Retreating to Justiciability: Drawing a Fine Line Between ‘Legal’ and ‘Moral’ Rights Questions

This paper examines Canadian case law to assess how judges determine whether morally charged questions are justiciable. The author applies Robert Cover’s philosophical concept of “responsibility mitigation mechanisms” to argue that judges may define justiciability narrowly to avoid complex moral questions. Using Charter litigation as a case study, the author explores whether the justiciability of moral or political questions can be subjective and how that subjectivity may have significant implications for the scope and limits of rights, the separation of powers and the rule of law in Canada