* The author thanks Vincent Calderhead, Vince Gogolek, Martha Jackman, David Porter, Mary Truemner and David Wiseman for helpful comments and/or editorial assistance.

Over the last few years, a consensus has emerged among human rights treaty monitoring bodies reviewing Canada’s compliance with its international human rights obligations that there is a serious and growing gap between the human rights to which Canada has committed under international law and the domestic policies and actions of governments in Canada. Ironically, it is primarily in the social and economic domain that the country at the top of the United Nations Development Programme’s Human Development Index has been found to be violating the fundamental human rights of its most vulnerable citizens. The emerging consensus at the international level is that poverty among vulnerable groups in Canada constitutes a serious breach of human rights obligations. A more major concern in the long run is that our approach to human rights in Canada leaves us incapable of addressing it.

Poverty has been defined in Canadian political and judicial culture as a problem of social policy within the preserve of legislatures and social policy advisors to solve. It has not, as yet, been incorporated into our domestic human rights framework - primarily defined by the Canadian Charter of Rights and Freedoms (the Charter) and human rights legislation - as a human rights issue of the highest order. That, however, is how it is articulated in international human rights law emerging from the Universal Declaration of Human Rights, which lists a number of social and economic rights among its fundamental human rights, including the right to an adequate standard of living, including food, clothing and housing.

The exclusion of issues of poverty among vulnerable groups from domestic rights adjudication has created a growing gulf between Canada’s human rights culture and the international human rights movement. Further, the inability or unwillingness of our courts and human rights institutions to address poverty seems to have created a political and cultural paralysis in the face of levels of homelessness and destitution which most agree are incompatible with the fundamental values of Canadian society. Contrary to what critics of rights strategies suggest, the exclusion of issues of poverty from our domestic human rights and constitutional framework has not meant that poor people rely on legislatures and parliament rather than on courts and human rights institutions to have their concerns addressed. Rather, the exclusion of their fundamental human rights from Canada’s domestic rights framework has meant that poor people’s rights have been increasingly marginalized in both political and judicial fora, falling between the institutional cracks of our relatively new constitutional democracy.

Directions from international human rights treaty monitoring bodies have been clear and unequivocal. Courts in Canada need to interpret and apply the rights in the Charter in a manner that recognizes the interdependence and indivisibility of all human rights and to bring within its scope critical issues of poverty and homelessness among vulnerable groups. This means that social and economic rights such as the right to an adequate standard of living, including adequate food, clothing and housing, must be recognized as rights which can be claimed and adjudicated by way of existing Charter rights, as well as through other areas of law. It also means recognizing the important place those living in poverty must play in bringing social and economic rights claims forward, challenging the systemic causes of poverty and claiming their constitutional rights to dignity, equality and security. Is such a reorientation of the scope of Charter rights possible in Canada? The present article will argue that emerging Charter and international human rights jurisprudence makes it a fundamental responsibility of courts and tribunals to address social and economic rights claims as legitimate Charter claims.

Bringing poverty issues into our domestic human rights framework in Canada will require more than a refined approach to Charter rights, of course. As Craig Scott has observed , a "judicial transformation" which absorbs international human rights norms must be part of a broader transformation of Canadian politics and human rights culture. There are other avenues of important legislative and institutional reform which must be pursued along with a new approach to Charter rights. International human rights treaty monitoring bodies have recommended adding social and economic rights to the Canadian Human Rights Act (CHRA) as well as to provincial human rights legislation. This recommendation has been endorsed by the Canadian Human Rights Commission and the majority of human rights groups across Canada. A panel charged with reviewing the CHRA, headed by the Honourable Gérard La Forest, former Justice of the Supreme Court of Canada, has been holding consultations with respect to, among other things, "the adequacy of the scope and jurisdiction of the Act." Public consultations across Canada have discovered an emerging domestic consensus parallel to the international consensus, that traditional approaches to human rights in Canada which exclude poverty and social and economic rights must be reformed. There is broad support for a new vision of human rights which affirms the connection between domestic and international human rights protections and includes social and economic rights in the CHRA.

A previous article, written by Martha Jackman and myself, outlines proposals for the inclusion of social and economic rights within an amended CHRA. We argue there for an integrated approach to the interpretation of human rights legislation and the Charter which would affirm the fundamental place of social and economic rights in both, and which would make the provisions of international human rights law their common reference point.

In the present article, I revisit the issue of claiming and adjudicating social and economic rights under the Charter. I review the emerging international human rights jurisprudence and the concerns and recommendations of U. N. human rights treaty monitoring bodies with respect to Canada, considering how these can be integrated with domestic Charter jurisprudence. It is in the context of Charter interpretation that the courts have considered important issues related to the adjudication of social and economic rights claims - the relationship between domestic and international human rights law; the role of courts and tribunals in adjudicating "positive rights" claims; judicial competence to adjudicate claims in the social and economic domain; and the distinction between social policy issues and human rights issues which has tended to exclude poverty from the scope of human rights and Charter adjudication in Canada. These are the issues which we must re-think in Canada if we are to bring poverty issues properly within the scope of domestic approaches to human rights.

In part [I], I consider how emerging trends in international human rights law have come to give a more prominent place to social and economic rights violations in affluent countries such as Canada than was previously the case. I consider how the review procedures at the Committee on Economic, Social and Cultural Rights have created a new understanding of how these rights need more than "expert review" - how they need adjudicative procedures that guarantee effective participation by those whose rights are at stake.

In part [II], I review the consensus among the most prominent U.N. human rights treaty monitoring bodies about the most critical substantive violations of human rights in Canada. I show that these are primarily linked with poverty and the failure of governments in Canada to meet substantive obligations toward vulnerable groups. I consider what this emerging human rights framework for poverty issues at the international level has meant to poor people in Canada. I contrast their experience of the human rights framework at the international level with the reception of the U.N. treaty monitoring bodies’ reports back in Canada, where they have been generally allocated to the field of "social policy review" rather than being understood as findings of violations of fundamental human rights.

In part [III], I consider the reviews by the treaty monitoring bodies of how well Canada’s domestic legal order conforms with international human rights obligations to provide effective domestic remedies to violations of human rights, and their recommendations as to what we need to do to transform our domestic approach to human rights into one which is consistent with international human rights norms.

In part [IV], I consider how the recommendations for reorientation of Charter interpretation fit with developments in Charter jurisprudence. I argue that the recommendations of treaty monitoring bodies for more effective adjudication of social and economic rights by way of the Charter are consistent with recent Supreme Court jurisprudence. I argue that incorporating social and economic rights into Charter interpretation is not a matter of dramatically expanding the role of tribunals and courts in Canada. Rather, it is a matter of better focusing their gaze on the areas where both the international community and Canadians themselves find the most critical human rights issues and of applying recognized principles of Charter interpretation to the Charter claims of poor people to dignity, security and equality.

[I]. The Emergence of More Effective Social and Economic Rights Review of Canada within the U.N. Human Rights Treaty Monitoring System

The fact that Canada is no longer seen by the international human rights community as the "promised land" of human rights compliance has only recently become apparent. The Canadian government has still not fully comprehended what happened or why. How did Canada, a darling of the international human rights community, come to be identified as a violator of human rights in reviews of its compliance with international human rights treaties?

The most obvious cause for the emerging critique, of course, is what has been occurring domestically within Canadian social policy. The 1990’s saw a systematic attack on the protection of and respect for social and economic rights within many of the world’s most affluent countries and within new global economic arrangements. These retrogressive developments have been particularly dramatic in Canada. The treaty monitoring reviews of Canada in the 1990’s found clear evidence of a dramatic erosion of both legislative and programmatic adherence to social entitlements linked to the right to an adequate standard of living in Canada.

Canada has been at the leading edge of, and much affected by, global trends toward free trade and government withdrawals from previously assumed roles in protecting social and economic rights. Unlike the U.S., however, which leads these global economic developments, we have ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) and thus have unequivocally affirmed social and economic rights under international human rights law. On the other hand, our approach to domestic human rights protections has not incorporated this fundamental difference and has tended to conform more to a U.S. style rights regime in which social and economic rights have been accorded little recognition. Non-governmental organizations (NGOs) representing poor people in Canada have thus turned increasingly to international human rights law and its review procedures for a framework of human rights which more closely conforms with what poor people consider fundamental human rights protections. Here is a human rights framework that is capable of acknowledging the serious attack on fundamental rights that has accompanied the dramatic political and economic changes of recent years.

The reviews of Canada for compliance with U.N. human rights treaties have thus become important occasions for confronting the growing gap between the international human rights commitments of affluent countries like Canada (the majority, unlike the U.S., recognize social and economic rights under international law) and their domestic performance. These reviews have also played an important part in the development of the jurisprudence of the treaty monitoring bodies as they have been challenged to come to grips with emerging problems in Canada and elsewhere linked with the new global developments threatening social and economic rights. Two developments in particular were important in the Canadian context: the development of an "adjudicative" model of assessing compliance with social and economic rights, and the development of a more rigorous approach to the obligations surrounding the "progressive realization" of social and economic rights in affluent countries.

While poor people in Canada now place considerable weight on the protections of social and economic rights in international human rights law, this was not always the case. It is at the international level, of course, that the bifurcation of social and economic rights from civil and political rights first occurred. Cold war rhetoric and an aggressive campaign by the U.S. against the recognition of social and economic rights led to the separation of what was originally a unified conception of rights in the Universal Declaration of Human Rights into two separate Covenants, the ICESCR and the International Covenant on Civil and Political Rights (ICCPR). Both Covenants affirm, in their preambles, the interdependence of civil, political, economic, social and cultural rights and there is no explicit differentiation in either Covenant with respect to whether the rights they contain are amenable to adjudication. Nevertheless, the two sets of rights were often distinguished in the first years of the Covenants on the basis that social and economic rights were somehow not amenable to adjudication, findings of violations or effective legal remedies.

An Optional Protocol establishing an individual complaints procedure for civil and political rights was adopted in 1966 along with the ICCPR and came into force with the Covenant in 1976. No similar provision was adopted for the ICESCR. The U.N. Human Rights Committee (HRC) was created under the ICCPR to receive and review periodic reports from State parties and also to receive and decide on complaints. The review of compliance with the ICESCR, on the other hand, was assigned to a variety of ineffective expert "working groups" appointed by the U.N. Economic and Social Council in the early years of the Covenant. The result of this institutional differentiation between the two Covenants at the international level was that for many years the United Nations treaty monitoring system provided an evolving experience and jurisprudence on the adjudication of civil and political rights but provided nothing comparable for social and economic rights.

Even after the formation of the current U.N. Committee on Economic Social and Cultural Rights (CESCR), to supervises state compliance with the ICESCR, social and economic rights continued to be weighed down by an exclusive reliance on "expert review" rather than adjudication. State parties submitted periodic reports at intervals of five years or so, and the Committee of 18 experts then engaged in a dialogue with delegations of the State parties with respect to compliance with the Covenant. The dialogue was predictably stultified. Governments like Canada submitted lengthy documentation of all of their accomplishments and the Committee was hamstrung by the one sided nature of the information before it. The first periodic review of Canada by the new CESCR in 1988 had little impact domestically.

In 1993, with Canada’s Second Periodic Report coming up for review, Canadian NGOs decided to challenge the "expert review" paradigm. Despite advice from international NGOs that we would never succeed, the Charter Committee on Poverty Issues (CCPI) petitioned the Committee for a new procedure through which it would hear oral submissions from domestic NGOs as part of the consideration of States’ periodic reports. The request, surprisingly enough, caught the imagination of the Chairperson, Philip Alston, who used the request to provoke a review of Committee procedures. With Canada’s somewhat apprehensive agreement, the Committee decided to set aside time at the beginning of the session for NGO presentations relating to periodic reports. As the Committee notes on its official "Fact Sheet", this was the first time a human rights treaty monitoring body at the United Nations permitted domestic NGOs to appear in the context of periodic reviews of State party compliance and has since been used by NGOs in many other countries as a critical means for bringing to light violations of social and economic rights.

The result of the CESCR’s innovation in 1993 is that economic, social and cultural rights became subject to what international human rights scholar Mathew Craven calls an "unofficial petition procedure." The submission and review of State party reports, previously the essence of the review process, is now only the beginning of a review procedure that is fundamentally adjudicative in nature. Ironically, the absence of an optional protocol for individual complaints of violations of social and economic rights has led the CESCR to lead the way in developing an adjudicative model for systemic social and economic rights claims.

Rather than presuming to an expertise in the complex social and economic issues in each country under review, the CESCR has recognized that it functions most competently when it facilitates a "hearing" - considering allegations of non-compliance advanced by domestic groups and then considering "responses" from governments. Admittedly, this is not always possible. It depends on the ability of domestic NGOs to participate effectively in the review process. This requires, at a minimum, resources, an ability to leave the country and freedom to participate without reprisals from government. Where such participation is possible, however, the Committee relies on the NGOs to identify the most critical issues regarding the implementation of the Covenant and to provide the necessary background for members to put these issues to government delegates for a response. NGO briefs, to be effective, need to provide well documented evidence in the nature of "amicus briefs" filed in domestic judicial proceedings. In cases where domestic NGOs are not able to participate, international human rights NGOs will frequently step in.

Under the CESCR’s procedure, the Periodic Report is required to provide evidence on particular issues of compliance, for example, the availability of domestic legal remedies and the situation of identified vulnerable groups. After the Report has been received and a review scheduled, a pre-sessional working group convenes six months prior to the review to consider the report and develop a list of issues or questions to send to the State party. This is one of the most important and frequently overlooked components of the Committee review process for both NGOs and governments - analogous to a pre-hearing in a judicial setting to identify critical issues in dispute. NGOs are permitted brief oral submissions and may submit written briefs to the "pre-sessional working group". Without effective NGO submissions to the Pre-Sessional Working Group the Committee "experts" would have little sense of the primary issues of importance. The list of issues also provides governments with a first opportunity to respond, in writing, to concerns or allegations of non-compliance. This is the government’s opportunity to put its pleadings "on the record."

Five months or so after the list of issues is sent to the government, the actual review occurs before the Committee. The review affords NGOs an opportunity to appear briefly before the Committee and to present by way of written and oral submissions their concerns and evidence with respect to non-compliance with the Covenant. The Committee ensures that copies of all NGO submissions are provided to the government delegation in advance of its appearance before the Committee and government representatives attend the NGO oral submissions. The Committee’s questioning of the government delegation focuses on concerns or questions raised in the government’s response to the list of issues, concerns raised by NGOs and concerns of Committee members themselves. Concluding Observations are then prepared by the Committee in closed door sessions, based on the outcome of the review process. These Observations will not comment on any issue which has not properly been put to the government for a response.

Lacking a jurisprudence arising from an individual complaints procedure but nevertheless required to issue authoritative considerations of compliance with fundamental human rights, the Committee has adopted an adjudicative framework that has affected both the competency and legitimacy of its review process. Experts from 18 different countries sitting as part-time Committee members would have little competence to assess compliance with social and economic rights in Canada and other countries without the participatory, adjudicative procedures the CESCR has developed. Indeed, many of the members of the Committee are legal scholars or appellate judges in their own countries, so their expertise is less a social policy expertise than an adjudicative one.

At the same time, the development of an adjudicative process has given more legitimacy to the Committee’s human rights review as well. Democratic societies are properly cautious about authorizing experts to make findings of violations of human rights outside the context of participatory rights and procedural fairness to parties concerned - both the constituencies whose rights may have been infringed and those accused of infringing them. To the extent that the public and parliament see a social and economic rights review process, either at a domestic or international level, as a group of "experts" trying to dictate social policy to Canadians, social and economic rights will be seen as illegitimate incursions into democratic decision-making. It is only if there is a fair and competent adjudicative process and full participation from interested parties and constituencies that the public and parliamentarians can legitimately be asked to incorporate findings of human rights infringements into the democratic process.

In response to support from the Vienna World Conference on Human Rights for continued work by the CESCR in developing an optional protocol for petitions under the Covenant, the Committee has adopted a draft. It has not as yet received necessary support from governments. Nevertheless, the transformation of the CESCR in the last decade from a largely irrelevant expert review mechanism to an influential human rights adjudication procedure has been of fundamental importance in allowing the international human rights community to leave behind the sterile debates about the justiciability of social and economic rights which dominated the earlier years. The CESCR has developed a practice which establishes that these rights can be adjudicated with both competency and legitimacy.

(B). Adjudicating Progressive Realization and the Allocation of Resources at the CESCR

As well as benefiting from an institutional shift toward an adjudication model of social and economic rights review at the CESCR, constituencies seeking more effective adjudication of social and economic rights in Canada also benefited during the 1990’s from a new willingness on the part of the CESCR to subject affluent countries to a more meaningful review than had occurred in previous years.

There has traditionally been a strong institutional bias within the U.N. human rights system in favour of U.S. and northern rights paradigms. Many of the international human rights NGOs are funded by U.S. based charities to do work in developing countries, so the prevailing model is one of "exporting" U.S. based "expertise" in human rights to underdeveloped countries. There has been little consideration given to the need to identify violations of fundamental human rights in countries like the U.S. and Canada. It remains very difficult to get funding from northern based human rights funders to apply international human rights law to northern countries themselves.

This tendency to focus on human rights violations within developing rather than affluent countries dominated the early years of social and economic rights jurisprudence at the international level. A primary focus of the debate about the status and justiciability of social and economic rights was on the concept of "progressive realization" in article 2(1) of the ICESCR, which sets out the government’s responsibilities in the following terms:

The concept of progressive realization and the standard of "the maximum of available resources" is articulated explicitly in international human rights instruments only with respect to economic, social and cultural rights. For those opposed to recognizing social and economic rights, this was an indicator that they were too vague and undefined to be judicially enforced.

In response to this critique, scholars defending social and economic rights tended to focus in the early years on the aspects of these rights that would conform with more traditional ideas of "universal application" - the obligations which were independent of progressive realization, subject to immediate application and could thus be equally applied to all countries, regardless of resources. There was thus a focus on the "minimum core" obligations required for compliance with social and economic rights. This kind of "universality", however, is universal in name only. Naturally, affluent countries tended to meet the minimum core obligations while poor countries were more likely to violate them.

By the early 1990’s however, members of the CESCR, and other international human rights experts, began to consider more carefully standards that would apply to countries with the resources necessary to move well beyond these "minimums." While continuing to identify issues with respect to minimum core content of rights, the CESCR’s General Comment No. 3: The nature of state parties’ obligations, adopted in 1990, places more weight on how compliance with progressive realization can be reviewed. The Committee states that the notion of progressive realization places serious obligations on governments to demonstrate that they have taken steps that are "deliberate, concrete and targeted as clearly as possible towards meeting the obligations" and that they have an obligation "to move as expeditiously and effectively as possible towards that goal." Significantly for what would be occurring in many affluent countries in subsequent years, the Committee further held that "deliberately retrogressive measures" or backward movement in the protection of social and economic rights "would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum of available resources."

The following year, the CESCR revised its Reporting Guidelines to place greater emphasis on the obligation to report meaningful evidence with respect to available resources, (such as per capita gross national product, external debt and distribution of income), progressive realization (showing changes in living conditions and programme commitments over time) and the situation of the poorest households and vulnerable groups. The new focus on available economic resources, progressive improvement and the position of "vulnerable and disadvantaged groups" set the stage for a more rigorous assessment of whether affluent countries were meeting their obligations under the Covenant. With the highest Gross Domestic Product per capita of the major industrialized countries that had ratified the ICESCR, Canada would be scrutinized to determine if it was properly using its available resources to meet its commitments to move toward the fulfillment of social and economic rights and to address the situation of the most disadvantaged groups.

Canada’s first harsh human rights review before a United Nations treaty monitoring body occurred at the CESCR in 1993, at its Second Periodic Review under the ICESCR. The Committee’s Concluding Observations on Canada received considerable attention internationally as well as domestically because they indicated a new resolve by the CESCR to hold affluent countries accountable to standards of progressive realization. The Committee focused particularly on Canada’s apparent non-compliance with article 11 of the Covenant "the right to an adequate standard of living, including adequate food, clothing and housing" and addressed the obligations under article 2 of the Covenant to apply the "maximum of available resources" to the progressive realization of this right. It strongly condemned the level and severity of poverty among vulnerable groups, particularly single mothers, the increasing reliance on foodbanks, the gap between social assistance rates and the poverty line and the minimal allocation of resources to address homelessness. A new focus on the obligation to apply available resources to protect the interests of vulnerable groups and to move forward in addressing problems of poverty was prominent:

If failure to make "measurable progress" in alleviating poverty among vulnerable groups was the prominent theme in Canada’s 1993 review, "retrogressive measures" was the theme at its next review before the CESCR in November, 1998. After five years of robust economic growth, the problems that had been identified in 1993 had grown considerably worse, largely through the predictable results of deliberate legislative and policy changes. The Committee noted that the Federal Government and the provinces had implemented dramatic cuts to social programmes with severe consequences for the most vulnerable groups, particularly women. Further, the Federal Government had removed a principle feature of the protection of the right to an adequate standard of living in Canada by revoking the Canada Assistance Plan (CAP).

The Committee observed that with the elimination of national standards in CAP, provinces had proceeded to institute drastic cuts to social assistance levels which, in 1993, had been criticized for already being so far below the poverty line:

The CESCR issued an extensive list of other areas in which Canada appeared to have violated the ICESCR. There had been no progress made or commitment shown to address the most serious issues of disadvantage, such as alleviating social and economic deprivation among Aboriginal people or in addressing the plight of refugees denied access to social programmes. The discriminatory "clawback" of the National Child Benefit Supplement meant that the major initiative to address child poverty provided no benefit for families on social assistance in most provinces. There was evidence of backward movement in many of the areas such as restrictions on eligibility for unemployment insurance, the implementation of workfare and other discriminatory provisions against welfare recipients, programme cuts which discriminated against women and increased reliance on food banks. The Committee was "gravely concerned that such a wealthy country as Canada has allowed the problem of homelessness and inadequate housing to grow to such proportions that the mayors of Canada's 10 largest cities have now declared homelessness a national disaster," noting that "provincial social assistance rates and other income assistance measures have clearly not been adequate to cover rental costs of the poor."

The 1998 Concluding Observations of the CESCR, like those it issued in 1993 were the subject of extensive media coverage and heated parliamentary debate. On both occasions, the Government of Canada took the "low road" in response to the criticism. After years of promoting the U.N. treaty monitoring system abroad and urging compliance with international human rights in other countries, Canada’s reaction to being on the receiving end of criticism by a treaty monitoring body was to attack the credibility of the review. Politicians and government officials, still living largely within the social and economic rights paradigm of the previous decade, found it outrageous that Canada should be condemned for violating social and economic rights by a Committee including experts from southern countries where levels of extreme poverty made Canada’s problems, in their view, insignificant.

Subsequent reviews by other U.N. human rights treaty monitoring bodies, however, suggested that Canada’s problem was not simply a strained relationship with the CESCR and with evolving jurisprudence in the area of social and economic rights. Policies which exacerbated poverty among disadvantaged groups in Canada were increasingly seen at the international level not simply as violations of social and economic rights, but also as substantive violations of equality rights and other civil and political rights.

Canada’s 1997 review under the Convention on the Elimination of All Forms of Discrimination Against Women confirmed a primary concern of the CESCR in the context of women’s human rights. The Committee on the Elimination of Discrimination Against Women (CEDAW), which monitors compliance with the Convention, expressed concern about "the deepening poverty among women, particularly among single mothers, aggravated by the withdrawal, modification or weakening of social assistance programmes." The Committee recommended that "the Government address urgently the factors responsible for increasing poverty among women and especially women single parents and that it develop programmes and policies to combat such poverty." Responding to the social assistance cut-backs, it recommended that "social assistance programmes directed at women be restored to an adequate level."

The Committee addressed itself to the discrepancy between Canada’s positive role at the international level in promoting the human rights of women and domestic policies which reinforced the erosion of women’s social and economic rights both within Canada and elsewhere:

The concern of CEDAW about the discriminatory effect of social programme reductions on women was reiterated by the U.N. Human Rights Committee (HRC) in its Fifth Periodic Review of Canada under the ICCPR in March, 1999. The HRC echoed the concerns of CEDAW and CESCR about the extraordinary extent of poverty among women with children in Canada. It found that social programme cuts and other government action responsible for perpetuating such poverty in Canada constitute discrimination against women as well as a failure to provide necessary protections to which children are entitled under the ICCPR:

The HRC also joined the CESCR in condemning the discriminatory clawback from families on social assistance of the National Child Benefit Supplement, noting that this "may lead to non-compliance with article 24 of the Covenant." Article 24 guarantees to every child, without discrimination "the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State." Further, the HRC linked homelessness to the guarantee of the right to life under article 6 of the Covenant:

While the link between homelessness and the right to life may seem obvious, this was the first time the HRC found that a failure to take "positive measures" to address homelessness may be found to violate the right to life under the ICCPR - at least in a country which so obviously has the resources to ensure that everyone has access to adequate housing.

In the past, the HRC has tended to leave poverty issues to the CESCR. Its 1999 review of Canada broke new ground by focusing on the extent to which increasing poverty among disadvantaged groups in so affluent a country as Canada engages not only social and economic but also civil and political rights. The HRC focused on many of the same issues as those addressed by its ICESCR counterpart and derived, from civil and political rights, similar substantive obligations to address poverty among disadvantaged groups. While not recognized explicitly in the Concluding Observations, the availability of resources on the part of Canada to remedy these problems is clearly a consideration. Even without express recognition of the right to an adequate standard of living, the ICCPR requires positive measures to address homelessness in order to protect the right to life, positive measures to address child poverty in order to protect the rights of children, and positive measures to maintain adequate social programmes in order to ensure women’s equality rights. Compliance with these substantive obligations can only be assessed in relation to competing needs and available resources.

In the context of the abundance of resources available to governments in Canada and the absence of competing needs of the sort that are faced by more impoverished countries, homelessness and poverty among disadvantaged groups in Canada is now seen at the international level as clear evidence of non-compliance with the broad spectrum of fundamental human rights recognized in international human rights law ratified by Canada.

Within an adjudicative model, and drawing both on social and economic and on civil and political rights, we have seen emerging an increasing international focus on Canada’s non-compliance with substantive obligations to address poverty and social disadvantage among vulnerable groups. Poor people in Canada have found, within the U.N. treaty monitoring review process, a venue in which their fundamental human rights issues can be adjudicated. But there are serious limitations to this venue. The reviews occur, at best, once every five years, outside of Canada. The most recent reviews, as noted by Craig Scott, raise a critical question. How do we incorporate this type of adjudication of the rights of poor people in Canada into domestic human rights adjudication?

As noted above, Canadian political and human rights culture has tended to assign poverty issues to the social policy realm and to exclude them from the domain of human rights. Domestic response to the findings of human rights treaty monitoring bodies with respect to poverty and homelessness in Canada have similarly tended to focus on the social policy implications of these findings rather than on their implications for human rights in Canada. The various Committees’ Concluding Observations have been mistaken by the media, the courts, the government and by others as a kind of expert U.N. "Report" assessing how well Canada is measuring up to social policy norms and standards. While the public attention to important policy issues that has been generated by the Concluding Observations is not without benefit, that is not why poor people and human rights advocates in Canada have turned to these procedures and it does not capture what the experience at the international level has been all about, either subjectively or objectively.

Those of us who have attended the reviews, particularly by the CESCR, have discussed among ourselves a shared experience of the impact of seeing Canada through the glass of an emerging international human rights framework. Low income participants in particular, have described a sense of being "heard" for the first time. The realities of poverty and homeless in Canada come into a sharper focus even for those who have lived them, through a human rights scope that is not yet available at home. It is hard to imagine that Canada’s human rights issues are very urgent when other NGOs are working on the AIDS epidemic in Africa and the devastation of Hurricane Mitch in Honduras and Nicaragua. Yet these same NGOs are astounded to hear of homelessness and foodbanks in Canada. Similarly, Committee members who deal with problems of extreme poverty in other countries do not find what is happening in Canada in any way insignificant. On the contrary, they have become increasingly frustrated with the smug complacency of the Canadian delegation precisely because the violations of human rights in Canada could so easily be remedied. In Canada, particularly in the late 1990's, poverty and homelessness were clearly the result of legislative choices by governments.

As Sarah Sharpe, a low income advocate and President of the National Anti-Poverty Organization wrote of her experience at the CESCR in Geneva in 1993:

Government "choices" in affluent countries which engage fundamental values of dignity, security and equality by ignoring or exacerbating poverty among vulnerable groups are seen sharply in this light to go beyond social policy and to enter very clearly into the domain of human rights, requiring effective human rights adjudication and review.

U.N. human rights treaty monitoring reviews and adjudication procedures are not social policy reviews but consideration of compliance with fundamental human rights assessed in the context of the resources available to fulfill them. They are supplementary to, and cannot replace domestic legal protections of these rights. As the CESCR notes in its General Comment No. 9: The Domestic Application of the Covenant:

A primary focus of treaty monitoring review and recommendations must therefore be on the extent to which international human rights are protected domestically. In the next part I describe the assessments made by the CESCR as to what types of human rights protections we lack in Canada and what we need to do to transform our domestic approach into one which is consistent with international human rights norms. In the parlance of the CESCR, the issue of equipping the domestic human rights system to address identified violations of international human rights is the obligation to provide effective domestic remedies. For poor people in Canada, it is a matter of "bringing home" systemic human rights claims that in the 1990’s only received fair hearings in Geneva and New York.

For both the CESCR and the HRC, the growing crisis in human rights in Canada is not defined by the substantive violations alone. The increasing problems of poverty amidst affluence suggest a fundamental flaw not only in the prevailing political and economic paradigm, but also in the ruling human rights paradigm. Canada’s domestic approach to the protection of human rights has been seen by the treaty monitoring bodies as increasingly incapable of addressing the most critical human rights issues in the social and economic domain.

The CESCR has paid particular attention to the discrepancy between the rights which Canada recognizes and promotes internationally and the approach that has been taken to the interpretation of the Charter. At both its 1993 and 1998 reviews, the Committee received extensive information on Charter jurisprudence from the Government and NGO submissions. The Committee focused on two rights of particular relevance for the protection of social and economic rights: "security of the person" and "equality".

(A). 1993 CESCR Review of Remedies under the Charter

In 1993 the Committee gave positive recognition to two cases dealing with equality rights under section 15 of the Charter - the Supreme Court’s decision in Schachter v. Canada to extend parental benefits and the decision of the Nova Scotia Court of Appeal in Dartmouth/Halifax County Regional Housing Authority v. Sparks to extend security of tenure to residents of public housing. These types of positive rights remedies were seen to have provided effective remedies to Covenant violations, since the ICESCR requires the protection of security of tenure and the provision of adequate maternity and parental benefits and further requires that these rights be enjoyed without discrimination.

The Committee was also encouraged by early Charter jurisprudence from the Supreme Court of Canada suggesting a fusing of Charter interpretation with international human rights norms, including social and economic rights. It took particular note of the decision in Slaight Communications v. Davidson in which Chief Justice Dickson, writing for the majority of the Supreme Court, had invoked the right to work under the ICESCR as an aid to interpreting the Charter, affirming in this context that "the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada ratified."

With respect to section 7 of the Charter and the right to security of the person, the Committee considered the decision of the Supreme Court of Canada in Irwin Toy v. Attorney General of Quebec. In that decision, the Court stated that it would be "precipitous" to exclude, "at this early moment in the history of Charter interpretation," such economic rights, "included in various international covenants, as rights to social security, equal pay for equal work, adequate food, clothing and shelter." In light of these developments in Charter interpretation, the Committee included the following in its Concluding Observations, under "Positive aspects":

On the other hand, NGO submissions documented the pleadings of provincial governments and judicial reasoning in a number of lower court Charter cases in which low income claimants were deprived of legal remedies to evident social and economic rights violations. In Fernandes v. Director of Social Services (Winnipeg Central), for example, a permanently disabled man suffering from muscular atrophy with progressive respiratory failure had appealed a denial of special assistance from social services to cover the cost of necessary attendant care. Without it, he would be forced to abandon his home to live permanently in a hospital. He argued that the right to security of the person and the right to equality ought to be interpreted consistently with Canada’s international human rights obligations to ensure an adequate standard of living. In the appeal, the Attorney General for Manitoba took the position that the Charter does not protect economic rights under section 7 "with the possible exception of extreme cases where needs fundamental to human life or survival are involved" and that the right to equality applies only to discriminatory government action, not to disadvantage that exists independently of government action. The Court of Appeal in Manitoba agreed that the interests raised in the appeal were outside the scope of sections 7 and 15 of the Charter and dismissed the claim.

Similarly, in Conrad v. County of Halifax, in which a single mother had been denied interim assistance to cover basic necessities pending an appeal of a termination of assistance, the Attorney General for Nova Scotia had argued that the right to security of the person confers no right to be "free from poverty and the physical, emotional and social consequences of that condition." Both the trial court and the Court of Appeal agreed that the Charter cannot provide protection of economic interests of this sort.

The Committee reviewed at that time the trial court decision in the case of Louise Gosselin (who, at the time of writing, seven years later, awaits a decision on a leave application at the Supreme Court of Canada). Ms. Gosselin’s social assistance benefit had been reduced to only $170 per month, 20% of the poverty line for that year, on the basis that she was a single employable person between the ages of 18 and 30. Her claim was based not only on sections 7 and 15 of the Canadian Charter, but also relied on section 45 of the Quebec Charter of Human Rights and Freedoms (the Quebec Charter). Though not subject to the complaints procedure under the Quebec Charter, section 45, part of the section on "social and economic rights", guarantees to every person in need "the right for himself [herself] and his [her] family, to measures of financial assistance and to social measures provided for by law, susceptible of ensuring such person an acceptable standard of living (niveau de vie décent)." The court found that there is no justiciable right to adequate financial assistance either under the Quebec Charter or the Canadian Charter. In coming to this conclusion, the court considered the right to an adequate standard of living in article 11 of the ICESCR. The court reasoned that because this right is subject to "progressive realization" it "signifies a mere intent" or policy objective of government rather than an enforceable human right.

In response to these and other cases documented in the NGO 1993 submissions, the CESCR expressed concern that "some provincial governments in Canada appear to take the position in courts that the rights in article 11 of the Covenant are not protected, or only minimally protected, by the Charter of Rights and Freedoms." It expressed further concern that "in a few cases, courts have ruled that the right to security of the person in the Charter does not protect Canadians from social and economic deprivation, or from infringements of their rights to adequate food, clothing and housing."

The Committee had questioned the government delegation about how far the protection of security of the person may go in protecting the rights under article 11 to an adequate standard of living, including adequate food, clothing and housing. The delegation responded by saying that:

One of the key recommendations in 1993 from the Committee was to "encourage the Canadian Courts to continue to adopt a broad and purposive approach to the interpretation of the Charter of Rights and Freedoms and of human rights legislation so as to provide appropriate remedies against violations of social and economic rights in Canada." In response to the reasoning of the trial court in Gosselin and other cases, as well as to information provided to the Committee about the unenforceable "social charter" or "social and economic union" provisions contained in the Charlottetown Accord, the Committee expressed concern that "in some court decisions, and in recent constitutional discussions, social and economic rights have been described as mere ‘policy objectives’ of Governments rather than as fundamental human rights."

In its 1998 review of Canada, the inadequacies of domestic human rights protections continued to be a major focus of attention, centering again on sections 7 and 15 of the Charter. In a follow-up to its 1993 concerns and recommendations regarding the application of section 7 of the Charter, the Committee asked the Government the following question:

The federal Government responded to the Committee’s question as follows:

Thus, the Committee noted among positive developments that:

In reviewing Supreme Court section 15 jurisprudence, the Committee was particularly pleased by the Eldridge decision. In that case the Court considered a failure of the British Columbia Government to provide interpreter services for the Deaf and Hard of Hearing in the provision of healthcare. In finding that the province had a positive obligation to ensure that such services are provided, a unanimous Court explicitly rejected the basis on which so many lower court decisions reviewed by the Committee had dismissed poverty related claims:

As in 1993, NGO submissions documented government pleadings in court which were quite inconsistent with the position taken by Canada before the Committee and with what the Committee saw as positive developments at the Supreme Court of Canada . Of particular concern to the CESCR were the pleadings of the Government of Ontario in Masse v. Ontario (Ministry of Community and Social Services), in which twelve Ontario social assistance recipients, including seven sole support mothers, asked the Ontario Court (General Division) to strike down a twenty-one percent cut in provincial social assistance rates. The CESCR was provided with some of the uncontroverted evidence in the case that showed, among other things, the cuts would lead to significant increases in homelessness and would dislocate approximately 120,000 families.

The Court in Masse summarized the Attorney General’s pleadings in the following terms:

The court in Masse accepted evidence that "the effects of poverty include low birth weight, poor nutrition, inadequate housing, ill health and stress, all of which affect the cognitive and psycho-social development of children" and that the welfare cuts would have severe consequences for social assistance recipients in Ontario:

The court nevertheless accepted the pleadings of the Attorney General of Ontario with respect to the scope of rights under the Charter. O’Brien J. noted that "much economic and social policy is simply beyond the institutional competence of the courts." He found that:

Similarly O’Driscoll J., in a separate concurring judgment, rejected the applicants’ claims on the basis that the court has no jurisdiction "to second guess policy/political decisions."

The Committee received information at the 1998 review about other cases in which courts had refused to consider claims related to poverty issues on the basis that these are not rights issues for adjudication by courts but rather policy decisions for the consideration of legislatures. Debbie Clark, a single mother of a disabled child, for example, was required to pay a $312 utility deposit because she had no previous service in her name. Municipal welfare authorities would not cover this, so Ms. Clark was threatened with having her hydro service disconnected. In dismissing her challenge under sections 7 and 15 of the Charter to the deposit requirement, the Ontario Court (General Division) held that "[t]his type of claim requires the kind of value and policy judgments and degree of social obligation which should properly be addressed by legislatures and responsible organs of government in a democratic society, not by courts."

In another case reviewed by the Committee, New Brunswick (Minister of Health and Community Services v. G. (J.), a single mother on social assistance challenged the denial of legal aid in a custody proceeding on the basis of section 7 of the Charter. The majority of the New Brunswick Court of Appeal (since reversed by the Supreme Court of Canada) had dismissed the claim on the basis that "the provision of domestic legal aid is a legislative function and not one for determination by the courts." The CESCR expressed concern about the limited access to civil legal aid for some women and recommended that the provinces allocate more resources to this area. Of even greater concern, however, was the judicial reasoning in this and other cases reviewed which relegated exclusive responsibility for protecting the rights of poor people to the legislature.

Judicial reasoning of this sort is clearly incompatible with the acceptance of social and economic rights as fundamental human rights requiring effective domestic remedies. The CESCR was deeply perturbed by the immense distance between the approach of the courts in Masse, Clark, G.(J.) and other cases, and any interpretation and application of the Charter which would be consistent with the ICESCR. It was not so much that the courts had failed to make any attempt to provide effective remedies for violations of Covenant rights by way of a "broad and purposive" interpretation of the Charter, as the Committee had recommended in 1993. Rather, compelling equality and security claims of poor people had been rejected on the basis of government pleadings and bold judicial assertions that social and economic rights are not rights at all, but policy choices that are not appropriate issues for the consideration of courts. The lower courts were displaying a consistent pattern, invariably encouraged by government pleadings, of narrowing the scope of Charter protections in order to exclude poverty issues and any positive obligations on governments to comply with substantive obligations under international human rights law.

The CESCR leads off its lengthy list of concerns with two caustic comments about government pleadings and court decisions in Charter cases:

The consensus and recommendations of the various treaty monitoring bodies send a strong message of the need for reform of our approach to human rights in Canada. The CESCR suggests, however, that the necessary reform does not mean reversing Supreme Court jurisprudence on sections 7 and 15 of the Charter but rather, simply applying it more consistently to the claims of poor people to security, dignity and equality. The CESCR is clear that the courts in Canada have an important role to play in protecting social and economic rights by way of Charter claims. In the final section, I will review the Supreme Court’s approach to the appropriate role of courts and legislatures in relation to social and economic rights claims, and consider whether the adjudication of social and economic rights claims can be accommodated within the scope of what the Court has described as its proper role.

The directions from the CESCR to interpret the Charter so as to provide effective remedies to violations of social and economic rights are grounded in the commonly accepted relationship between international law and domestic law. As the CESCR notes in its General Comment No. 9:

The Supreme Court of Canada has affirmed the requirement that domestic law be interpreted consistently with international human rights law on a number of occasions. Most recently in Baker v. Canada (Minister of Citizenship and Immigration), L’Heureux-Dubé, J. asserted for the majority, that international law is "a critical influence on the interpretation of the scope of the rights included in the Charter." She further elaborates on that principle in R. v. Ewanchuk, where she states that "our Charter is the primary vehicle through which international human rights achieve a domestic effect." She notes that "the equality guarantee, along with the guarantee of security of the person, will be particularly important vehicles for incorporating international human rights norms, as these two rights "embody the notion of respect of human dignity and integrity."

There would be no justification for excluding social and economic rights obligations under international law from the general principle of consistent interpretation, particularly of the rights to equality and security of the person in the Charter. As noted above, it was in the context of invoking the right to work under the ICESCR that the Supreme Court adopted Dickson C.J.’s precept that "the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada ratified." Social and economic rights, particularly those linked with the right to an adequate standard of living, including adequate food, clothing and housing, directly engage the fundamental values of "respect of human dignity and integrity."

In this sense, the following proposal from the international human rights scholar William Schabas seems entirely consistent with the Court’s vision of the relationship between the Charter and international human rights law:

Craig Scott similarly argues that the emerging consensus among international human rights treaty monitoring bodies calls for a "judicial transformation" in which international human rights values would permeate domestic human rights culture. He borrows from a speech by Justice La Forest in which it is observed that "we are absorbing international legal norms affecting the individual through our constitutional pores" such that Canadian courts and many other national courts "are truly becoming international courts in many areas involving the rule of law." Scott notes, however, that Justice La Forest’s description "still applies much more to the Supreme Court than it does to most lower courts" and as such is more of a "desirable orientation for the future" than any existing "judicial ethos."

Ironically, in rejecting poverty related claims under the Charter, lower courts have frequently relied on Justice La Forest, the same judge who speaks eloquently for the absorption of international human rights law, who signed onto Dickson, C.J.’s majority decision in Slaight Communications, and who affirmed on behalf of a unanimous Court in Eldridge that the Charter imposes positive obligations on governments to address the needs of disadvantaged groups. Virtually every lower court decision reviewed and criticized by the CESCR cited Justice La Forest’s caution in Andrews that: "Much economic and social policy-making is simply beyond the institutional competence of the courts: their role is to protect against incursions on fundamental values, not to second guess policy decisions." Even in Eldridge itself, at the same time as affirming positive obligations under the Charter consistent with the recognition of social and economic rights, Justice La Forest noted that courts must afford legislatures "wide latitude" when it comes to the distribution of resources:

Clearly the result in Eldridge demonstrates that these and other comments from the Supreme Court suggesting deference to legislatures in the social and economic domain ought not to be taken as justifying a refusal on the part of the courts to ensure that governments meet their substantive obligations toward vulnerable and disadvantaged groups. The Supreme Court has not, however, been as clear as it might have been about how lower courts are to decide when to defer to legislatures and when to intervene. Lower courts have rallied around three themes in Supreme Court jurisprudence in dismissing poverty related claims: (a) reluctance to review decisions dealing with positive obligations to allocate resources; (b) judicial incompetence in dealing with social policy; and (c) reluctance to assume the "policy-making" role legitimately assigned to elected legislatures. While all of these principles involve valid judicial and political concerns, they have been too often invoked by lower courts to justify an abdication of judicial responsibility to uphold the constitutional rights of the most vulnerable groups in the social and economic sphere. These concerns need to be properly situated within the context of the broader purposes of the Charter, an appreciation of the contents of international human rights law and a recognition of the importance of protecting the rights of the most vulnerable groups.

(C). Charter Rights and Positive Obligations

Positive obligations to "respect, protect and fulfill" human rights are at the heart of the international human rights movement. Treaty monitoring review, as noted above, has increasingly focused on the requirement in the ICESCR of the application of the "maximum of available resources" and held affluent countries accountable to "progressive" standards. Similarly, the HRC has identified critical substantive obligations to address homelessness and poverty as issues linked with the right to life, the right to equality and the special status of the needs of children in international human rights law. If the Charter is to become a vehicle for giving domestic effect to Canada’s international human rights obligations, as envisaged by L’Heureux-Dubé, J. and the rest of the Court in Baker, substantive obligations must similarly frame the analysis of these rights in the Charter.

Recognizing the positive components of rights in the Charter corresponds in a direct fashion to recognizing the dignity and equality interests of the most disadvantaged constituencies. Poor peoples’ claims to dignity, security and equality occur largely in the social and economic domain and frequently relate to governments’ positive obligations to address disadvantage. As Martha Jackman has noted, if these types of claims are rejected, poor people are disenfranchised from an important aspect of a participatory democracy.

To the Supreme Court’s credit, it has been fairly consistent in resisting the idea that the Charter primarily protects "negative" rights. The Court has generally asserted that Charter rights are a combination of positive and negative aspects, and that the courts have an important role in ensuring compliance with both aspects. This approach has been affirmed not only in the interpretation of rights such as minority language rights, set out in more positive terms in s. 23 of the Charter but also in the interpretation of more classical civil and political rights such as "freedom of expression". The effectiveness of the Charter in protecting the dignity and security interests of poor people, people with disabilities, and other disadvantaged groups, however, relies to a large extent on the courts’ treatment of positive rights claims under sections 7 and 15.

 (i). Positive Obligations under Section 15

The Supreme Court affirmed in Schachter that an equality right is "a hybrid of sorts, since it is neither purely positive nor purely negative." The Court endorsed, within the context of a respect for legislative purpose and Charter values, a "positive rights" approach to remedies in cases of programmes which are under-inclusive, choosing to "read into" legislation those groups that would otherwise be denied a benefit because of a discriminatory provision. The CESCR commented favourably on that decision, and also on the Sparks decision, extending security of tenure to residents of public housing. A positive remedy of the sort endorsed by the Supreme Court in Schachter and implemented by the Nova Scotia Court of Appeal in Sparks is clearly more consistent with the provisions of the ICESCR than the "equality with a vengeance" approach that had previously been adopted by some lower courts, such as when disparities between eligibility of single mothers and single fathers led the Nova Scotia Court of Appeal to strike down the benefits of single mothers.

Substantive obligations under international law, however, go beyond the type of positive remedy for discriminatory under-inclusion endorsed in Schachter and utilized in Sparks. International human rights law does not only require that maternity and parental benefits or security of tenure be provided to disadvantaged or excluded groups in order to remedy discriminatory under-inclusion. It requires, more fundamentally, that adequate programmes and benefits be provided and that appropriate legislation be adopted to protect and fulfill the rights in the Covenant - to provide necessary protection and support for mothers, parents and children, for example, or security of tenure for tenants. Providing effective remedies to violations of social and economic rights thus means not only providing legal recourse when particular groups are discriminated against in the provision of benefits, but also providing for legal remedies when governments simply fail to comply with their positive obligations to provide adequately, through legislation or social programmes, for the needs of vulnerable groups. From the standpoint of international human rights obligations, the responsibility of the courts to intervene to protect the fundamental human rights of disadvantaged groups should not only be triggered by discriminatory provisions in social programmes or legislation. It should also be triggered where governments are simply not meeting their normative obligations to address the needs of vulnerable groups, particularly where they have adequate resources to do so.

Lower courts’ rejection of social and economic rights claims under section 15 of the Charter have relied on assertions that governments are not required by section 15 to implement programmes or to provide any particular "level" of benefit. They have consistently asserted that section 15 does not impose positive obligations on governments to remedy disadvantage existing independently of government action or legislation. Thus, in Fernandes, Gosselin, Masse, and other cases reviewed by the CESCR, poverty was found to be the result of personal circumstances rather than government action and the courts held that there was consequently no obligation on governments to implement programmes to address it. The CESCR was particularly shocked to read so starkly in the Masse decision that "the legislature could repeal the social assistance statutes," presumably to let single mothers, their children, people with disabilities and others currently relying on social assistance simply go without food, clothing or housing. Courts infer that if there is no obligation to implement programmes or pass legislation in the first place then there can be no basis for reviewing the adequacy of programmes or benefits, even where the benefits are clearly necessary for the enjoyment of meaningful equality and dignity for those who rely on them.

It is incomprehensible from the standpoint of international human rights law that the guarantee of equality and dignity under the Charter does not include even the most universally acknowledged responsibilities of civilized governments to legislate and provide necessary protections for vulnerable groups. International human rights law is founded upon governmental obligations to implement the rights under various Covenants through appropriate legislative and other measures. A Charter jurisprudence premised on the absolute right of governments to revoke legislative protection or social programmes relied on by vulnerable groups would be completely incompatible with international human rights law. Nevertheless, it has been quite routine for governments to argue, and for courts to endorse, that section 15 imposes no positive obligations on governments in Canada to meet even the most fundamental responsibilities under international human rights law. Courts have agreed with respondent governments that they are not required by section 15 to, for example, ameliorate the conditions of poverty and inadequate housing among Aboriginal communities; adopt human rights legislation prohibiting discrimination; provide healthcare for the sick and infirm;or ensure the provision of social assistance for single mothers and others in need.

Fortunately, however, this wall separating domestic equality jurisprudence from substantive obligations under international human rights law has now been knocked down by the Supreme Court. In Eldridge, when deaf claimants argued that section 15 imposed an obligation on the Government of British Columbia to provide interpreter services so they could communicate with their doctors, provincial governments from across Canada rallied to argue against the idea that section 15 would impose obligations on governments to address social or economic disadvantage that exists independently of government action. They argued that only disadvantage caused by a discriminatory provision or action of government would fall within the ambit of section 15 - not disadvantage that exists independently of government action, such as the disadvantage associated with deafness. Justice La Forest, writing for a unanimous court, condemned as "thin and impoverished" the notion of equality advanced by those who claim that "section 15(1) does not oblige governments to implement programmes to alleviate disadvantages that exist independently of state action."

As noted by the Court in Vriend the "substantive" equality analysis endorsed in Eldridge redirects the focus of inquiry from the effect of legislative distinctions to the effects of the social realities faced by disadvantaged groups. In more traditional discrimination claims, the equality analysis will focus on the comparison between those who are included in legislative protections and benefits and those who are excluded. The substantive equality analysis, however, considers the discriminatory effect on members of disadvantaged groups of not providing the protection or benefit they need. This failure to address a unique need or disadvantage is considered in the context of the social realities facing disadvantaged groups in Canada. Refusing to provide necessary funding to a programme that provides interpreter services to the deaf and hard of hearing or failing to enact human rights protections necessary to gays and lesbians has a discriminatory effect simply because of the unique needs of the groups.

In many cases, a substantive equality analysis such as this may provide a basis on which to claim important components of social and economic rights, which similarly oblige governments to address the needs of the most vulnerable groups, by implementing programmes or legislating protections necessary to the enjoyment of dignity and security. Further, the substantive equality approach outlined by the Court in Eldridge and Vriend is consistent with the emerging approach to equality within the United Nations human rights treaty monitoring bodies such as CEDAW and HRC described above. When these bodies identify the discriminatory effect on women and children of social programme cut-backs or inadequate legislative protections in Canada, they are engaging in precisely the kind of equality analysis endorsed by the Supreme Court of Canada as a substantive equality approach.

Does this approach to equality mean that the courts will become policy-makers or examine every piece of legislation or programme for adequacy? Not at all. It means that Canadian courts, like U.N. human rights treaty monitoring bodies, can consider the broad systemic pattern of social and economic disadvantage as being central to the equality guarantee. Where adequate programmes or legislation are necessary for the protection of fundamental human rights linked with dignity and personal integrity, section 15 will require governments to meet certain substantive obligations in the implementation of the necessary legislation and programmes. The threshold for judicial intervention and the nature of the remedy will be derived, as in other section 15 cases, from the analysis of dignity interests and a consideration of the respective competencies and roles of courts and legislatures.

Equality analysis that is properly informed by international human rights law will be able to draw on evolving norms within international human rights defining the scope and content of governments’ obligations toward disadvantaged groups in the social and economic domain. General Comments adopted by the CESCR, for example, describe the obligations attached to the right to adequate housing and the right to food. They also identify substantive obligations linked with the protection of dignity and equality interests of persons with disabilities and older persons. The importance of considering this evolving jurisprudence at the international level is recognized by L’Heureux-Dubé, J. in Ewanchuk, where she relies on interpretive comments from CEDAW in applying the Convention on the Elimination of All Forms of Discrimination Against Women to Charter interpretation. Canadian courts can derive considerable guidance from both the interpretive comments of U.N. human rights treaty monitoring bodies and their specific observations on issues within Canada. These provide a useful reference point from which Canadian courts can assess the substantive obligations of governments toward disadvantaged groups under section 15 of the Charter.

As L’Heureux-Dubé, J. notes in Ewanchuk, section 7 of the Charter will also be important as a vehicle for the incorporation of international human rights in the Charter. The CESCR has challenged Canadian courts to adopt a more substantive reading of life, liberty and security of the person, and of fundamental justice to recognize governments’ positive obligations to protect social and economic interests linked with security and integrity.

In the past, courts have tended to assume that section 7 of the Charter is primarily a right to be free of state interference, not a right to the benefit of government action or programmes. Lamer, C.J. observed in Schachter that section 7 is generally viewed as more of a "negative" right than section 15:

If the potential of section 7 to protect rights such as the right to food, clothing and housing, referred to in Irwin Toy is to be realized, however, the positive components of these rights must clearly achieve greater recognition.

Though in no way developing a broad, substantive reading of section 7, the Supreme Court’s recent decision in New Brunswick (Minister of Health and Community Services) v G. (J.), certainly rejected an exclusively "negative rights" orientation to section 7 and affirmed that this section, like section 15, places positive as well as negative obligations on the state. In that case the Supreme Court overturned the majority decision of the New Brunswick Court of Appeal, which had dismissed a section 7 challenge to the denial of funding for legal aid in child custody proceedings. As noted above, this had been one of the decisions which caused concern at the CESCR. The majority of the Court of Appeal had rejected the section 7 claim on the basis that "it is [not] the responsibility of the courts to effectively create programmes designed to further social justice and equality ...."

As noted above, most courts which have rejected poverty related claims under the Charter have relied on Justice La Forest’s statement in Andrews that "[m]uch economic and social policy-making is simply beyond the institutional competence of the courts." The New Brunswick Court of Appeal in G.(J.) relied further on Justice La Forest’s dissent in RJR-MacDonald Inc. v Canada (A.G.), in which he wrote that:

These comments, of course, need to be understood in the context of considering the rights of a tobacco company, not fundamental social rights of the poor. It is clear from the position which Justice La Forest adopts in other cases, most notably in Eldridge, that his cautions about judicial competence ought not to be taken as a reason for rejecting the human rights claims of the most disadvantaged groups in the social and economic domain. Nevertheless, judicial musings about the relative incompetence of courts in comparison to elected representatives who "compile and assess social science evidence" and "reach out to protect vulnerable groups" have frequently been invoked by lower courts as a reason to refuse to protect the most fundamental rights of poor people.

Assertions of incompetence in the social and economic field, however, have been made and repeated by lower courts with little examination in specific contexts. For instance, it is difficult to credit the suggestion that social science evidence is so difficult as to be beyond judicial competency where fundamental rights rather than policy-making choices are at issue. Courts deal with social science evidence all the time. The court in Masse, in fact, had no difficulty in assessing social science evidence as to the effect of the welfare cuts in Ontario. The court found, as did the CESCR subsequently, that the cuts would force many families out of their homes and some into homelessness. This type of social science evidence is no more difficult for courts to deal with than issues that arise in the criminal context, such as complex DNA evidence or the child psychology needed to deal with children witnesses who have been victims of sexual abuse. These are not areas in which judges have obvious expertise, nor need they have. Their role is to hold fair hearings and to consider the evidence, not to use any inherent expertise in the issues before them.

It is important to be clear about what claimants of social and economic rights are actually asking courts to do before declaring courts incompetent to do it. The court in Masse was asked, first, to assess social science evidence as to the anticipated effects of the welfare cuts. Evidence was presented that the cuts would, among other things, force households from their homes and deprive them of sufficient income to provide for adequate food and nutrition. The court considered this evidence and found that it was credible. It found that many recipients would have to leave their present homes and some would become homeless. The claimants then asked the court to consider whether government action creating these effects was in violation of the claimants’ constitutional rights. The claimants asked that their Charter rights to equality and security of the person be interpreted consistently with international human rights law.

Assessing whether these documented effects infringe on constitutional rights and interpreting these rights in line with international human rights law surely engages an area of judicial, not legislative competence. Poor people such as the claimants in Masse do not advance rights claims under the Charter on the assumption that courts are experts in social policy and on that account ought to redesign programmes. Rather, they seek from the courts hearings into and adjudication of their constitutional rights, informed by the principles of Charter interpretation affirmed by the Supreme Court of Canada.

Unfortunately, lower courts have premised their assessments of these constitutional claims linked with poverty on the idea that social and economic rights are not fundamental human rights, not subject to adjudication and remedy, and therefore not within the competency of courts. Poor peoples’ constitutional claims to dignity , equality and security are mistaken for demands that judges "make policy" simply because rights to dignity, equality and security are interdependent with and indivisible from the right to an adequate standard of living, including adequate food, clothing and housing. Examined more closely, however, these claims are really only demands that Charter rights be adjudicated in the social and economic domain in the same way as they are adjudicated in other areas.

Without underestimating problems of social or class bias confronting poor people claiming their Charter rights in court, the opportunity to address poverty issues in a public forum, to have stories told and heard, often for the first time, to have relevant evidence disclosed, put on the record and examined, and to have submissions heard as to the interpretation and application of universal principles of law to specific issues in the lives of poor people - these participatory rights which transformed the review process at the CESCR are seen as all-important to a constituency that has previously been excluded from the human rights movement in Canada. As Frank Michelman suggests, courts may "enjoy a situational advantage over the people at large in listening for voices from the margins." The guarantee of a hearing and the protections of procedural fairness are taken for granted by constituencies that have had their human rights protected as "first generation rights;" yet they are new and empowering to poor people who have been denied access to rights claiming processes in the past.

There is no question that remedies to violations of social and economic rights may frequently require the legislature or executive to implement or alter programmes, or to adopt new regulatory or legislative measures. These types of remedies fall in the legislative rather than the judicial sphere of competence. But this fact does not warrant the kind of abandonment of the social and economic sphere and problems linked with poverty that has been seen at the lower court level in Canada. Rather, it requires a more flexible approach to Charter remedies.

The Supreme Court has appropriately preferred to exercise deference at the remedial stage in these types of cases rather than abdicate from any judicial role simply because substantive Charter claims may engage issues of programme implementation or legislative duties. In Eldridge, for example, the Court recognized that legislatures ought to be given "wide latitude in the allocation of resources". But this did not mean dismissing an equality claim simply because the remedy required would involve the implementation of a programme or the allocation of resources. The Court simply rendered its decision on the "rights" issues and left the "policy-making" to the government. It recognized that there were "myriad options available to the government that may rectify the unconstitutionality of the current system." The Court declared the government’s constitutional responsibility to ensure that sign language interpreters will be provided where necessary for effective communication in the delivery of medical services, by whatever means it considers most appropriate.

As Craig Scott and Patrick Macklem note with respect to the Supreme Court’s decision in Schachter, courts must respond to their new constitutional responsibility through a combination of creating competence where needed and deference to legislatures where appropriate:

Remedies to violations of social and economic rights in the context of Canadian federalism will frequently involve more than one level of government. A number of violations that have been identified at the international level have themselves been the result of inter-governmental agreements and the recommended remedies require that various levels of government in Canada work together to achieve compliance. In these instances, courts would need to give governments time to negotiate new arrangements and agreements to achieve compliance with substantive obligations under the Charter and international human rights law.

A recent decision under the social and economic rights provisions of the Constitution of the Republic of South Africa provides a useful model of flexible approach to remedies that can be adopted in relation to substantive Charter claims linked with social and economic rights in Canada. The High Court of South Africa in Grootboom v Oostenberg Municipality considered a claim by a group of 390 adults and 510 children forced to camp at a sportsfield without tents or facilities after having been forced to vacate a squatter settlement. The homeless families initiated a claim against all relevant governments, from local to national, alleging violation of their right to adequate housing, as protected by s. 26 of the South African Constitution or, alternatively, violation of the children’s right to basic shelter, as protected by s. 28 of that Constitution. The Court was not prepared to find for the group under s. 26 because the governments could show, according to the Court, that in the context of scarce resources and competing needs, it had taken "reasonable legislative and other measures, within its available resources, to achieve a progressive realisation of this right."

On the other hand, the Court was prepared to accept the claim under s. 28 because that section established a right of every child to basic nutrition, shelter, health care services and social services and was not expressed to be subject to the "progressive realization" provision. Like Canadian courts, however, the Court was concerned not to intrude upon the responsibility and functions of the various levels of government concerned, nor to pre-empt the development of an appropriate remedy. It declared that the various levels of government were jointly responsible for a violation of the children’s right to basic shelter and outlined certain minimum requirements that needed to be met. It further ordered that the governments report back to the court on matters of implementation within three months, that the applicants then have a further month to comment on the report, followed by a reply from the governments. Only then, if necessary, would the Court make a further remedial order.

The express inclusion of justiciable social and economic rights in their Constitution has not, therefore, led South African courts to take over the social policy function of government. Rather, they have begun to adopt flexible and creative approaches to remedy, recognizing that various governments need to work together to achieve compliance with social and economic rights, and need to be given appropriate time to develop policy responses to judicial rulings. At the same time the Court recognized, in Grootboom, the importance of ensuring the participation of affected constituencies in the development of an appropriate remedy. These are precisely the types of approaches which Canadian courts ought to take , along the model of the Eldridge decision, in order to recognize the respective competencies of courts and legislatures while safeguarding the rights of vulnerable groups in critical areas linked with equality, security and dignity in the social and economic domain.

Closely related to the question of relative competence of courts and legislatures is the question of the "legitimate" role of legislatures in making policy. Poor peoples’ Charter claims are frequently considered demands that courts take over policy-making. The underlying premise of such statements, however, is simply that social and economic rights such as the right to an adequate standard of living are not rights at all, but policy issues. What is needed, of course, is a clearer distinction between "policy making", which is what legislatures ought to do, and "rights adjudicating", which is what courts ought to do. Rather than relegate the entire social and economic sphere to "policy-making", it makes more sense to delineate the respective responsibilities of legislatures and courts in this as in other areas through the recognition of the courts’ proper role in upholding fundamental rights.

The Supreme Court has made it clear in recent decisions that courts cannot simply abandon their constitutional responsibility when Charter rights claims engage more complex issues of social policy. As McLachlin J, writing in RJR-MacDonald, stated:

As stated by Iacobucci, J. in Vriend, a "social contract" was created with the Charter which gave a new role and responsibility to the courts. The oft cited critique that courts are wrongfully usurping the role of the legislatures "misunderstands what took place and what was intended when our country adopted the Charter in 1981-82." Judicial interventions in defence of democratic values and principles are what the new judicial role is all about:

As Chief Justice Dickson affirmed in Slaight Communications, international human rights "reflect the values and principles that underlie the Charter itself." Our judicial culture which is more at home with civil and political rights, however, has too often ignored the important role of international human rights in guiding courts in their determination of the fundamental Charter values in the social and economic domain.

The lower court decisions which have expunged poverty issues from the scope of Charter protections have simply misapplied and misinterpreted Justice La Forest’s statement in Andrews. Admonishing courts not to second-guess legislative policy choices in the social and economic realm, Justice La Forest did not suggest that there are no fundamental values or human rights issues at stake in the social and economic domain. Rather, he distinguished the appropriate role of courts in protecting "fundamental values" from the inappropriate use of the Charter as a "tool for the wholesale subjection to judicial scrutiny of variegated legislative choices in no way infringing on values fundamental to a free and democratic society."

Legislative choices which deprive vulnerable groups of access to adequate food, clothing and housing clearly infringe on fundamental Charter values. The right to an adequate standard of living and other social and economic rights are central to what Chief Justice Dickson described as "the values and principles that underlie the Charter itself." It is simply no longer tenable, given the emerging consensus at the international level about the nature of the most fundamental human rights violations in Canada, to hold that legislative choices linked with poverty, homelessness and hunger have not engaged fundamental democratic values.

The recent decision in Baker suggests that international human rights law will be a "critical influence" in distinguishing issues of fundamental human rights from areas of legitimate policy choice. And the CESCR has made it clear that the right to an adequate standard of living and other social and economic rights cannot be downgraded to mere policy objectives. Poverty among vulnerable groups engages "fundamental democratic values" and human rights. There is a critical role for the courts in applying the Charter appropriately in the social and economic domain so as to address these critical violations of fundamental human rights.

For poor people, the recognition of social and economic rights as components of Charter rights to dignity, equality and security is a prerequisite for their acceptance as full and equal participants in the human rights movement and in democratic institutions in Canada. The challenge emerging from the U.N. treaty monitoring bodies is not so much for judges to be "creative" about reading social and economic rights into the Charter as it is for them to stop being so determined to read out of the Charter poor peoples’ legitimate rights to security and dignity. The interdependence and indivisibility of social and economic rights with civil and political rights means that if domestic courts maintain an ideological commitment to downgrading social and economic rights to unenforceable policy objectives, the equality and security rights of the most vulnerable groups will be unfairly denied protection under the Charter.

Giving appropriate recognition to poor peoples’ claims to dignity, equality and security and infusing Charter interpretation with evolving international human rights norms does not require courts to throw aside concerns about judicial deference to the role and competence of legislatures. It is important to appreciate Justice L’Heureux-Dubé’s use of the word "scope" of the Charter’s protections. Ensuring that international human rights law is a critical influence in determining the "scope" of the rights in the Charter does not mean dramatically expanding the role of the judiciary or encroaching on the policy making function of legislatures. In its classical use, the idea of interpretive "scope" was used to describe the navigational aim or sight of textual interpretation which would ensure that the elaborated meaning of a text remains true to its central purpose. For the social and economic rights protected in international human rights law to become a critical influence in determining the "scope" of Charter rights, the courts do not need to expand the ambit of the rights protected or extend the role of the judiciary into policy-making. Rather, they need simply to refine the "sight" or orientation of Charter interpretation around its central purpose.

Referencing Charter interpretation to social and economic rights and other substantive obligations under international law will assist the courts in identifying and protecting the values fundamental to a free and democratic society. At the same time, this new reference point will help human rights advocates, human rights institutions, social justice advocates, politicians and the media rethink the distinction between human rights and social policy in order to bring the most critical issues of human rights more clearly into focus. We all need to think again about rights and politics in Canada to ensure a fair hearing for those whose fundamental human rights are being violated by poverty and homelessness.