THE ADVOCATE 333
VOL. 79 PART 3 MAY 2021
• allows that the realization of economic and other rights may be
“progressive” rather than immediate. The Government of Canada
describes the concept of “progressive realization” as “meaning that
states are obligated to take appropriate measures to respect, protect
and fulfill their obligations under the ICESCR to the maximum
of their available resources”.5 Our government notes that this principle
“is meant to reflect a recognition by treaty parties that the
realization of many rights contained in the ICESCR (except those
addressing non-discrimination in the enjoyment of ICESCR rights
and rights to a minimum level of subsistence) is dependent on
resources and technological constraints and, due to this, ICESCR
rights may only be achieved over time”;6 and
• points to “adoption of legislative measures” as an appropriate
means of achieving full realization of the rights that the ICESCR
recognizes.
A concern that Canada’s legislative measures were inadequate was
expressed in the concluding observations of the Committee on Economic,
Social and Cultural Rights in 20167 on Canada’s last report to that body. The
committee recommended that Canada “take the legislative measures necessary
to give full effect to the Covenant rights in its legal order and ensure that
victims have access to effective remedies”.8 The committee also encouraged
“broadening the interpretation of the Canadian Charter of Rights and Freedoms,
notably sections 7, 12 and 15, to include economic social and cultural
rights, and thus ensure the justiciability of Covenant rights”.9
Further, the committee encouraged Canada to ratify the optional protocol
to the ICESCR.10 This optional protocol permits communications to the
committee “by or on behalf of individuals or groups of individuals, under
the jurisdiction of a State Party, claiming to be victims of a violation of any
of the economic, social and cultural rights set forth in the Covenant by that
State Party”.11 Canada has not to date ratified that optional protocol. Former
Supreme Court of Canada justice Louise Arbour, who was the United
Nations High Commissioner for Human Rights from 2004 to 2008, was a
proponent of this protocol.12 While still on the Supreme Court of Canada,
Justice Arbour, in dissent in Gosselin v. Québec (Attorney General), more generally
saw greater scope for the constitutional recognition and implementation
of economic rights than her colleagues.13
Beyond the concerns set out above, on economic issues the committee
made a number of specific observations and recommendations regarding
Canada that potentially have been somewhat superseded by changes in
government and large-scale spending associated with COVID-19.