The Gosselin Case
Supreme Court to Hear First Social and Economic Rights Claim: Gosselin v. Quebec
About the case
Significance of the Case
What Can You Do to Support Louise Gosselin’s Claim?
On October 29, 2001, the Supreme Court of Canada will hear an historic case - the first claim under the Canadian Charter of Rights and Freedoms and the first claim under human rights legislation to a right to an adequate level of social assistance for those in need.
There is a lot riding on it for poor people and for human rights in Canada. The Charter Committee on Poverty Issues (CCPI) has been granted leave to intervene. So have the National Association of Women and the Law (NAWL) and Rights and Democracy, previously the International Centre for Human Rights and Democratic Development, headed by Warren Allmand.
Louise Gosselin was subject to s. 29(a) of the Règlement sur l’aide sociale a regulation under Quebec’s Loi sur l’aide sociale (L.R.Q., c. A-16) which established a reduced assistance for those under 30 who were employable and not engaged in workfare. This class of recipients received, during the relevant period, $173 rather than $434. The reduced rate for employable individuals under thirty, however, actually preceded any workfare and trainfare programs. It is essentially undisputed that the reduced rate was grossly inadequate. It constituted less than 20% of Statistics Canada’s Low Income Cut-Off - the lowest rate in Canada. Ms. Gosselin was periodically homeless and slept in shelters. She lived in an unheated apartment for a winter. When she rented a room in a boarding house, she had no money left for food; and a man from whom she was receiving food attempted to rape her. She felt compelled to agree to live intimately with a man for whom she had no affection, merely to receive basic necessities. Ms. Gosselin alleges that the regulation violates sections 7 and 15 of the Canadian Charter as well as section 45 of Quebec’s s.45 Charte des droits et libertés de la personne.
The Charter Committee on Poverty Issues ("CCPI") was granted intervener status by the Supreme Court in August, 2000. We filed our factum with the Court in July, 2001. We have been granted permission to make 10 minutes of oral argument on October 29th. We will be represented by Vincent Calderhead, from Nova Scotia Legal Aid, and Martha Jackman, Professsor of Law at the University of Ottawa.
CCPI’s submissions focus on the crucial issue of whether the rights guaranteed in sections 7 and 15 of the Charter impose a positive legal obligation upon governments to ensure an adequate level of income for Canadians when they are unable to provide for themselves. We argue that this interpretation of these Charter rights is well within the institutional competence and mandate of the courts, and that it is crucial to the full realisation of Canada’s commitments under international human rights instruments such as the International Covenant on Economic, Social and Cultural Rights.
Significance of the Case
The Gosselin case provides the first opportunity for the Supreme Court to consider whether denying members of a disadvantaged group adequate financial assistance, resulting in homelessness and deprivation of other basic necessities, violates the Charter. The case raises the critical issue of whether the right to "security of the person" in section 7 of the Canadian Charter and the right to equality under section 15 impose positive legal obligations upon governments to ensure an adequate level of income for Canadians when they are unable to provide for themselves.
As we urged in our factum, what is at stake for the poor in this case is their legitimate place in Canada’s constitutional democracy and the "rights revolution" that has occurred over the past twenty years. While disadvantaged groups have made important gains under the Charter, those living in poverty have seen their circumstances worsen. Since the Charter’s adoption, homelessness has grown to what the mayors of Canada’s ten largest cities have declared a "national disaster", and distribution of emergency food through food banks is now a critical means of survival for three quarters of a million people. The emergence of widespread hunger and homelessness has been largely the result of government choices made during times of economic prosperity and growing affluence among advantaged groups. While these government choices have been identified by international human rights treaty monitoring bodies as among the most serious human rights violations in Canada, they have not, to date, been the subject of Charter scrutiny by the Supreme Court of Canada.
Lower courts, to date, have excluded deprivations linked to poverty and homelessness from the scope of ss. 7 and 15 of the Charter, either on the grounds that they concern "economic rights" not protected by the Charter or on the grounds that courts are not institutionally competent or authorized to review government fiscal policy. This approach denies Canada’s poorest citizens the full and equal benefit of the Charter’s protections. The Gosselin case provides a clear opportunity for the Court to rectify this situation, and to give the Charter the kind of interpretation that would ensure that the poor are no longer, in Chief Justice McLachlin’s words, "constitutional castaways."
Our arguments have fundamental implications for the kind of protection that the Charter is capable of extending to the poor, and consequently, for the kinds of legal challenges that are available to the poor under the Charter. We have argued that the intersecting requirements under sections 7 and 15 that governments protect physical and psychological integrity and dignity and "recognise the full place of all individuals and groups within Canadian society" place substantive obligations on the government –obligations to provide for the basic necessities which are necessary for dignity, mental and physical health and security. The Court’s recognition that the Charter does impose such obligations would make it possible for the poor to seek legal redress for the denial of these basic goods.
What Can You Do to Support Louise Gosselin’s Claim?
The community affected by this case extends beyond those who were on social assistance
in Quebec at the time that the relevant regulation was in force. The decision which the Court reaches on the question of whether the regulation violates ss.7 and 15 will have ramifications for the constitutionality of all social assistance programmes, in all provinces and for the nature of Charter protections for the most disadvantaged groups in Canada, whether it be people with disabilities, Aboriginal people, women, single mothers, young families or visible minorities. The case directly affects all those who are or might find themselves on social assistance. Moreover, the particular interpretation which the Court gives to the rights in ss. 7 and 15 will have ramifications for the kind of protection which these rights extend to anyone living in poverty, including those who are not on social assistance.
The media has led an attack on the Charter and on what they call "judicial activism" through which courts give directions to governments about social and economic policy. It is critical that people who care about human rights in Canada speak out about this case, write to newspapers, contact politicians or hold information meetings to let people know that the future of social rights in Canada is at stake. Those who can get to Ottawa for the hearing on the 29th are encouraged to do so.
The Government revoked the Canada Assistance Plan in 1996, removing the legally enforceable requirement that provinces provide an adequate level of social assistance to those in need. Our main hope is that this right, so fundamental to international human rights law, will be recognized as a component of the right to security of the person and equality under the Canadian Charter of Rights. However, lower courts have rejected these claims, at great cost to disadvantaged members of society.
As many know, a number of social assistance recipients in Ontario took the Ontario Government to Court back in 1995 to challenge the proposed 21.6% cuts to welfare in that province. It was accepted by the Court in that case that the cuts would force many families out of their homes and into homelessness. As we all know, this is exactly what has happened. Yet the Ontario Court, General Division found that neither section 7 or 15 of the Charter requires governments to provide adequately for those in need. In that case, O’Brien J. noted found that:
S. 7 [of the Charter] does not provide the applicants with any legal rights to minimal social assistance. The legislature could repeal the social assistance statutes... . In my view, s.7 does not confer any affirmative right to governmental aid... . [M]oreover, there is no reason in law why the Government of Ontario must so provide.
This decision shocked the United Nations Committee on Economic, Social and Cultural Rights when it reviewed Canada’s compliance with economic, social and cultural rights in Geneva in 1998. The Committee found, in its concluding observations, that:
14. The Committee has received information about a number of cases in which claims were brought by people living in poverty (usually women with children) against government policies which denied the claimants and their children adequate food, clothing and housing. Provincial governments have urged upon their courts in these cases an interpretation of the Charter which would deny any protection of Covenant rights and consequently leave the complainants without the basic necessities of life and without any legal remedy.
15. The Committee is deeply concerned at the information that provincial courts in Canada have routinely opted for an interpretation of the Charter which excludes protection of the right to an adequate standard of living and other Covenant rights. The Committee notes with concern that the courts have taken this position despite the fact that the Supreme Court of Canada has stated, as has the Government of Canada before this Committee, that the Charter can be interpreted so as to protect these rights.
It is critical to the future of human rights in Canada that othe Supreme Court of Canada decide in favour of Louise Gosselin in this case if the rights of the most disadvantaged in society to basic dignity and security are to be protected under the Canadian Charter of Rights and Freedoms.
Please do what you can to encourage support for Louise Gosselin’s claim and CCPI’s and others’ interventions.. Contact Bruce Porter <firstname.lastname@example.org> Vince Calderhead <email@example.com> for more information.