There are good news elements in the Supreme Court of Canada’s decision in Gosselin v. Québec (Attorney General). Justice Arbour has written an important and fresh decision on section 7, finding that it creates a positive obligation on governments to deal with economic deprivation. In addition, the majority on the discrimination issue is a slim one, five judges of nine, and the four minority judges have written strong dissents, rejecting not just the result of the majority, but the reasoning.
The decision is nonetheless a disturbing one – disturbing because the majority of the Supreme Court of Canada has embraced stereotypes of poor people, and perpetuated an image of the poor as socially irresponsible.
At issue in Gosselin was a 1984 Quebec welfare scheme that cut the welfare rate for thousands of 18 to 30 year old welfare recipients from the regular rate of $470 per month to $170. At the same time, the Quebec government established training and education programs, and 18 to 30 year old recipients who participated in these programs could increase their welfare rates, though not necessarily to the regular rate. Louise Gosselin claimed that this scheme was discriminatory on the basis of age, and violated the s. 7 right to security of the person.
In previous cases, the Court has decided, that in order to qualify as discrimination, differential treatment must be harmful to human dignity. In this case, the majority, led by Chief Justice Beverly MacLachlin, held that the differential treatment of under 30s, far from harming dignity, was a well-intentioned attempt to provide an incentive to undertake training and education programs. The majority accepted the Quebec government’s statement of its good intentions as determinative, and rejected as insufficient the evidence that the training and education programs were unable to provide a meaningful and ongoing opportunity for all those aged 18 to 30 to participate and to secure the regular rate of welfare.
By contrast, the four minority judges found that the programs had eligibility rules that disqualified some, there were only 30,000 spaces for 85,000 young people, and there were times when people in the group had to wait to get into programs. They accepted evidence that, over the life of the scheme, only 11 per cent of the young recipients got access to the regular rate. Others had to try to live on the admittedly below subsistence rate of $170 per month.
The minority also accepted evidence that the harm caused by the below subsistence rate were harsh. The young welfare recipients experienced serious psychological and physical stress. They were often homeless and malnourished. Some attempted suicide. The minority had no difficulty finding ample evidence that Charter rights were violated.
However, what is centrally disturbing is that five judges sanction a government decision to use extreme poverty as an ‘incentive’ for education and training. Their reasoning buys directly into the stereotype that under 30s on welfare are lazy, unwilling to work, and must be coerced into productive lives. To avoid giving life to the stereotype, the government of Quebec would have had to show some faith in the willingness of young people to do whatever they could to gain skills and find employment. To consign them to extreme poverty unless they participated in (flawed) training and employability programs was to endorse the stereotype with a vengeance.
In allowing extreme poverty to be used as an incentive, the majority has sanctioned a particularly high-risk form of “tough love.” It permits the government to knowingly endanger the physical and psychological health of young people, and to jeopardize their safety, just because of who they are.
While it must be acknowledged that the Court is only just beginning to explore the human rights implications of poverty, and so is bound to make some mistakes, there is a world of difference between honest mistakes and unexamined, or undeclared, prejudices. In upholding the Quebec scheme, the majority upheld, indeed embraced, the prejudices inherent in that scheme.
Thanks are due to David Wiseman, Assistant Professor in the Faculty of Law at the University of Windsor, for his collaboration on this article.
Shelagh Day is a human rights expert and advocate. She is the Special Advisor on Human Rights to NAWL.