National Post

Friday, December 20, 2002

Welfare is not a right, judges say

Provinces win power struggle with poverty groups

Janice Tibbetts
Southam News, with files from The Canadian Press
National Post

OTTAWA - Canadians do not have a constitutional right to guaranteed state welfare support, the Supreme Court of Canada has ruled.

By a 5-4 decision, the judges rejected the argument of welfare-rights activists who argued the constitutional protection for "security of the person" under the Charter of Rights included a guaranteed standard of living.

"The frail platform provided by the facts of this case cannot support the weight of a positive state obligation of citizen support," said Chief Justice Beverley McLachlin, writing for the Supreme Court majority.

But she went on to suggest the law could conceivably evolve in that direction. She said it would be a mistake to view the Charter as "frozen" and incapable of novel interpretation, and such judicial interpretation "should be allowed to develop incrementally" as new issues arise.

William Robson, vice-president of the C.D. Howe Institute, said the ruling appeared to confirm Parliament's right to control the public purse. He said if the court had ruled in favour of constitutional payments it would have involved the raising of taxes to pay for it.

The case centred on Louise Gosselin, from Montreal, who argued that Quebec's welfare rules in the 1980s violated her Charter of Rights guarantees to equality and life, liberty and security of the person.

Her lawyers said provincial rules -- which reduced benefits for able-bodied recipients younger than 30 who did not participate in job training or education -- amounted to age discrimination.

Ms. Gosselin said she was forced to rely on shelters and soup kitchens because her benefits were cut to $163 per month. Recipients older than 30 received $448 monthly under the program.

"Social assistance is a right, not a privilege," her lawyer, Carmen Palardy, also argued.

A number of poverty advocates joined the appeal saying it was time the Supreme Court included the poor as a protected group under the Charter.

The Quebec government, joined by Alberta, Ontario, British Columbia and New Brunswick, argued provincial governments must design social policy, and not be limited by the courts to simply handing out cash payments.

"There is no obligation on the state to provide that standard of living by handing money to all those who claim. Rather, the obligation on the state is to assist persons in recognizing their right to an adequate standard of living," lawyers for Alberta argued.

They said the Charter's drafters intentionally excluded social and economic rights because the Charter's purpose was to limit government action, not to impose obligations on government.

Provincial governments cautioned that including economic protection in the Charter could have enormous implications on everything from rent increases to the supply of public housing and the cost of food, prescription drugs, water, electricity and gas.

Two dissenting judges -- Justices Louise Arbour and Claire L'Heureux-Dubé -- accepted the claim that Ms. Gosselin and other under-30 welfare recipients had a right to an adequate living standard.

"The exclusion of young adults from the full benefits of the social assistance regime substantially interfered with their fundamental right to security of the person," Judge Arbour wrote.

Ms. Gosselin filed on behalf of 75,000 young Quebecers she claimed suffered under an alleged discriminatory law.

The lawsuit sought damages from the Quebec government of more than $500,000. The Supreme Court, at a hearing in October, 2001, was warned that the tab across the country could reach billions of dollars if the judges sided with Ms. Gosselin.

"It is utterly implausible to ask this court to find the Quebec government guilty of discrimination under the Canadian Charter and order it to pay hundreds of millions of taxpayer dollars to tens of thousands of unidentified people, based on the testimony of a single affected individual," wrote Chief Justice McLachlin.

In a 5-4 ruling, the majority of the judges embraced provincial welfare plans -- known as workfare.

Work-for-welfare programs are a "common sense" initiative to break the welfare cycle of dependency and despair, Chief Justice McLachlin said.

"Instead of turning a blind eye to these problems, the government sought to tackle them at their roots," she wrote.

The court compared such schemes to an old Chinese proverb: "Give a man a fish and feed him for a day. Teach him how to fish and you feed him for a lifetime."

Ms. Gosselin, now 43, took solace in the fact that the ruling was close. "What counts is to not lose hope, to continue to believe in the value that we live in a democratic society," she said at a news conference at her lawyer's office in Montreal.

The case was closely watched by legal analysts who viewed it as a groundbreaking test of the Charter's parameters.

"We would have hoped that the Supreme Court would have come out to recognize that it's a profound violation of the equality rights of poor people when governments set social assistance rates at a level that makes it impossible for people to live," Martha Jackman, lawyer for the Charter Committee on Poverty Issues, said outside the court.

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