Judging poverty
Subtitle: the Charter, poverty and institutional competence.
Published: 2005
Language: eng
Number of pages: 530
Subjects: University of Toronto. -- Faculty of Law -- Dissertations.; Canada.; Public welfare -- Law and legislation -- Canada.; Poverty -- Canada.; Poor laws -- Canada.
Description: The Canadian judiciary has thus far been reluctant to interpret and apply the Canadian Charter of Rights and Freedoms as imposing anti-poverty obligations upon governments. This work takes issue with one of the main lines of argument offered by both judges and scholars in justifying this reluctance, namely, that courts lack the institutional competence to adjudicate anti-poverty Charter claims and that it is best to respond to that lack by limiting the availability or rigour of anti-poverty protection. Ultimately, the position taken in this work is that while anti-poverty Charter claims do pose some challenges to competence, those challenges are not sufficient to justify the preference for responses that give more limited Charter protection to anti-poverty claims than to other types of claims. Rather, the courts ought to pursue responses that manage the challenges or improve competence, and that thereby allow equally fulsome protection for antipoverty claims.The argument by which the ultimate position taken in this work is reached can be broken down into five main steps. The first step, taken in Chapter 1, situates the question of whether the Charter should provide anti-poverty protection in terms of the more general task of constitutional interpretation and establishes both that anti-poverty interpretations of the Charter's provisions are plausible and that the issue of institutional competence is a live issue in anti-poverty Charter cases. The second step, taken in Chapter 2, frames the issue of institutional competence in terms of how it has been addressed in academic literature in general and in Charter scholarship more particularly and identifies the forms of adjudication---which include the procedural elements of the adversarial process of adjudication, the expertise and passivity of judges, the remedial powers of courts and the structure of legal rights---as the factor that is most emphasized by scholars as limiting the competence of courts. The third step, taken in Chapter 3, surveys Charter adjudication in general and in anti-poverty Charter cases more particularly and finds similar concerns for the competence-limiting effects of the forms of adjudication but reveals a variety of incoherencies and inconsistencies in the treatment of those concerns, which tend to operate to the detriment of anti-poverty claims in general and s. 7 anti-poverty claims in particular. The fourth step, which spans Chapters 4 to 7, establishes that the foundational scholarship on competence---in particular, the scholarship of E. W. Vierdag, Joel Bakan, Lon Fuller and Donald Horowitz---cannot justify the judicial treatment of competence concerns in anti-poverty Charter cases and identifies and recommends more appropriate approaches. Finally, the fifth step, taken in Chapter 8, brings together and illustrates the recommended approaches by reference to a hypothetical case.
Notes: Thesis (S.J.D.)--University of Toronto, 2005.

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Source: Dissertation Abstracts International, Volume: 66-06, Section: A, page: 2365.