoife Nolan of the University of Nottingham School of Law set the tone for the day. Nolan argued that democracy and social rights are co-dependent, and that litigators have a role to play in protecting both.  

Drawing on her experience as President of the Council of Europe’s European Committee of Social Rights, Nolan contended that positive rights litigation is an important means of reinforcing and sustaining democracy. Nolan noted that her quasi-judicial body has held that social rights permit the exercise of democratic rights: in European Roma Rights Centre (ERRC) v. Greece (Complaint No. 15/2003), the Committee found that the right to housing enabled the exercise of political rights. Nolan also argued that healthy democracies are best able to fulfil social rights, referring to Nobel laureate Amartya Sen’s thesis that functioning democracies with a free press do not experience substantial famines. 

The connection between social rights and democracy can help to explain the rise of anti-democratic forces, Nolan argued, referencing research which demonstrates a positive correlation between citizens’ concerns over access to goods and services, and support for far-right parties. In a call to action to attendees, Nolan insisted that litigation is a “key mechanism to flag gaps and bring about government action in areas such as housing, social protection, and employment,” which in turn, helps to maintain confidence in democracy.  

Room for optimism about positive rights in Canada? 

Following Nolan’s lecture, Professor Joel Bakan of the University of British Columbia’s Allard School of Law provided an historical overview of attempts to litigate positive Charter rights in Canada. Bakan recounted that Canadian courts have persistently rejected the notion that the Charter protects ‘freestanding’ positive rights, i.e., rights that “obligate state actors to provide some protection or benefit regardless of whether they have already provided a version of that protection or benefit.” In contrast, Bakan asserted that Canadian courts have been willing to recognize ‘contingent’ positive rights, i.e. rights which “obligate state actors to extend or expand some protection or benefit they have already provided a version of.” Bakan noted Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC) and Vriend v. Alberta, 1998 CanLII 816 (SCC), as examples of the Supreme Court recognizing contingent positive rights.  

In the landmark Gosselin case, the Supreme Court rejected an attempt to establish a freestanding positive right claimed by a welfare recipient appellant. The Court held that “nothing in the jurisprudence thus far suggests that s. 7 places a positive obligation on the state to ensure that each person enjoys life, liberty or security of the person. Rather, s. 7 has been interpreted as restricting the state’s ability to deprive people of these.” The Court found that “such a deprivation does not exist in the case at bar,” but also left the door open to recognizing positive obligations created by s. 7 in a future case.  

Dissenting Justice Louise Arbour took a broader view of the word ‘deprive.’ She found that “there is no sense in which the actual language of s. 7 limits its application to circumstances where there has been positive state interference,” since the “concept of deprivation is sufficiently broad to embrace withholdings that have the effect of erecting barriers in the way of the attainment of some object.” Bakan argued that in later contingent positive rights cases, the Court has seemingly embraced Arbour’s expansive understanding of ‘deprivation.’ In Bakan’s interpretation, the Supreme Court’s jurisprudence in which it has recognized contingent positive rights “depend upon and affirm” Arbour’s view that “a right can be deprived, breached, violated [or] limited by omission as much as by action.” In Bakan’s view, the court’s simultaneous acceptance of contingent positive rights and rejection of freestanding positive rights is inconsistent.  

Finally, Bakan addressed the concern that freestanding positive rights risk transforming judges into legislators. While acknowledging the need for caution, Bakan pointed to Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, as a proof of concept for navigating justiciability issues. In Doucet-Boudreau, the trial judge held that the province of Nova Scotia had to deploy its best efforts to uphold French-language education rights in the province. Rather than ordering a specific policy solution for the Nova Scotia government to pursue, the trial judge retained jurisdiction and monitored the government’s progress. The Supreme Court upheld the trial judge’s remedy as an appropriate exercise of judicial authority since the remedy left “detailed choices of means largely to the executive.” For Bakan, Doucet-Boudreau indicates how freestanding positive rights arising from Charter interpretation (as opposed to textually explicit positive rights such as ss. 14 and 23) might be judicially enforced in Canada if recognized by the Court. 

Bakan was followed by New York University JSD student Henry Federer and Osgoode Hall Law School Assistant Professor Anthony Sangiuliano, who presented their upcoming articles on positive rights. As an alternative to the dichotomy between positive and negative rights, Federer proposed a ‘two-tier’ methodology for characterizing Charter rights which initially characterizes a right as imposing a negative duty on the state or imposing a positive obligation on the state. Then, the methodology characterizes the right a second time to elucidate whether the right, once engaged, creates a secondary duty or obligation for the state.  

Following Federer’s presentation, Sangiuliano argued that positive constitutional rights are predicated on findings that state omissions have caused a violation of the relevant right. Sangiuliano posited that such findings are not empirical, but normative: such a finding is predicated on the notion that the state has a duty to prevent an outcome. For Sangiuliano, the ‘exposition’ of judicial decisions can help reveal the normative assumptions that underly judicial findings of state omissions.  

Addressing judicial anxieties about positive rights 

The separation of powers concerns referenced by Bakan were also addressed in an afternoon plenary session on judicial anxieties about positive rights. Associate Professor Benjamin Perryman of the University of New Brunswick argued that the separation of powers between the three branches of government is a misnomer and should be reconceived as the overlapping of powers. Perryman contended that the judiciary has a role in explaining how the overlap ought to function in practice and pointed towards foreign jurisprudence to indicate how Canadian courts might go about this task. 

Both Professor Kent Roach of Jackman Law and Professor Margot Young of the University of British Columbia’s Allard School of Law argued forcefully against a distinction between positive and negative rights at all. Roach noted that the Charter rights implicated in criminal law, though often framed in negative terms in the text of the Charter, in effect create positive obligations for the state. For instance, s. 12 implicitly requires the state to invest in correctional facilities so that they do not amount to venues for cruel and unusual punishment. For Roach, the positive versus negative rights dichotomy is a false distinction.  

Young made a similar argument, asserting that the Charter is at a moment of “existential crisis” because Canadian courts have “failed to give force to the full potential for the Charter as an instrument of social justice.” Young argued that the Supreme Court’s concept of substantive equality in interpreting s. 15(1) requires recognition of positive state obligations if it is to mean anything – and that a real commitment to social equality requires doing away with the distinction between positive and negative obligations.  

Young quoted from the American scholar S. F. Kreimer, who writes that “appropriate verbal manipulations can easily move most cases across the line between positive and negative obligations,” and from the University of Ottawa’s Martha Jackman, who has written that “the distinction between state action and inaction, and between positive and negative rights, has been entirely discredited under international human rights law.” Young asserted that the courts’ proclivity to distinguish between positive and negative rights is explained by a desire to protect the separation of powers. For Young, however, the separation of powers “requires judicial enforcement of the Charter to its full remedial purpose.” 

This afternoon plenary panel also included a presentation by Associate Professor Angela Cameron of the University of Ottawa and Toronto lawyer Lara Koerner-Yeo of JFK Law LLP, who examined the role of the presumption of conformity (between Canadian legislation and international treaty obligations) in ss. 7 and 15 Charter litigation. Research by Cameron and Koerner-Yeo indicates very little litigation in which the presumption of conformity has been raised in support of positive rights claims. However, Cameron and Koerner-Yeo noted that the presumption is increasingly invoked in s. 35 litigation.  

Daniel Minden is a Research and Communications Assistant with the Asper Centre. He is a 1L JD candidate at the University of Toronto Jackman Faculty of Law.