- This presentation seeks to bring to the urgent attention of the Committee an extraordinary structural change to the social-security system in Canada. The dramatic changes to the way the Canadian government will be providing for people living in poverty are contained in proposed legislation (Bill C-76) now before the Canadian Parliament
- We submit that in light of the Bill's very serious withdrawal of legal protections and rights for those in poverty, it is fully open and appropriate to require Canada to account for these actions and explain how the measures achieved by Bill C-76 are consistent with the terms of the Covenant and related instrument.
Limburg Principles, paragraph #88
- Bill C-76 ("an Act to implement certain provisions of the budget tabled in Parliament on February 27, 1995") proposes the repeal of the Canada Assistance Plan (referred to in Canada as "CAP").
- CAP, (enacted in 1966), is the Federal legislation which addresses the requirement to provide social assistance. For that reason, it has been consistently and repeatedly referred to by the Government of Canada in its reports to this Committee as the central piece of legislation which provides for both the financing (on a cost-shared basis) of provincial social-assistance programs and the setting of national standards for these programs which provinces had to meet in order to be eligible for Federal funding.
- It has been CAP which the government of Canada has cited in order to demonstrate its compliance with the Covenant and, in particular, article 11 respecting the right to an adequate standard of living. Canada has invoked CAP in many of its reports to the United Nations. Thus, in August, 1980, the Report of Canada on the Implementation of the Provisions of Articles 6 to 9 of the Covenant stated:
"Since Canada is a federal country, with many of the responsibilities for social security resting primarily with the provincial governments by virtue of the constitution, the _social security system, overall, is a blend of four types of programs:
1...
2. federal-provincial programs that are jointly financed by the federal and provincial governments, administered by the provinces and co-ordinated to allow portability of benefits and provide for uniform minimum national standards emphasis added);
3...
4...
(p. 51)
"For persons in need, provincial social assistance programs jointly financed with the Federal government under the Canada Assistance Plan provide benefits based on a needs test which takes into account a person's budgetary requirements and his income and resources..." (P. 54)
In August, 1982, the Report of Canada on the Implementation of the Provisions of Articles 10-12 of the Covenant stated:
" The Canada Assistance Plan is the legal authority through which the federal government shares with the provinces the cost of providing social assistance and welfare services to individuals in need or likely to become in need... (p. 13)
" Through the Canada Assistance Plan, the Government of Canada shares 50 percent of certain costs related to the provision of child welfare services..." (p. 25)
" Under Part I of the Canada Assistance Plan provision is made for the cost-sharing with provinces and territories of general social assistance payments to persons in need. Assistance includes payments for food, shelter, clothing, fuel, utilities, household supplies, and personal requirements as well as prescribed welfare services and items of special need, such as tools or equipment essential to obtaining employment and essential repairs or alterations to property..." (p. 33)
In September 1992, the Second Report of Canada on Articles 10-15 stated:
" Joint programmes established by agreements between the Government of Canada and those of the provinces and territories ensure the delivery of services to all residents in Canada, for example the welfare assistance provided under the Canada Assistance programmes, student loans and so on."
E/1990/6/Add.3
25 January 1992, p. 3, para. 14
" In Canada, the provinces have established programmes for the payments of social allowances to persons in need. The federal government assists in the funding of these programs through the Canada Assistance Plan, which sets certain standards for the provinces to be eligible for this assistance..." (emphasis added)
E/1990/6/Add.3, 25 January, 1992, p.8, para. 40
"In addition to the Canada Assistance Plan discussed in previous reports and in part I above, numerous programmes aim at improving the standard of living and living conditions of people. (emphasis added)
E/1990/6/Add.3, page 15, para. 74
- These "national standards", contained in the CAP legislation, amounted to a national set of rights for social assistance recipients.
- Moreover, and of central importance to our submission is the fact that the Supreme Court of Canada ruled in Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607 that the standards or conditions in CAP were legally enforceable by individual social assistance recipients. In other words, the rights of people to domestically enforce the conditions or 'rights' in CAP is a profoundly important feature of Canada's social security system in terms of its realization of the requirements of the Covenant. Indeed, this feature was highlighted by the government of Canada itself in its 1992 report to the Committee.
see E/1990/6/add.3, page 8, para. 40
- The CAP legislation requires inter alia, that provinces ensure several important substantive and procedural rights, Provinces must:
1) provide assistance to every person in need - regardless of the cause of need (CAP S. 6(2)(a));
2) take into account a person's budgetary requirements and the income and resources available to him to meet them (CAP s. 6(2)(b));
3) provide an appeal mechanism so that people have a legal right to challenge decisions affecting their entitlement to social assistance (CAP s. 6(2)(e));
4) not require that people who are in receipt of social assistance perform work against their will as a condition of receiving assistance (CAP s. 15(3)(a));
In addition, provinces:
5) are eligible for federal cost-sharing on a matching (reimbursed) basis only (i.e., provinces cannot take federal monies intended for recipients of social assistance and spend it on other, unrelated areas) (CAP ss. 4, 6(3) and 7);
6) until 1990, received cost-sharing from the federal government for 50% of eligible social-assistance expenditures (CAP s. 5). Since 1990, the provinces of Alberta, British Columbia and Ontario were limited to a maximum of a 5% increase in cost-sharing . The net effect is that as of 1993, the province of British Columbia received only 34% of its eligible expenses from the federal government. Alberta continued to receive 50% (because of a net reduction in expenditures on social assistance by that province) and the province of Ontario was reimbursed for 29% of its eligible costs (CAP s. 5.1)
- see Government of Canada statements
in E/C.12/1993/SR.6 at paras. 39 & 61
- Again, all of the beneficial standards or 'rights' referred to in points 1-4 above were under CAP, fully enforceable by individual recipients of social assistance (Finlay, supra).
The Canada Health and Social Transfer (Bill C-76)
- Bill C-76 provides that the rights and protections in CAP will cease to be effective on April 1, 1996.
- In place of CAP, the federal government will lump together funding which, under CAP, had been spent on social security into a new block-fund to be called the Canada Health and Social Transfer (the "CHST"). The new block-fund transfer to the provinces is intended to be for provincial health, post-secondary education and social assistance programs.
- With the benefit of the above review of the rights and protections provided by CAP to people living in poverty, the change to the CHST reveals the following stark reversals:
re Federal financing of social assistance programs
1) Federal funding to the provinces will no longer be open-ended and cost-shared on a proportionate basis. Rather, the CHST will be a set and fixed amount - regardless of any cyclical increase in demand for social assistance which the provinces may experience;
2) Bill C-76 provides that the amount of the CHST will be 7 billion dollars less than what would have been transferred to the provinces under the existing programs by fiscal year 1997-98 (i.e., a 15% reduction).
see article 48 in Bill C-76 and "Budget Speech" extracts at pp. 19 and 33
3) Moreover, Bill C-76 contains absolutely no requirement that CHST monies, intended for social programs - including social assistance - are actually spent on social assistance for people in need. Under the CHST, provinces will be entirely free to spend the money on whatever they wish
Rights and Protections for People In Need
4) Bill C-76 states that the CHST will be without minimal standards or conditions which provincial social assistance programs will need to comply with (with the sole exception that provinces will not be permitted to require a period of residence in a province as a condition of eligibility).
- Point 4 immediately above is the crux of the change from the historic rights which people enjoyed - and could enforce - under CAP.
- Shortly put, Bill C-76 revokes all the rights and protections described in paragraph 8 above.
- By repealing CAP, Bill C-76, in one foul swoop, produces a total loss of federal power to ensure that provinces spend any part of CHST monies on social assistance and, for the same reason, it dismantles the CAP guaranteed rights and protections. This is the case because any provinces which legislatively chooses (and some have already started) to disregard the substantive rights in CAP will, under Bill C-76, do so with impunity. Stated differently, under Bill C-76, the people of Canada will lose the overarching substantive rights and procedural protections contained in CAP and which provinces were compelled to respect.
- In concrete terms, if Bill C-76 is enacted, people in poverty will no longer be guaranteed by federal law that they will be eligible for assistance - whatever the cause of their need; they will lose the federal guarantee of their right to initiate social assistance appeals. Similarly, their current right (in CAP) to refuse 'workfare' (the requirement to perform work as a condition of receiving assistance) will be lost.
- Interestingly, even under the block-funded CHST, Bill C-76 expressly maintains the federally imposed standards of the Canada Health Act which provincial health care programs will continue to be required to meet. Thus, deficit-reduction alone is not seen as justifying the scrapping of the popular national standards in the health care field - in stark contrast to the almost total loss of rights for social assistance recipients.
Bill C-76, article 48
- In announcing the CHST in his "Budget Speech", the Minister of Finance stated that "transfers under the Canada Assistance Plan come with a lot of unnecessary strings attached [i.e., the conditions or 'rights' available to people, which are imposed on provinces]... in short, the cost-sharing approach of the past no longer helps the provinces..."
"Budget Speech" extracts at p. 17
- In scrapping CAP, clearly no regard has been had to whether the rights in CAP helped the people.
The Implications of Bill C-76 for Canada's Compliance with the Covenant
- The legislative reversals in Bill C-76 clearly represent "deliberately retrogressive measures" taken by the government of Canada despite articles 2, 6, 9 and 11 of the covenant.
General Comment 3 (Fifth Session, 1990)
E/1991/23, paragraph 9
- In addition to the harsh reduction in federal cost-sharing for social assistance programs, (a step which is, in itself, inherently retrogressive and contrary to the intention of General Comment No. 3, paragraph 9), the loss of CAP means the loss of a federal guarantee to substantive and procedural rights (referred to in para. 8 above) and, as importantly, the loss of federally ensured administrative and judicial remedies. Again, the loss of such protections is wholly inconsistent with General Comment No. 3, paragraphs 5 and 6.
- Seen in this light, the sweeping setbacks contained in Bill C-76 amount to a double contravention of the Covenant: a flagrant disregard of the Committee's comments regarding "deliberately retrogressive measures" as well as a complete loss of the federal legislative guarantee regarding the availability of administrative and judicial enforcement processes.
Summary
- By virtue of Bill C-76, Canadians will be exposed to a cruel step backwards vis-a-vis the realization of their rights under the Covenant.
- It is submitted that the oft-cited reliance by the government of Canada on CAP in the reports it has filed since 1980 when combined with the Committee's comments on the importance of domestic enforcement mechanisms operate to estop Canada from being allowed to ratchet downward the realization and implementation of the Covenant's rights and protections.
Relief Requested
- Given Canada's flagrant disregard for the Committee's suggestions and recommendations issued in 1993 (particulars are contained in the letter to Prof. Alston dated April 25, 1995 - TAB I - Books of Documents);
- And given the clearly defined route which the government of Canada has embarked upon (see the extracts from the "Budget Speech" in the Book of Documents);
- The Canadian Non-Governmental Organizations humbly ask the Committee to: