For those of us who see the Canadian Charter of Rights and Freedoms as a potential catalyst for progressive social change, the twentieth anniversary of its equality rights guarantees provides an important oppor- tunity to reflect on what we have accomplished over the past two decades, and what remains to be done. For my part I remain convinced, after more than 15 years of Charter activism, that the Charter provides an important and legitimate avenue for challenging growing inequities within Canadian society.
I began my scholarly career in the late 1980s by assert- ing that the Charter includes an absolute right to an ade- quate level of social assistance. I have since suggested that it guarantees access to health care, housing and other basic social and economic rights set out under international human rights treaties ratified by Canada. I have argued that the right to equal protection and benefit of the law under section 15 of the Charter prohibits discrimination based on poverty, and renders systemic inequalities in social pro- grams and fiscal policies unconstitutional. I have been directly involved in Charter litigation advancing positive rights claims at the trial, appellate and Supreme Court of Canada levels, most recently as co-counsel for the Charter Committee on Poverty Issues in its challenge to NAFTA’s chapter 11. And I have participated in continuing legal and judicial education initiatives on all of these issues.
From this perspective I have react- ed with bemusement, incredulity, and sometimes outrage, to claims made over the years by Charter critics of the right in relation to the Court Party, of which I would undoubtedly qualify as a card-carrying member. These have included Ted Morton and Rainer Knopff’s insistence that the ”œCourt Party’s project…is deeply and funda- mentally undemocratic, not just in the simple and obvious sense of being anti- majoritarian, but also in the more seri- ous sense of eroding the habits and temperament of representative democ- racy.” Peter Russell has described recourse to the Charter as a ”œflight from politics” and a turning away from ”œthe procedures of representative govern- ment…as a means of resolving funda- mental questions of political justice.” To advocate for judicial recognition of social rights, John Richards argues, is to ”œtrivialize a political foundation of civi- lized public life, namely that…the peo- ple’s representatives " and not judges " spend public monies.” Under the Charter, Ted Morton again warns, ”œthe clientele groups of Canada’s bloated welfare state will be able to retreat to the courts and effectively obstruct attempts to reform health, welfare, or labour policies” and, ”œunless or until this unaccountable, judicial law-mak- ing is reined in,” Canada’s economic competitiveness and Canadians’ stan- dard of living will continue to deterio- rate.
In the 20 years since the coming into force of the Charter’s equality guar- antees, elected legislatures have become increasingly insensitive to the needs and basic human rights of the most disad- vantaged members of Canadian society. Governments in all parts of the country have been elected and have thrived on poor- and welfare-bashing platforms. Poverty has been characterized by our political leaders not as a serious and sys- temic economic problem, but an indi- vidualized phenomenon blamed on the poor themselves, who are depicted as fraudulent, lazy, and responsible for their own misfortune.
In this political context Charter litigation has been taken up by low income people and their advocates not as a means of bypassing democratical- ly elected governments, or of under- mining parliamentary democracy, but rather as a mechanism for calling the legislative and executive branches to account for their failure to respect the basic rights and interests of a group that has been totally marginalized within our political system.
What has been the record of suc- cess of Charter litigation as a means of redress against legislative choices having a disproportionately adverse impact on the poor? There have indeed been notable successes. For example, in the 1993 Dartmouth/Halifax County Regional Housing Authority v. Sparks case, the Nova Scotia Court of Appeal found that denying public housing tenants securi- ty of tenure and other protections under provincial residential tenancies legislation violated section 15 of the Charter. The Court held that this exclu- sion, which permitted Irma Sparks and her two children to be evicted from their apartment after 10 years resi- dence, without notice or any explana- tion of the reasons for the eviction, was discriminatory on the basis of poverty, single-motherhood, race, and the fact of being a public housing tenant.
In the 1999 New Brunswick (Minister of Health and Community Services) v. G.(J.) case, the Supreme Court of Canada held that the failure to provide publicly fund- ed legal aid in child protection proceed- ings infringed a low income parent’s security of the person rights under sec- tion 7 of the Charter. Jeannine Godin had been threatened with loss of custody of her chil- dren based on evidence of her parental fitness con- tained in 15 affidavits pre- sented by three lawyers acting for the Crown, over the course of a three- day hearing, after she had been turned down by legal aid and had resorted to bake sales and other unsuccessful efforts to raise money to hire her own lawyer. Chief Justice Lamer concluded that: ”œWithout the benefit of counsel, the appellant would not have been able to participate effec- tively at the hearing…thereby threaten- ing to violate both the appellant’s and her children’s section 7 right to security of the person.”
In the 2001 case of Dunmore v. Ontario (Attorney General), the Supreme Court of Canada found that the exclu- sion of agricultural workers from the province’s labour relations regime was a violation of their section 2(d) right to freedom of association. Evidence showed that agricultural workers in Ontario had suffered repeated attacks on their efforts to unionize, com- pounding their historic vulnerability to social isolation and economic exploitation. As Justice l’Heureux- Dubé put it: ”œin the case of agricultur- al workers in Ontario, the freedom to associate becomes meaningless in the absence of a duty of the state to take positive steps to ensure that this right is not a hollow one.”
In the 2002 case of Falkiner v. Ontario (Ministry of Community and Social Services), the Ontario Court of Appeal held that the ”œspouse-in-the- house” rule under the province’s Family Benefits Act, which deprived sole-support mothers of income assis- tance as soon as they began to live with a man, violated section 15 of the Charter. The Court found that, in con- trast to the three-year waiting period provided under the provincial Family Law Act, by assuming a spousal rela- tionship immediately upon cohabita- tion, the family benefits legislation discriminated against recipients, pri- marily women, on the enumerated grounds of sex and marital status. The Court also found the spouse-in-the- house rule to be discriminatory based on receipt of social assistance, which it recognized as an analogous ground of discrimination in view of the econom- ic disadvantage and social stigma to which welfare recipients are subject.
While low-income Charter liti- gants have achieved some important victories, they have also suffered significant defeats. For exam- ple, in the 1996 Masse v. Ontario (Ministry of Community and Social Services) case, a challenge to the over 20 percent cut in provincial social assistance rates by the newly elected Conservative government was rejected by the courts. While the trial Court accepted evidence that the cuts would have severe effects for all welfare recip- ients, including increases in hunger and homelessness, it found that the Charter did not guarantee a minimal level of public welfare assistance. The Court also concluded that section 15 had not been violated because receipt of social assistance was not a prohibit- ed ground of discrimination, and because setting social assistance rates was a matter of social and economic policy which should not be subject to second-guessing by the courts.
While the appellants in Dunmore were successful in their freedom of association argument before the Supreme Court of Canada, the trial court rejected the equality claim raised in the case, and the majority of the Supreme Court did not disturb this finding. The trial judge accepted that agricultural workers were poorly paid, faced difficult working conditions, had low levels of skill and education, low status and limited employment mobility. However, he concluded that they were a ”œdisparate and heteroge- neous group,” whose economic disad- vantage was not sufficient to establish discrimination on an analogous ground within the meaning of section 15 of the Charter.
The claim that poverty is an analo- gous ground for discrimination was also rejected in the 1999 case of Polewsky v. Home Hardware Stores, where the Ontario Superior Court found that barriers created for poor litigants by small claims court tariff fees did not violate the Charter. In the 2001 Federated Anti-Poverty Groups of B.C. v. Vancouver (City) case, the BC Supreme Court dismissed a Charter challenge to a municipal panhandling bylaw on similar reasoning. As the trial judge put it: ”œClearly poverty is nothing more than a proverbial handmaiden to those who seek protection under the enu- merated grounds…Poverty is an eco- nomic disadvantage that is regrettably a social condition over which those who endure it have little control, but they are not without options that can result in such a change.”
The Ontario Court of Appeal also took the view, in the Falkiner case, that economic disadvantage per se was not a prohibited ground of discrimination under section 15.
Most significantly, in its December, 2002 ruling in Gosselin v. Quebec (Attorney General), the Supreme Court of Canada dismissed the claim that a provincial social assistance regu- lation reducing welfare rates for recipi- ents under the age of 30 by two-thirds, to some $170/month, offended sec- tions 7 or 15 of the Charter. The appel- lants submitted evidence that Louise Gosselin had experienced profound social isolation, hunger, cold, depres- sion, threats of violence, deplorable housing conditions and prolonged periods of homelessness while trying to live on the reduced benefit rate. Expert testimony adduced at trial showed that other young welfare recipients suf- fered similar physical and psy- chological insecurity and illness owing to the low level of provincial assistance.
In response to the argument that the inadequacy of the provincial welfare rates violated section 7 of the Charter, the Supreme Court held that while governments might be found to have a positive obligation to sustain life, liberty, or security of the person in special circumstances, this was not such a case. A majority of the Court likewise concluded that the differential welfare rates had not be proven to be dis- criminatory under section 15 of the Charter, since recipients had the option of participating in work and training programs in order to top up their benefits. The majority was unpersuaded by the fact that the youth unemployment rate in Quebec at the relevant time was over 24 percent; that only 30,000 work and training placements were made avail- able to 85,000 recipients; that those with low levels of education and literacy were ineligible to participate; and that a full 73 percent of welfare recipients under the age of 30 received only the $170 monthly rate. Instead Chief Justice McLachlin concluded that, because ”œthe thrust of the program was to improve the situation of [young welfare recipients], and to enhance their dignity and capacity for long-term self-reliance,” it promoted rather than undermined Charter equality principles.
The major difficulty facing low income litigants invoking the Charter in the social welfare context originates, I would argue, in a series of presumptions that are regularly applied by courts at all levels in welfare cases. These include the presumption that par- liamentary sovereignty remains unfet- tered in the social policy context; that the state is neutral in its dealings with the poor; that social welfare policies and programs are benign in their intent and their effects in relation to low income people; and that welfare recipients themselves are primarily to blame for any disadvantage that they suffer.
The presumption that social policy is beyond the legitimate purview of the courts is pervasive in Charter cases. In Dunmore, for example, the trial judge suggested that: ”œThere are many forms of injustice in our society, particularly those resulting from uneven distribu- tion of wealth, that cannot be remedied by the courts through interpretation of the Charter and that must be remedied through the legislative process.” The view that the courts should defer to the legislature in the social welfare context echoes similar conclusions of the trial court in the Gosselin case, where the trial judge argued that: ”œLa Charte ne fait pas obstacle à la souveraineté du parlement et au processus démocra- tique…S’il fallait y voir des obligations positives ce serait les tribunaux qui…viendraient ultimement détermin- er les choix de l’ordre politique, soit les pouvoirs législatif et exécutif. Or, pareil rôle n’est pas donné au pouvoir judiciaire par la Charte.”
The presumption that the state is neutral in its dealings with the poor is reflected in the Court’s reasoning and conclu- sions in the Polewsky case. While recognizing that fees, such as the $100 Ontario Small Claims Court fee, create signifi- cant barriers to access to justice for the poor, the Court held that the failure to provide a dis- cretion to waive fees could in no way be seen as discriminato- ry. In the judge’s view: ”œCourt fees, albeit at lower levels, have been in place for some 200 years. Given the historical con- text, the legislation does not appear to stereotype, exclude or devalue poor persons.” Rather, she concluded: ”œimposing a rea- sonable fee for use of a limited public resource such as court services is permissible and serves a useful purpose. The existence of the hearing fee…prevents the Small Claims Court system from becoming overburdened with frivolous claims.”
Similarly, in the 2001 case of R. v. Banks, involving an unsuccessful Charter challenge to the prosecution of squeegy kids in Toronto under the Ontario Safe Streets Act " legislation admittedly designed to allay public concerns by banning this effective form of begging by street youth, the trial judge character- ized the evidence presented by the defendants in the following terms: ”œMuch of the affidavit material filed by the defendants consists of complaints about the general thrust of current provincial social policy in Ontario; the affiants all have an obvious socio-eco- nomic and political perspective that is diametrically opposed to that of the gov- ernment of the day. It is, however, frankly difficult to discern how the legis- lation in question in itself can be said to have a prejudicial effect on their ”˜essen- tial human dignity’ by placing restric- tions on the place and manner of solicitation.”
The presumption that social welfare laws are benign in their intent and effects vis-à-vis the poor is most evident in the Gosselin case, where a majority of the Supreme Court repeatedly asserted, in the face of glaring evi- dence of the extreme degradation and misery caused by the gross inadequacy of the under-30 wel- fare rates, that the regime could not be held to be unconstitutional because it was intended to ”œhelp” young welfare recipients. As Chief Justice McLachlin characterized it: ”œThe age-based distinc- tion was made for an ameliorative, non- discriminatory purpose, and its social and economic thrust and impact were directed to enhancing the position of young people in society by placing them in a better position to find employment and to live fuller, more independent lives.”
The Court in Masse provided a simi- lar justification in dismissing the welfare-rate-cut challenge " that the poor were being helped, rather than discriminated against by provincial wel- fare laws. As one judge explained: ”œin the absence of the reduced social assis- tance payments, the applicants would face an even greater burden brought about by the cost of rent and food, non- governmental activity. In my view the impugned regulations do not increase but alleviate the applicants’ burden (albeit not to their satisfaction).”
A final presumption operating in the Charter welfare context is that those seeking to invoke the Charter to challenge inadequacies and inequities in social assistance policies and pro- grams, are themselves responsible for their impoverished circumstances, and so should not be heard to complain. In the 1992 case of Fernandes v. Director of Social Services (Winnipeg Central), for example, Eric Fernandes, who was mobile in a wheelchair but required the use of a ventilator, challenged munici- pal welfare officials’ refusal to cover the cost of part-time home care, so that he could remain in his apartment rather than moving into hospital. In rejecting his Charter arguments, the Manitoba Court of Appeal asserted: ”œThe particu- lar choices of a particular individual are not generally to be considered when those choices affect the public purse.”
A similar tone suffuses the opening paragraph of the majority judgment in the Gosselin case. As Chief Justice McLachlin described the appellant’s cir- cumstances: ”œLouise Gosselin was born in 1959. She has led a difficult life, com- plicated by a struggle with psychologi- cal problems and drug and alcohol addictions. From time to time she has tried to work…But work would wear her down or cause her stress, and she would quit. For most of her adult life, Ms. Gosselin has received social assistance.” This contrasts with Louise Gosselin’s own account of how, in attempting to survive on the $170/month welfare payment " ill-fed, ill-dressed and often homeless " she effectively became unemployable: ”œI was unable to present myself properly to an employer and to sell myself as a good worker, I was com- pletely lacking in terms of self-esteem and in terms of self-confidence, my meals weren’t balanced, my social life wasn’t either, I had absolutely nothing to keep myself together.”
As a subject of public policy inquiry, the disproportionate focus by legal academics and consti- tutional lawyers on Charter litigation and the role of the courts is perhaps understandable. Given the mixed record of success described above, however, it is hard to fathom in polit- ical scientists and other public policy experts. It is clear that the relation- ship between rights and democracy is far more nuanced than the Charter critics present.
Attempts by poor people to use the Charter to challenge laws and poli- cies that adversely affect them can hardly be said to have undermined Canadian democracy, even in its cur- rent, seriously malfunctioning form. As suggested at the outset of the paper, people living in poverty have resorted to Charter litigation because the exec- utive and legislative branches at the federal and provincial levels have been inaccessible to them, and willfully blind if not overtly hostile to their concerns. And, as described above, the courts have hardly greeted their claims with open arms.
The real question, then, is not whether the Charter and the Court Party are destroying democracy, but rather how the Charter’s equality rights values can inform and con- tribute to further strengthening the underlying values of our democratic system, particularly from the perspec- tive of the poor and other marginal- ized groups.
Rather than being decried as a source of democratic deficit, judicial review on Charter grounds should be recognized as a legitimate and necessary mechanism of accountability, particu- larly for those for whom alternate avenues are effectively closed. Instead of challenging the very idea of Charter- based scrutiny of social and economic policy-making, political scientists and other public policy experts could be pro- viding valuable insights and direction as to how the judicial review process could be made more effective, accessible, and fair. In particular, such experts should be focusing on how financial and other resource imbalances affect potential liti- gants’ ability to access the courts, to identify and marshal necessary evi- dence, and to participate on an equal footing in Charter review of govern- ment decision-making in the social wel- fare and other regulatory areas. Political scientists and other public policy experts should also be adding their voic- es to calls from the law reform commu- nity for systemic reform of the judicial appointments process, not to secure nominees more deferential to govern- ment spending choices, but rather to ensure a more diverse and representa- tive judiciary "one more able and more willing to question the discriminatory presumptions about poor people and the state that underlie most poverty- related Charter case law to date.
More importantly, political scien- tists, like constitutional lawyers, must expand their Charter focus beyond the judicial branch itself. Section 52 of the Constitution Act, 1982 declares that ”œThe Constitution of Canada is the supreme law of Canada.” Section 32(1) of the Charter states that the Charter applies to Parliament and the federal govern- ment, and to provincial and territorial legislatures and governments in rela- tion to all matters within their author- ity. Governments are called upon by the Constitution to respect Charter rights and principles in their laws, policies, and practices, whether or not the courts have ordered them to do so.
Instead of asking judges to reme- dy the results of a defective political process after the fact, as constitution- al lawyers must perforce do, political scientists and other public policy experts are in an excellent position to examine how the Charter can be interpreted and applied to directly address the serious problems that exist within our current political and parliamentary system.
What is it about our political process that enables legislatures and governments to ignore the most funda- mental interests of significant segments of society with impunity? At the level of basic governance and accountability, why is it that governments of all politi- cal stripes can continue to rely on dis- criminatory stereotypes about the poor and the unemployed in promoting regressive social and economic policy choices. In terms of our electoral sys- tem, is a first-past-the-post model really congruent with notions of substantive equality, not only from the perspective of the poor but of Aboriginal, racialized and other politically under-represented communities? Is the current lack of formal legislative oversight over political parties and their resulting immunity from Charter scrutiny on expression, equality and other grounds justifiable in light of basic democratic principles? How can Charter guarantees of freedom of expression, liberty, security of the person, and equality be used to ensure better representation of, and accounta- bility to, politically vulnerable groups? What do democratic rights guarantees under the Charter have to say to the lack of mechanisms to promote effec- tive participation in local, provincial and national civic life beyond the bare right to vote in an election every five years? And what do Charter democratic rights have to say about the domina- tion of the legislative by the executive branch; about the lack of effective leg- islative oversight over regulatory deci- sion-making, particularly in the social welfare area; and about the lack of accountability of delegated decision- makers to those most directly affected by their decisions, especially the poor?
These are just some of the Charter- related questions which, in my view, are seriously deserving of attention from political scientists and other pub- lic policy experts in the face of declin- ing confidence, not only of people living in poverty, but of all Canadians, in the legitimacy and competence of our governing institutions. I particu- larly urge them to this task since, from where I sit, the Court Party is not like- ly to be elected any time soon.