View cases - Stewart McKelvey

ights/positive rights distinction. What it shows is that all legally enforced rights arenecessarily positive rights.. . . That is to say, personal liberty cannot be secured merely by limiting governmentinterference with freedom of action and association. No right is simply a right to beleft alone by public officials.This brings to mind Cory and Iacobucci JJ.’s response in Vriend v. Alberta, [1998] 1 S.C.R. 493,at para. 56, to an argument that was analogous to the positive-negative rights dichotomy:2011 SCC 20 (CanLII)It is said, however, that this case is different because the challenge centres on thelegislature’s failure to extend the protection of a law to a particular group of people.This position assumes that it is only a positive act rather than an omission which maybe scrutinized under the Charter. In my view, for the reasons that will follow, thereis no legal basis for drawing such a distinction.[317] Distinguishing between the freedom to exercise a right without state interference andthe right to exercise a freedom unhampered by state action or inaction diverts the discussionfrom the substance of the actual protection afforded by the Charter. In our society, governmentactivity is pervasive and unavoidable: See S. Bandes, “The Negative Constitution: A Critique”(1989-1990), 88 Mich. L. Rev. 2271, at p. 2285, and Greater Vancouver TransportationAuthority v. Canadian Federation of Students – British Columbia Component, 2009 SCC 31,[2009] 2 S.C.R. 295, at para. 34.[318] Dunmore was concerned with economic inequality. It was based on the notion thatthe Charter does not ordinarily oblige the government to take action to facilitate the exercise of afundamental freedom. Recognition was given to the dichotomy between positive and negativerights. To get around the general rule, a somewhat convoluted framework was established for