Rights under the International Covenant on Economic, Social and Cultural Rights : Should They Be Read Into Canada's Constitution

Patrick Macklem argues "yes." He bemoans the relative absence of reference to ICESCR in Charter decisions.

The Pithlord is not a strict originalist, by any means. But he thinks both right and left need to accept that the 1982 deal bracketed the struggle between social democracy and classical liberalism. That is the real meaning of the absence of property rights or specific social guarantees in the Constitution. The Pithlord knows that it isn't too hard to come up with interpretive arguments incorporating either the principles of Alabaman laissez faire or Swedish welfare statism in sections 2, 7 or 15. But the courts shouldn't entertain them, no matter how ingenious. Social democracy needs to fight it out with libertarianism in the political sphere.

In a nutshell, that's why the majority was right in Gosselin and the minority was on the money in Chaoulli.