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On October 29, 2001, the Supreme Court of Canada heard 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.

Welfare not a right, Supreme Court rules

The needy and indigent suffered a stinging defeat in the Supreme Court of Canada on Thursday when the court said a Charter of Rights guarantee to equal treatment does not encompass a distinct right to social-welfare benefits.

The court ruled 5-4 against a claim by an young, indigent Quebec woman. The appellant - Louise Gosselin - had argued that her low monthly welfare rate of $170 discriminated against her based on her youth.

The judges also ruled 7-2 on the separate question of whether Charter right to life, liberty and security of the person includes a right to basic welfare benefits.

The ruling was enormously significant for the needy and their advocates, who viewed it as an opportunity to force governments to provide a basic level of subsistence for their most needy citizens.

Lawyers for Ms. Gosselin argued that it would be absurd to interpret the Charter guarantee of "life, liberty and security of the person" as excluding those who are missing the most basic necessities of life.

They also argued that if no such right were to exist, it would put Canada in violation of international human-rights law.

Ms. Gosselin found herself relegated to a particularly low rate of assistance that targets employable people under the age of 30. The $170 a month that she received was the lowest of any rate in Canada.

Obliged to survive in any way she could, Ms. Gosselin was often homeless, malnourished, underdressed and reliant on soup kitchens and charity-run programs for most of her food.

She contended that the provision violated her right to life, liberty and security of the person as well as her equality rights. She also invoked a section in Quebec's Charter of Rights that guarantees the right to adequate financial assistance.

The governments of Quebec, B.C., Alberta and Ontario argued against there being any such right to provide for those in need. A number of social advocacy groups made legal arguments in support of Ms. Gosselin.

Ms. Gosselin lost at trial and again at the Quebec Court of Appeal, making Thursday's decision her third and final defeat.

Three of the four judges who supported Ms. Gosselin's equality-rights argument have their roots in her home province - Madam Justice Claire L'Heureux-Dubé, Mr. Justice Louis LeBel and Madam Justice Louise Arbour. Mr. Justice Michel Bastarache was the fourth dissenting judge.

The vote was not as close on the question of whether the restriction on Ms. Gosselin violated the Charter's Section 7 right to life, liberty and security of the person. Only Judge L'Heureux-Dubé and Judge Arbour felt that it did.

The litigation actually took the form of a class action in which Ms. Gosselin represented all welfare recipients under the age of 30 who were subject to the lower payment rate between the years of 1985-1989. The plaintiffs estimated that the entire group affected by the payments were owed compensation of $389-million, plus interest.


Social-welfare benefits not a right

December 19, 2002 the court ruled NO
Merry Christmas to you, too, overfed scrooges

The needy and indigent suffered a stinging defeat in the Supreme Court of Canada on Thursday when the court said a Charter of Rights guarantee to equal treatment does not encompass a distinct right to social-welfare benefits.

The court ruled 5-4 against a claim by an young, indigent Quebec woman. The appellant - Louise Gosselin - had argued that her low monthly welfare rate of $170 discriminated against her based on her youth.

The judges also ruled 7-2 on the separate question of whether Charter right to life, liberty and security of the person includes a right to basic welfare benefits.

The ruling was enormously significant for the needy and their advocates, who viewed it as an opportunity to force governments to provide a basic level of subsistence for their most needy citizens.

Lawyers for Ms. Gosselin argued that it would be absurd to interpret the Charter guarantee of "life, liberty and security of the person" as excluding those who are missing the most basic necessities of life.

They also argued that if no such right were to exist, it would put Canada in violation of international human-rights law.

Ms. Gosselin found herself relegated to a particularly low rate of assistance that targets employable people under the age of 30. The $170 a month that she received was the lowest of any rate in Canada.

Obliged to survive in any way she could, Ms. Gosselin was often homeless, malnourished, underdressed and reliant on soup kitchens and charity-run programs for most of her food.

She contended that the provision violated her right to life, liberty and security of the person as well as her equality rights. She also invoked a section in Quebec's Charter of Rights that guarantees the right to adequate financial assistance.

The governments of Quebec, B.C., Alberta and Ontario argued against there being any such right to provide for those in need. A number of social advocacy groups made legal arguments in support of Ms. Gosselin.

Ms. Gosselin lost at trial and again at the Quebec Court of Appeal, making Thursday's decision her third and final defeat.

Three of the four judges who supported Ms. Gosselin's equality-rights argument have their roots in her home province - Madam Justice Claire L'Heureux-Dubé, Mr. Justice Louis LeBel and Madam Justice Louise Arbour. Mr. Justice Michel Bastarache was the fourth dissenting judge.

The vote was not as close on the question of whether the restriction on Ms. Gosselin violated the Charter's Section 7 right to life, liberty and security of the person. Only Judge L'Heureux-Dubé and Judge Arbour felt that it did.

In a portion of the ruling eagerly awaited by constitutional lawyers, the majority adopted a notably cautious and incremental approach to the all-important right to life, liberty and security of the person.

They said the section has so far been interpreted largely in the context of threats to the legal rights of citizens. Courts must adopt caution in extending S.7 rights outside the criminal context, they said - particularly if it means using the section to force governments to take pro-active remedial action.

"Thus far, the jurisprudence does not suggest that S. 7 places positive obligations on the state," Madam Justice Beverley McLachlin wrote for the majority.

"Rather, S.7 has been interpreted as restricting the state's ability to deprive people of their right to life, liberty and security of the person. Such a deprivation does not exist here, and the circumstances of this case do not warrant a novel application of S.7 as the basis for a positive state obligation to guarantee adequate living standards."

In regard to the equality challenge, the court said that Ms. Gosselin failed to establish that the welfare regimen treated he as being "less worthy" than older welfare recipients simply because it had built-in incentives to prod young recipients back into the workplace.

"The government's long-term purpose was to provide young welfare recipients with precisely the kind of remedial education and skills training they lacked and needed in order to integrate into the workforce and become self-sufficient," Chief Justice McLachlin wrote.

Far from being discriminatory in a negative way, the welfare regimen actually showed great sensivity and concern toward the interests of young people who were thrown onto the welfare rolls during the early years of a serious recession, the majority said.

"The regime constituted an affirmation of young people's potential rather than a denial of their dignity," they said.

Judge Arbour's dissenting reasons amounted to a plea for the court to give a broad reading to the right to life, liberty and security of the person, lest it choke off the promose of the Charter itself.

She said the right is a vital one that was never intended to apply only to negative extremes of criminal law such as capital punishment.

"Constitutional rights are not simply a shield against state interference," Judge Arbour said. "They place a positive obligation on the state to arbitrate competing demands arising from the liberty and rights of others."

She said judge cannot shirk from interpreting the Charter simply because it could force governments to spend money.

"In certain cases, S.7 can impose on the state a duty to act where it has not done so," she said. "The Charter compels the state to act positively to ensure the protection of a significant number of rights.

"Economic rights that are fundamental to human life or survival are not of the same ilk as corporate-commercial economic rights," she said. "The right to a minimum level of social assistance is intimately intertwined with considerations related to one's basic health and, at the limit, even one's survival."

Judge L'Heureux-Dubé insisted in her own set of dissenting reasons that Ms. Gosselin's psychological and physical integrity were severely breached by the arbitrary division between welfare recipients under and over 30.

"Harm to dignity results from infringements of individual interests including physical and psychological integrity," she said. "Such infringements undermine self-respect and self-worth and communicate to the individual that he or she is not a full member of Canadian society."

Meanwhile, Judge Bastarache noted that while 85,000 single people under the age of 30 were on social assistance at the time, the Quebec government had reserved only 30,000 places in retraining and education programs.

This suggested that the province was expecting a large number of people would not respond to the program in hopes of increasing their monthly payments - a fact that raised inferences that the province's primary interest was in saving money.

"The differential treatment had severe deleterious effects on the equality and self-worth of the appellant and those in her group which outweighed the salutary effects of the scheme in achieving the stated government objective," Judge Bastarache said.

Judge LeBel took an even more hard-line approach in opposition to the welfare scheme.

"Young social assistance recipients in the 1980s certainly did not latch onto social assistance out of laziness," he wrote. "They were stuck receiving welfare because there were no jobs available.

"Even if the government could validly encourage young people to work, the approach adopted discriminated between social aid recipients under 30 years of age and those 30 years of age and over for no valid reason."

The litigation actually took the form of a class action in which Ms. Gosselin represented all welfare recipients under the age of 30 who were subject to the lower payment rate between the years of 1985-1989. The plaintiffs estimated that the entire group affected by the payments were owed compensation of $389-million, plus interest.


Louise Gosselin is putting it to the Court

Do poor people have a right to live?

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.

This case was heard Oct. 25. All of Canada awaits the decision