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much, about whether we can afford most purchases that occur to us to
make, our situation is somewhat akin to that of the fantastically rich. This
is in contrast to the many for whom the same purchase is off the table or at
least cannot be made without angst, careful budgeting, long-term saving,
burdensome credit, or a combination thereof. It is an interesting question
whether, if we were in a revolutionary age, we would be among the elites or
the masses.
The topics addressed here are not necessarily legal. Obviously not all
facets of absolute and relative economic insecurity are products of law or
even amenable to legal solutions. However, it would also be artificial to
detach consideration of these issues from a legal system that allows and
sometimes incents private accumulations of wealth, in accordance with
well-established Western political and economic philosophies. Certainly as
well, law has already played a part in curbing some excesses of unchecked
capitalism. For example, legislation contains concrete protections related to
employment and income, as expressions of parallel philosophical concern.
Against what standard, then, should we evaluate the legal or other measures
that Canadian governments have already taken to address economic
insecurity and inequality, and what further obligations may Canada have?
These questions are particularly difficult to grapple with given that the
wording and organization of the Canadian Charter of Rights and Freedoms
(and, correspondingly, much of the case law under it) are generally
regarded as being quite detached from the topic of economic rights or,
arguably, “positive” obligations. Of course, some differences in economic
outcomes may themselves simply be symptoms of other forms of inequality
(gender, race, disability) that do more readily fall within the accepted scope
of regularly adjudicated Charter rights.
Looking to the international realm for guidance, one set of economic
obligations on states is set out in the International Covenant on Economic,
Social and Cultural Rights (“ICESCR”),3 to which Canada acceded in 1976.
This is the covenant parallel to and, here, less often discussed than the
International Covenant on Civil and Political Rights (“ICCPR”), to which
Canada also became a party in that year. Predictably, the United States is a
party only to the latter. Indeed, for some of us who lived or were educated
in the broader “West” during the Cold War, there is a certain sheepishness
in raising the ICESCR at all; it feels somewhat ominous or old school,
depending on one’s point of view, as traditionally more associated with the
Soviet bloc and portions of the “Third World” not aligned with the United
States. It is important not to discount for that reason the possibility that the
ICESCR might nonetheless contain good ideas, even if not ones that were