February 12, 2003 Fraser Forum Recently, the Supreme Court of Canada decided its first claim under the Canadian Charter of Rights and Freedoms, to a right to wel- fare in the watershed case of Gosselin v. Quebec (Attorney General) (2002). Ms. Gosselin argued that a now-defunct Que- bec rule1 that reduced welfare payments in the late 1980s from $434 to $163 per month for able-bodied adult recipients under 30 unless they entered job train- ing, community work, or school, was un- constitutional because the regulation violated sections 7 and 15 of the Char- ter. Ultimately, in a close 5-4 decision, the majority on the court found that the differential welfare regulation was consti- tutional, in that it did not breach the equality provisions of section 15 of the Charter or deprive the claimant of her section 7 right to security of the person. Although this development is a victory for opponents of a constitutional right to a publicly-funded minimum income via welfare, a closer examination of the decision reveals cause for concern.
The crux of this case concerns section 7 analysis and whether “the right to life, liberty and [most notably] security of the person,” can impose on governments an obligation to provide a mini- mum standard of living. Chief Justice McLachlin, writing for the majority, found that there was “insufficient evidence” in this case to support adopting such a “novel” interpretation. However, despite the fact that only two judges found that section 7 imposes positive obligations on government, an almost unanimous court (8 out of 9) did not rule out the possibility that one day, section 7 may be interpreted to include positive obligations on government. This, coupled with the fact that only a slim majority found that the regulation in question did not discriminate based on age under section 15, increases the likelihood that the outcome of another case involving another provincial welfare scheme may be different.
What, for example, would the Supreme Court make of Ontario’s current social assistance program (Ontario Works), which, like the Quebec welfare regula-tion, contains provisions for mandatory participation in employment programs as a condition for the receipt of welfare? Persons on welfare in Ontario are expected to make reasonable efforts to accept and maintain employment and are required to participate in one or more employment assistance activities (i.e., job search, literacy assessment and training, community participation, etc.). Ontario Works imposes these participa- tion requirements irrespective of the age of the individual recipient, and failure to participate results in ineligibility for welfare, with no lower scale of benefits for persons who decline to participate.
In addition, British Columbia’s current welfare scheme (BC Employment and Assistance) contains a benefit time limit, a first of its kind in Canada. Each month that a welfare recipient receives assistance now counts towards a
24-month time limit. Employable recipients are limited to a cumulative 24 months of welfare out of every 60 months. Upon the expiration of the time limit, rates are reduced such that there is no eligibility for employable singles and employable couples (with both adults at the time limit). For families with children, gradual monthly reductions in financial assistance occur.
As the first such case to be considered by Canada’s Supreme Court, the door has clearly been left open to future challenges. The concern is that the decision in Gosselin will affect future judicial decision-making, thus jeopardizing welfare reform across Canada, especially where individuals of a range of ages are denied welfare for failing to participate in a welfare-related work program, as is the case in Ontario, or as the result of a benefit time limit, as in British Columbia.2
If the above is not enough cause for concern, the Gosselin ruling allows activists (many of them working for federally-funded lobby groups) to rely on the strong dissenting decision from Justices Arbour and L’Heureux Dube that section 7 ought to be interpreted broadly so as to include a positive economic right to a publicly-funded mini- mum income in future lower-court cases (Seeman, 2002).
This is especially disconcerting when one considers that lower court jurisprudence has routinely preferred a narrow interpretation of Charter rights, thus ruling against such positive economic rights under section 7. For instance, in Masse v. Ontario (Ministry of Community and Social Services), Justice O’Driscoll found that “s. 7 does not provide the applicants with any legal right to minimal social assistance. The legislature could repeal the social assistance statute…[because] s. 7 does not confer any affirmative right to govern- mental aid.” Similarly, before the Supreme Court of Canada heard Gosselin, the Quebec Court of Appeal, from which this case was earlier appealed, upheld a lower court view that social and economic rights are not justi- ciable under the Charter, and that courts are not empowered to review the adequacy of provincial social assistance provisions. The special-interest lobby is chomping at the bit in regards to the possibilities that this most recent Supreme Court judgment presents to support further claims of a constitution- ally-mandated right to welfare, housing, etc. (Centre for Equality Rights in Accommodation, 2002).
In Canada, Charter jurisprudence celebrated its twentieth birthday last year. In that time, in myriad ways, the Charter has transformed the Canadian political landscape. The favoured purposive3 approach to interpreting Charter rights at the Supreme Court is largely responsible for this development, as this approach has been used to defend the judicial creation of new rights (Knopff and Morton, 1992). As this approach continues to tighten its grip on the judiciary at the Supreme Court and in lower courts across Canada, it will pave the way for the constitutional recognition of a right to government largesse in a variety of social policy areas, including social assistance, accompanied by the striking down of effective provincial welfare reforms from leading welfare reform jurisdictions across Canada.