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The Supreme Court of Canada will soon be hearing a precedent-setting case about the right to adequate social assistance benefits. NAWL was granted leave to intervene in the case, to present a feminist analysis of the issue. Gosselin v. The Attorney General of Québec (27418) is scheduled to be heard in fall 2001.
The case began in 1989, when Louise Gosselin brought a class action to challenge social assistance legislation in force at the time in Québec. Under the Regulation Respecting Social Aid, R.R.Q. 1981 c. A — 16, r. 1, employable single people under the age of 30 on social assistance received no more than approximately $170 per month. This represented about one third of the regular benefit paid to other adults. People under 30 years of age received the regular rate only if they participated in an employability program, which the vast majority of recipients under 30 years of age were unable to do. The “reduced rate”, as it was called, was insufficient to allow people under 30 to meet even their basic needs for food, clothing and shelter.
As the NAWL factum states, based on expert psychological and other testimony at trial,
“[Young people] underwent extreme stress and had to resort to degrading and criminalized survival strategies such as begging and petty theft. They were often malnourished. The reduced rate was also associated with suicidal thought, suicide attempts and actual suicide.”
The factum also points to evidence that showed the particular hardships the reduced rate had on young women. In order to qualify for the regular assistance rate, some young women had children, but the particularly serious malnutrition resulting from trying to survive on the reduced rate in early pregnancy, meant that the babies were often low birth-weight. A number of young women engaged in prostitution or had to endure sexual harassment in order to keep their boarding house rooms, to pay for heat and electricity, and to buy food.
The Québec government abolished the regulation in 1989, but not before many young people suffered under its harshness. Gosselin is suing the Québec government, seeking damages for herself and all the other young people who received the reduced rate of social assistance. She is also seeking a declaration that the legislation, which has since been repealed, was unconstitutional, violating both sections 7 and 15 of the Canadian Charter of Rights and Freedoms, and section 45 of the Quebec Charter of Human Rights and Freedoms.
The Pitfalls of a Formal Equality Analysis
The appellant Gosselin is arguing that the Social Aid Regulation discriminated against social assistance recipients on the basis of age, contrary to s. 15 of the Charter.
In the lower courts, the s. 15 arguments were based strictly on a model of formal equality. So far, the debate has turned largely, if not exclusively, on the question of the explicit distinction between people over and under 30 years of age. The relative disadvantage of all people on social assistance, whether they are over or under 30 years of age, with or without children, alone or in couples, has been far from front and centre. Moreover, even though the plaintiff is a woman, very little attention has been paid to the regulation’s specific, adverse effects on women, despite many illustrations of the specific effects that the Record contains.
Should Issues of “Social Policy” Be Immunized from Charter Scrutiny?
A majority of the Québec Court of Appeal 1 held that there was discrimination on the basis of age, but that “social assistance” as social policy, called for an elevated level of deference from the Court. The Court of Appeal promptly concluded that the age-based discrimination was justified under section 1 of the Charter. The Court’s reasoning that social assistance benefits are a matter of “social policy” and “distribution of scarce resources” best left to the legislature, essentially immunizes discrimination in the social and economic arena from Charter scrutiny.
NAWL’S Position on the Equality Issue
NAWL’s factum puts forth a substantive equality analysis that takes into account the fact that Louise Gosselin was poor, and a woman. Starting from this more holistic viewpoint, NAWL attempts to illustrate the true extent of the harm occasioned by the reduced rate of social assistance, including the specific and very grave harm caused to young women.
NAWL argues that the severe poverty caused by the reduced rate of social assistance under the regulation diminished women’s decision-making autonomy in their relationships with men — Louise Gosselin’s own testimony furnished several eloquent examples — and increased women’s vulnerability to violence and exploitation. Indeed, studies prove that homelessness and life in communal shelters — inevitable consequences of the reduced rate for certain women — significantly increase women’s vulnerability to sexual assault and harassment. In concluding the discussion about both the immediate and long-term physical and psychological effects of the abject poverty caused by the reduced rate, the NAWL factum succinctly states, “When she reached her 30th birthday, and became eligible for the regular rate of social assistance, Ms. Gosselin felt as though she had won a victory simply because she had managed to stay alive.”
The NAWL factum emphasizes that access to adequate social assistance programs is a key issue for women, particularly for Aboriginal women, women who are recent immigrants to Canada and Quebec, and women with disabilities. Unless the Supreme Court overturns the Court of Appeal’s ruling that essentially means issues relating to social assistance are immune from Charter scrutiny, equality rights will not mean much for the many women whose source of income is social assistance.
Security of the Person
The appellant also argues that the regulation violated her right to security of the person protected by s. 7 of the Canadian Charter. In other words, because the evidence showed that her social assistance benefit didn’t allow her to have access to the most basic necessities of life, such as food, housing and clothing, it compromised her physical and mental integrity to the point where her security of the person was threatened.
The Québec Appeal Court unanimously rejected the s. 7 argument, relying on the dichotomy between “civil and political rights” on the one hand, and “social and economic rights” on the other. Within traditional rights analysis, civil and political rights are considered to be justiciable. They are engaged solely through state action as opposed to inaction, and they are characterized as “negative rights.” Conversely, social and economic rights are not considered to be justiciable. They are characterized as “positive rights” and the government is not, according to the traditional view, legally obliged to do anything about their realization.
Even though it is obvious that lack of the means of subsistence can jeopardize human life, under the traditional analysis, since any right to financial assistance is seen as an economic right, last resort assistance is excluded from the scope of s. 7.
The Interdependency and Indivisibility of All Human Rights
The NAWL factum points out that the Canadian and Québec governments’ commitments under international law belie such a compartmentalized and disembodied vision of human rights, particularly when it comes to women’s right to equality. For example, the Beijing Platform for Action explicitly recognizes the connection between women’s poverty and the increased likelihood of women being forced into situations in which they are vulnerable to sexual exploitation. The Platform commits governments to adopt economic policies to address the poverty of women.
NAWL argues that in fact, access to adequate social assistance is fundamental to the equality rights of women, both because of women’s disproportionate poverty and because of the particular ways in which the absence of adequate social assistance exacerbates and reinforces women’s economic inequality, constrains women’s choices, and ultimately subjugates women to men. In other words, NAWL argues that s. 7 rights must be interpreted through the lens of women’s equality rights.
An Acceptable Standard of Living
The appellant is asking the Supreme Court to declare as well that the regulation was in violation of the right to social assistance set out in s. 45 of the Québec Charter of Human Rights and Freedoms. Section 45 provides that everyone in need has “a right … to measures of financial assistance and to social measures provided for by law, susceptible of ensuring such person an acceptable standard of living.”
In spite of s. 45, a majority of the Québec Court of Appeal concluded that social and economic rights, such as the right to financial assistance of a person in need, are not enforceable rights. The Court refused to recognize that the courts have any right to review whether or not the financial measures provided for in the regulation actually ensured an acceptable standard of living. And while one dissenting Justice of the Court concluded that the reduced rate did indeed violate s. 45, even this Justice concluded that no remedy was available to the people whose rights had been violated.
It remains to be seen how the Supreme Court will rule on these various points of law. One thing is sure, this case will be very significant for the equality rights of Canada and Quebec’s most disadvantaged women, as well as for the recognition of social and economic rights as “real rights”.
More information about the case, as well as the complete text of NAWL’s factum, is available on NAWL’s website at nawl.ca/projects.htm [In French: www.anfd.ca/projets.htm]. NAWL’s factum was written by Gwen Brodsky in close collaboration with Rachel Cox, as well as members of the NAWL Steering Committee. The Charter Committee on Poverty Issues, Rights and Democracy and the Québec Human Rights Commission have also intervened in the Gosselin case.
1 Gosselin c. Québec (Procureur général),  J. Q. no 1365 (Que. C. A.).
Rachel Cox is a Montréal human rights and labour lawyer and a member of NAWL. Gwen Brodsky and Rachel Cox are counsel to NAWL for the Gosselin case.
Rachel Cox and Gwen Brodsky