UNITED NATIONS

The Committee on Economic, Social and Cultural Rights

RE: The Review of the Third Report of Canada at the Committee's 19th Session (November - December, 1998)

SUBMISSIONS TO THE COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS BY THE CHARTER COMMITTEE ON POVERTY ISSUES (CCPI)

NOVEMBER 16, 1998

The Charter Committee on Poverty Issues (CCPI)

 

TABLE OF CONTENTS

Part I: Economic and Social Overview

Part II: The Government of Canada

Part III: The Charter of Rights as the Vehicle for Protecting Social and Economic Rights in Canada

Part IV: Social and Economic Rights in the Covenant and 36(1) of the Constitution Act, 1982

PART V: Canadian Implementation of Articles 9 and 11 Apart From Constitutional Legislation

PART VI: Expansion of Human Rights Legislation to Include Social and Economic Rights

Part VII: The Social Union and the Rights in the Covenant

PART I

CANADA IN THE YEARS 1993-1998:AN ECONOMIC AND SOCIAL OVERVIEW

 

1. Since Canada last came before this Committee in 1993, the economy has emerged strongly from the recession of the early 1990's. The Canadian Government's recent Economic Statement provides a snapshot of just how well the economy has performed:

2. The Canadian government experienced a record deficit in the fiscal year 1992-93 but in the last fiscal year (1997-98) recorded a budget surplus of $3.5 billion dollars - the only country in the 'Group of 7' ("G-7") countries to do so.

3. Last year, the economy (GDP) grew strongly at a rate of 3.7%. In the period 1993-1997, growth averaged 1.7% which was the second highest of all G-7 countries.

4. Corporate profits have grown strongly since 1993, showing increases of more than 15% every year with the exception of 1996.

5. Indeed, the fiscal position of both levels of government in Canada has improved drastically; from an aggregate (federal-provincial) deficit of $66 billion in 1992-93 to a small surplus in 1997-98.

6. On the job side, employment growth in the '93-97 period averaged 1.7% -again the second highest in the G-7 after the United States.

7. Since 1993, the unemployment rate has fallen by three percentage points; from 11.2% to 8.2% currently. With the exception of the United Kingdom, no G-7 country has done better.

The Social Situation: Deep Cuts in Social Spending

8. Despite the strong economic growth and a buoyant economy, the situation for people living in poverty and other vulnerable groups has been allowed to deteriorate drastically. Deficit reduction has been achieved at the expense of the most vulnerable groups. Both the government of Canada and the provincial governments have chosen social programs as the primary area in which spending would be slashed. In 1993 the Committee expressed a number of strong concerns:

- unacceptable levels of poverty, particularly among single mothers

- widespread reliance on food banks

- cuts to federal transfer payments

- inadequate social assistance rates

- surprisingly low expenditures on social housing

- homelessness

9. In all of these areas, governments in Canada have acted to make the situation significantly worse. There has not been one recommendation of this Committee which was acted upon, or one area of concern in which there has not been significant retrogression.

10. In February, 1995, when the Canadian government announced its intention to repeal the protections in the Canada Assistance Plan, it was accompanied by $7 billion (40% of the total cash transfers) in cuts from the Federal government to the provinces for their social programs. At the time, the Minister of Finance promised gleefully that he would reduce spending by $25.3 billion from 1995-96 through 1997-1998. As a percentage of the economy, he said:

"This is by far the largest set of actions in any Canadian budget since demobilization after the Second World War".

11. In fact, last month this same Minister released documents which proudly stated:

The reforms to program spending undertaken since 1993-94, coupled with strong economic growth, reduced program spending as a percentage of GDP to 12.7 percent - its lowest ratio since 1949-50 when it was 11.5 percent.

Since 1993-94, the ratio has declined 3.9 percentage points. This decline was primarily the result of a fundamental review of all federal government programs beginning with the 1994 budget and followed up in the 1995 and 1996 budgets.

 

12. In fact, over 60% of the improvement in the Federal government's budget situation has come from cuts in public spending rather than increases in revenue.

13. Indeed, information from the government of Canada indicates that nation-wide deficit reduction at the provincial-territorial level has been achieved primarily through spending reductions.

14. What all this has meant is devastation for millions of Canadians and their families.

15. The Canadian government's own advisory agency, the National Council of Welfare, reported (Spring, 1998):

That in 1996, five years after the last recession, 5,190,000 Canadian children, women and men lived in poverty. While the rest of the economy enjoyed modest growth year after year, the overall poverty rate inched up to 17.6 percent. In 1989, the House of Commons resolved to eradicate child poverty by 2000. Only four years before that target date, child poverty has risen to 20.9 percent, the highest rate in 17 years.

 

16. It should be noted that the child poverty rate stood at 18.2% in 1992 and 14.5% in 1989. In other words, since the resolution by Parliament of its commitment to eradicate child poverty by the end of the century, the number of children living in poverty has actually increased by 45%.

17. Vulnerable groups continue to experience poverty at rates that stagger the mind. Women have been hardest hit. The poverty rate for single-parent mothers with dependent children rose to the obscene level of 61.4% (these families make up about 19% of all families with children).

18. Aboriginal people, too, are continuing to live in poverty at levels that constitute a national policy of systemic neglect. In the Responses to the 'List of Issues', the Canadian government refers to poverty levels experienced by First Nations people in urban centres. The same source for this data also reveals that while Aboriginal people make up just over 1% of Canadians, the average percentage in receipt of social assistance is 30% (note: in Atlantic Canada, 77% of on-reserve natives are on assistance).

19. The official statistical agency of the Canadian government, Statistics Canada, stated that while average family incomes changed little in 1996, "the total incomes of the poorest 20% of Canadians had dropped dramatically because of lower earnings and cuts to transfer payments".

20. Food banks, which provide food to the poor in order to 'bridge the gap' between what government assistance pays and the actual costs of living, continue to multiply. Newly opening food banks are announced regularly as government income support programs prove inadequate.

21. The number of homeless, too, are increasing drastically. Cuts to social assistance programs and withdrawal of support services have left many urban centres in a crisis. The City of Toronto and the City of Ottawa have recently declared that homelessness is a national disaster. Cities across the country are again bracing for the discovery of frozen bodies as homeless people are exposed to the bitterly cold Canadian winter.

22. This is the background to the review of Canada by this Committee.

23. Other groups are presenting to you the tragic details of the cuts in social programs and the effects on vulnerable groups. Our focus will be on another important aspect - particularly to this Committee. It is well recognized that however much NGOs turn to this Committee for help in identifying and remedying violations of fundamental human rights, a five year periodic review in Geneva will not sufficiently protect the rights in the Covenant. Of paramount importance is the domestic protection of these rights.

24. Over the last five years, we have seen not only tremendous cuts in social spending. We have also seen the systematic stripping and intentional undermining of the legal framework for the protection of social and economic rights in Canada. The financial abandonment of the poor, of women, of people with disabilities, of visible minorities by their governments must be understood in the context of a deliberate assault on the legal rights which poor people could otherwise have turned to for a remedy. It is the latter which will be the focus of our submissions.

PART II

GOVERNMENT OF CANADA Repeal of the Canada Assistance Plan

25. Legislation announced in the Parliament of Canada in February, 1995, provided for the repeal of the Canada Assistance Plan ("CAP"). The repeal of CAP (through Bill C-76) is the most important step taken by the government of Canada in the area of social and economic rights in thirty years. It is a manifestly retrogressive measure in that it is an almost complete abandonment by Canada of a framework which ensured rights for all low-income Canadians.

26. From its introduction in 1966, CAP was the national cost-sharing structure for all social assistance in Canada. CAP was Federal legislation which authorized cost-sharing by the Government of Canada of all social assistance expenditures by the provinces in their social assistance programs. The pre-condition which provinces had to meet in order for them to receive full Federal cost-sharing, however, was that they had to establish social assistance programs which legislatively respected significant rights for all persons in need. The specific conditions, which took the form of legal rights, were contained in the CAP legislation. In particular, provinces agreed to insert the following guarantees into their programs:

1. provide assistance to every person in need - regardless of the cause of need (CAP s.6(2)(a);

2. take into account a person's basic requirements in setting social assistance rates (CAP s.6(2)(b);

3. provide an appeal mechanism so that people have a legal right to challenge decisions affecting their entitlement to social assistance (CAP s.6(2)(e));

4. ensure the right to social assistance regardless of one's province of origin (CAP s. 6(2)(d));

5. not require that people who were in receipt of social assistance perform work against their will as a condition of receiving assistance (CAP s.15(3)(a));

27. At its introduction in 1966, CAP represented a dramatic step forward in the recognition of a person's right to social assistance when in need. Up to that point, many provincial programs treated people in poverty as 'charity cases'. Eligibility for assistance had been uneven and entitlement to assistance was often characterized by arbitrariness. Also, there were tremendous variations in basic standards within provinces and between provinces.

28. Under CAP, the Federal government used the vehicle of conditional cost-sharing with the provinces to ensure that all people in Canada were guaranteed basic social and economic rights. Judgement by the Federal Minister of Finance that there had been a failure by a provincial government to implement the 'CAP rights' in their provincial social assistance systems would mean cost-sharing by the government of Canada would be illegal and would be brought to an end. This legally-mandated process of political enforcement was the primary way in which CAP standards were enforced. In the nature of things, the effect of CAP was often preventive in that provinces would make sure that law and practice conformed with CAP rather than trigger federal review and suspension of funding. Occasions when the federal government had to invoke its CAP powers to bring a province into conformity with CAP standards include a situation in British Columbia when it imposed a three-month residency requirement before newcomers to that province could be considered eligible for social assistance. This violation of CAP (s. 6(2)(d)) ended after the federal government withheld a CAP reimbursement payment to the province. In the province of Saskatchewan in 1988, a program by that province to make "workfare" compulsory (in clear violation of CAP) was brought to an end after federal intervention and the threatened withholding of federal CAP transfers.

29. However, judicial enforcement of CAP standards at the instance of persons in need of social assistance was also available. Where such a person was of the view that the Federal minister had misjudged provincial compliance, he or she could go to court to have CAP enforced. As such, CCPI submits that a centrally important feature of the now repealed CAP was the fact that in the Supreme Court of Canada case of Finlay v. Canada (Minister of Finance, [1986] S.C.R. 607, it was determined that the standards or conditions in CAP were legally enforceable by individual social assistance recipients themselves. In other words, the right of people to domestically enforce the conditions or 'rights' in the CAP legislation had become a profoundly important feature of Canada's social security system and thereby, the realization of the requirements of the Covenant for effective domestic remedies. Indeed, this feature of CAP was highlighted by the government of Canada itself in its 1992 report to the Committee.

E/1990/6/add.3,p.8, para. 40

30. The Canadian Government frequently commented on the significance of CAP in the protection of the right to an adequate standard of living. An extract from the CAP Annual Report tabled in the Canadian Parliament in 1972 described CAP's primary objectives as encouraging:

 

...the provision of adequate levels of assistance which would permit recipients to maintain a decent standard of living.

CAP Annual Report (1971-72), p. 1

31. By 1989 the CAP Annual Report for that year described CAP as being crucial to the integrity of Canada's protection of social and economic rights.

By helping the provinces to help people in need, CAP ensures that the social safety net is available when it is needed. As such, it is one of the major cornerstones of the social security system in Canada.

CAP Annual Report for 1986-87, 1987-88, 1988-89, p. 7

32. A 1992 publication by the Government of Canada explained the purposes behind CAP:

The Canada Assistance Plan recognizes that social assistance is a right of Canadians who do not have adequate resources to support themselves or their families. Therefore, what may have caused an individual's need is not an issue with CAP.

The Canada Assistance Plan: Canada's Social Safety Net, (Government of Canada, 1992), p. 12

33. In the review of jurisprudence in Part I of its report, the government of Canada points to the important precedent set by the Supreme Court of Canada in Finlay (1986) which effectively gave standing to low-income people to challenge the compatibility of provincial social assistance programs with the national standards in CAP. The current report by Canada states (on page 11, para. 52) that, while it had opposed Finlay's standing to pursue the claim under CAP all the way to the Supreme Court of Canada, "since the 1986 Finlay decision, the Government of Canada has not challenged the standing of individuals to bring such actions".

34. Research conducted by CCPI reveals that prior to the repeal of CAP and in the only case litigated by a person in poverty since Finlay in which CAP formed the basis of a legal action, the Government did, in fact, oppose the person's standing. In Shunamon et al, a former social assistance recipient was the subject of a civil claim for the repayment of all assistance paid. (The repayment action was authorized by the Nova Scotia Social Assistance Act which provided that all social assistance benefits were a loan, not a grant). Shunamon filed a simultaneous claim against the government of Canada alleging that by permitting the "loaning" of social assistance to continue, Canada had failed to enforce the terms of CAP. Despite the 1986 precedent in Finlay, the government of Canada applied to have the claim dismissed, in part, on the basis of the following submission to the Court:

It is further respectively submitted that the Defendants have no status to raise an issue between Canada and Nova Scotia, even assuming that there was a controversy between them (of which there are no allegations).

 

35. On the application, the Court dismissed the government's application - holding that Finlay (1986) not only permitted Shunamon standing, but that it was quite arguable that Nova Scotia was in violation of CAP.

CAP: Earlier Reports by Canada to the Committee on the Implementation of the ICESCR

36. It has been primarily CAP which the Government of Canada has repeatedly cited in order to demonstrate its compliance with the Covenant and, in particular, article 11 respecting the right to an adequate standard of living. Thus, in August, 1980 the Report of Canada on the Implementation of the Provisions of Articles 6 to 9 of the Covenant stated, in part:

 

Since Canada is a federal country, with many of the responsibilities for social security resting primarily with the provincial governments by virtue of the constitution, the social security system, overall, is a blend of four types of programs:

2. federal-provincial programs that are jointly financed by the federal and provincial governments, administered by the provinces and coordinated to allow probability of benefits and provide for uniform minimum national standards" (emphasis added, and deleting 1, 3 and 4);

(p. 51)

For persons in need, provincial social assistance programs jointly financed with the federal government under the Canada Assistance Plan provide benefits based on a needs test which takes into account a person's budgetary requirements and his income and resources...".

(p. 54)

37. In August, 1982, the Report of Canada on the implementation of the Provisions of Articles 10-12 of the Covenant stated:

 

Under Part I of the Canada Assistance Plan provision is made for the cost-sharing with provinces and territories of general social assistance payments to persons in need. Assistance includes payments for food, shelter, clothing, fuel, utilities, household supplies, and personal requirements as well as prescribed welfare services and items of special need, such as tools or equipment essential to obtaining employment and essential repairs or alterations to property...

(p. 33)

38. In September, 1992, the Second Report of Canada on Articles 10-15

stated:

In Canada, the provinces have established programs for the payments of social allowances to persons in need. The federal government assists in the funding of these programs through the Canada Assistance Plan, which sets certain standards for the provinces to be eligible for this assistance...

E/1990/6/Add.3

25 Jan., 1992, p.8, para. 40

In addition to the Canada Assistance Plan discussed in previous reports and in part I above, numerous programs aim at improving the standard of living and living conditions of people. (emphasis added)

E/1990/6/Add.3, p. 15, para.74

see also E/c.12/1993/SR.5, p.3, para. 7

The Repeal of CAP: Bill C-76

39. In May, 1995 a delegation of Canadian NGO's presented an urgent request to this Committee concerning the announced intention by Canada to repeal CAP. The committee responded by sending a letter to Canada reporting on the NGO concerns and reminding Canada of its obligations under the Covenant. The Committee asked for a report on Bill C-76 later that year, in the context of Canada's periodic report. Nothing was submitted until two and a half years later.

40. Despite the letter from this Committee, Bill C-76 was enacted without amendment. CAP has now come to an end and the old conditional cost-sharing mechanism which ensured crucial social and economic rights and remedies for low-income people has been repealed and replaced by the Canada Health and Social Transfer (the "CHST").

 

Did the CAP Standards/Rights Improperly Intrude into Provincial Jurisdiction?

41. It should be clearly stated that while many governments assume that social assistance programming and delivery is within exclusive provincial jurisdiction under the Canadian constitution (even though this is nowhere explicit in the Constitution Acts or jurisprudence thereunder), the Supreme Court of Canada has authoritatively and definitively approved of the government of Canada's involvement in social assistance matters through the Canada Assistance Plan. That is, the Court has found it to be constitutionally acceptable for the Federal Government to attach conditions to the monies which it transfers to provincial governments for the latter's social assistance programs. The same is true in the area of health care.

42. Not only is the Federal government constitutionally permitted to attach conditions to its financial transfers to the province for social assistance, but the government of Canada has successfully argued in the Winterhaven Stables case that the Constitution actually "contemplates" that Canada will be involved in such conditional cost-sharing of social assistance.

43. The Attorney General's (Canada) argument before the Alberta Court of Appeal in Winterhaven referred to s.36(1) of the Constitution Act, 1982 to highlight what counsel said was "the importance of Parliament and the federal government in assisting the provinces in the provision of essential public services...". Section 36, the Canadian Government counsel argued, "underlines the national as distinct from local character of the [Canada Assistance Plan and Canada Health Act]".

44. Accordingly, the suggestion left in Canada's Report (p. 21, para. 83) and its answer to Question #16 in the 'List of Issues' that the repeal of CAP's condition and replacement by the CHST is somehow more "consistent with the division of responsibilities in the Canadian Constitution", is misleading insofar as it suggests that CAP improperly intruded into provincial jurisdiction, not to mention inconsistent with the Federal government's own pleadings before the Alberta Court of Appeal in Winterhaven.

 

Did CAP Have to be Repealed in Order to Cut the Deficit?

45. It is vitally important to understand that the removal of the legal protections and remedies which CAP had afforded was not, and could not be, justified by Canada as being a necessary part of fiscal restraint or deficit reduction. After all, in the area of social assistance, the move from CAP to the CHST simply represented a change in funding mechanisms from proportionate cost-sharing to block-funding. That is, rather than reimbursing the provinces (through CAP) for a fixed proportion of their social assistance expenditures, Canada has chosen (through the CHST) to limit its financial exposure by moving to a fixed block-fund of resources to the provinces.

46. The catch, however, is that in moving to an administratively more simple block fund cash transfer (of much smaller size) the government of Canada has dropped virtually all of the 'rights oriented' conditions in CAP.

47. The CHST combines the Federal funding programs for provincial health and post-secondary education and the Federal programs for social assistance and services (i.e., CAP) into one block grant: the Canada Health and Social Transfer. In terms of transfer payments to the provinces, the CHST simply represents a change in the cost-sharing formula; from a fixed percentage of provincial expenditures to a block-fund.

48. On the one hand, in the area of health care, the CHST remains a conditional cost-sharing vehicle in which the Federal government sets conditions regarding adequacy, comprehensiveness and universality which must be met by provincial health care programs if the provinces are to receive full federal funding. The Canadian Government makes much of the fact that the politically popular health care standards of the Canada Health Act were carried over and maintained in the CHST. This is so much the case that in a recent major policy speech to a House of Commons Committee, the Minister responsible for the CHST stated:

"The principles contained in the Canada Health Act - of access to care based on need, not income - are, for most Canadians, not simply sections of a piece of legislation. They virtually constitute a charter of rights".

 

49. With respect to social assistance on the other hand, the Canadian government has chosen to drop virtually all the conditions that had been in CAP. It no longer requires provincial governments to have any social assistance programs in order to receive full Federal funding, let alone ones which ensure a right to an adequate standard of living. Gone, too, are the other substantive and procedural protections which CAP had ensured throughout Canada. [The only remaining "standard" or right from CAP which has continued in the CHST is the prohibition on provinces imposing residency requirements on applicants for social assistance].

50. Along with the repeal of CAP's substantive protections, has been the revoking of the 'Finlay remedy' (referred to in para. 29 above) which provided a judicial remedy directly available to people who claimed provincial violations of the CAP rights.

51. The net effect for the poor in Canada from the repeal of CAP, has been:

1. The complete loss of the federal legal protections regarding entitlement to social assistance when in need along with the other CAP rights. The Federal Government's maintenance of the health care 'Charter of Rights' in the CHST is contrasted with a cynical and cruel jettisoning of legal protections and rights for the poor.

2. Related to the loss in (1) above, is an implicit degradation of the poor; the value of their citizenship and their social standing have deteriorated as has the legal recognition of their rights. Moves by the provinces toward treating social assistance as discretionary and social assistance recipients as unworthy are being seen with increasing frequency. This, in turn, feeds public resentment and stigmatization of the poor.

52. CAP's repeal was universally condemned by social policy analysts. The Canadian government's own advisory body on social welfare matters (the National Council of Welfare) stated that the repeal of CAP was "the worst social policy initiative undertaken by the federal government in more than a generation". It "marked a giant step backward in Canadian social policy... [by] ...dismantl[ing] a nation-wide system of welfare and social services that took a generation to build. Sadly, the policies of the 1990s would take us back to the 1950s".

53. The Caledon Institute, an independent body - frequently consulted and referred to by the Government of Canada - stated:

"The future of Canada's income safety net for the poor and its health care system for everyone is being traded off in the frenzy to please the Wall Street men in suits - who chalk up the numbers on a ledger but have absolutely no interest in the well-being of people, especially poor Canadians."

  1. Seen in these terms, the repeal of CAP which, as Canada stated in 1989, was "one of the major cornerstones of the social security system of Canada", represents a "deliberately retrogressive measure" in the domestic realization of the rights in the Covenant.

General Comment No. 3 (Fifth Session, 1990) E/1991/23, para.9 Limburg Principles, para.8

55. International human rights scholar, Professor Craig Scott of the Faculty of Law, University of Toronto, has written about the repeal of CAP and what it means for Canada's compliance with the Charter. Professor Scott states that when the repeal of CAP is considered in light of this Committee's General Comment No. 3 regarding the prohibition on "deliberately retrogressive measures", a violation of the Covenant becomes clear. This is especially the case where the repeal of CAP is a measure which results "in particularly vulnerable and disadvantaged groups being at greater risk than had been the case".

56. Professor Scott also argues that there is "a separate and strong legal argument that Canada has bound itself in good faith not to modify CAP in a way that lowers the protections it affords" due to the pattern of representations Canada has made to the Committee over the years about the place of CAP in protecting ICESCR rights.

RECOMMENDATION: CCPI strongly urges the Committee to: declare that the repeal of the protections in the Canada Assistance Plan is a violation of Canada's obligations under Articles 2, 9 and 11 of the Covenant. That the Government of Canada take immediate steps through amendments to the CHST or successor legislation to restore, at a minimum, those protections that were in CAP.

Employment Insurance

57. The other pillar of the Canadian social security system, alongside of CAP, has been the Unemployment Insurance program. Canadians had already been experiencing several rounds of cutbacks and restrictions to the national unemployment insurance program at the time of Canada's last appearance before the Committee in 1993.

58. Since 1993, however, there have been successive rounds of cuts to all facets of the program. In 1994, changes to the Unemployment Insurance Act increased by two weeks the length of time claimants must have worked to be eligible for benefits. The benefit rate for most claimants was reduced from 57% to 55% of insured earnings (by way of comparison, the benefit rate in 1971 was 75%; in 1977, it was 67% and in 1979 it was 60%).

59. In 1996, the program was renamed to Employment Insurance.

60. The maximum length of the benefit period has now been shortened from 50 to 45 weeks. People who have needed to claim benefits for more than 20 weeks during the previous five years will have their benefit rate lowered to between 50%-54% depending on the length of previous claims. This will negatively impact on people who can only find seasonal or part-time work.

61. The seemingly unending series of cutbacks to the availability of unemployment insurance benefits has produced some extraordinary outcomes:

62. Only 36% of unemployed workers qualify for benefits currently. This compares to 74% in 1989.

63. The dramatic tightening in eligibility requirements, reduction in benefit rates and shortening of benefit period have all combined to reduce benefit payouts. Prior to 1993, benefit payouts had always exceeded available revenues and the Employment Insurance fund was topped up from General Revenue. In these cases, the shortfall was borrowed from general government revenues and later paid back - with interest.

64. However, in the year of Canada's last review (1993), this situation turned around - in part because Canada was emerging from a recession. The Employment Insurance account (funded entirely from employer and employee premiums) was virtually balanced in 1993 and stood at $3.5 billion in 1994. By the end of 1998-'99 there is expected to be approximately $20 billion in the Employment Insurance account. In other words, there is no justifiable reason that the steep fall in the percentage of unemployed Canadians who are eligible for benefits (from 74% in 1989 to 36% now) cannot be remedied by expanding eligibility, increasing benefit rates and lengthening benefit periods.

65. Bearing in mind the massive size of the available resources in the employment insurance account, the appallingly low rate of eligibility is entirely inconsistent with Canada's obligations under Article 9 to make "social security" available for all in Canada.

RECOMMENDATION: CCPI urges the Committee to: find that Canada has violated the requirements of Articles 2 and 9 through its restrictions on the availability of unemployment insurance benefits.

PART III

THE CHARTER OF RIGHTS AS THE VEHICLE FOR PROTECTING SOCIAL AND ECONOMIC RIGHTS IN CANADA

66. As this Committee recognized in 1993, the most critical issue for the protection of social and economic rights in Canada is the interpretation of the Canadian Charter of Rights and Freedoms, enacted in 1982. The Committee recommended a "broad and purposive approach to the interpretation of the Charter so as to provide appropriate remedies to violations of social and economic rights".

67. As a Constitutional instrument, the Charter is effectively beyond the reach of governments determined to remove, rather than improve, legal protections. Accordingly, the Charter is the tool which the poor and other equality seekers are looking to in order to guarantee the legal protections contemplated by the Covenant.

68. The Supreme Court of Canada has consistently stated that the Charter of Rights is intended to protect the values of a free and democratic society. Two of the most important of these values "are respect for the inherent dignity of the human person...[and] commitment to social justice and equality".

69. Section 7 of the Charter is the primary vehicle for the respect, protection and fulfillment of human freedom and "basic human dignity".

 

70. Section 7 provides as follows:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

71. The Supreme Court of Canada stated in the case of Irwin Toy, that s.7 of the Charter should be interpreted as excluding corporate-commercial economic interests but indicated that this section of the constitution may well protect "such rights included in various international covenants as rights to social security, equal pay for equal work, adequate food, clothing and shelter. In other words, it has been acknowledged by the highest court in the land that section 7 of the Charter can be interpreted, as the Committee recommended, so as to provide effective remedies to violations of social and economic rights.

72. In fact, in its Responses to question #53 in the 'List of Issues' the Government of Canada and at least three provincial governments purport to endorse an interpretation of s.7 of the Charter which includes positive social and economic rights.

73. Stated simply, section 7 of the Charter is the lynch pin for constitutional protection of basic social and economic rights. That is why people in poverty, women, people with disabilities and others have been vigorously seeking to have s.7 interpreted consistently with the Covenant.

74. Similarly, s.15 of the Charter as the equality guarantee, carries enormous potential. This is because the Supreme Court of Canada has interpreted s.15 as being far more powerful than a constitutional prohibition on discriminatory government actions. Rather, the Court has said that the purpose of s.15 is to "promote equality" by finding a remedy for historical disadvantage experienced by vulnerable social groups. Thus, government actions which adversely effect the "substantive equality" of an historically disadvantaged group will violate s.15.

Survey of the Charter Caselaw

75. The similarities between the substantive rights in the Covenant and the promise of section 15 are clear. This makes a 'Covenant-consistent' interpretation of the Charter all the more significant, indeed profoundly important in this era of removal of legal protections.

  1. What follows is a survey of the Charter claims by the poor, by women and members of disadvantaged groups under ss. 7 and 15 of the Charter. These are primarily cases which the Committee has referred to in its 'List of Issues' and which are described in Canada's and the provinces' responses. A review of the caselaw will show, first, that this Committee is told one thing by Canadian representatives while Courts in Canada are told another by government lawyers. Second, it will show that the dismantling of legislated legal protections is paralleled in the Courts by vigorous efforts by all levels of government in Canada to have the Charter interpreted as excluding social and economic rights - even when the Supreme Court has recognized that it is quite possible to interpret the Charter to protect them. For the poor, government efforts on this latter front are as devastating as the repeal of statutory programs. Governments can be voted out of office, but the interpretation of the Charter of Rights defines the parameters of human rights protections in Canada. If our governments succeed in convincing the courts to reject an interpretation of the Charter that is consistent with the Covenant, we do not see how that loss can be reversed.

 

77. More than any other case since the enactment (in 1982) of the Canadian Charter of Rights and Freedoms, the Masse case squarely raised the question as to whether people living in poverty have their right to an adequate income protected in Canada's Charter of Rights. In Masse a large number of social assistance recipients filed claims under ss.7 and 15 of the Charter of Rights; they alleged that dramatic benefit cuts violated their right to "life" and "security of the person" under Section 7 of the Charter and violated their equality rights under Section 15 of the Charter.

78. The background to the Charter claim was that in June, 1995, a newly elected conservative government announced that it would fulfil a campaign promise to cut welfare rates by 21.6%. More than two thirds of social assistance recipients who were subject to the cuts were disabled, in ill-health or were sole-support parents. The reduction had its greatest impact in large urban centres such as Toronto where the cost of housing was extraordinarily high. In fact, the trial court had uncontradicted expert evidence from Dr. Michael Ornstein of the Institute for Social Research that the cuts would force 116,000 households from their homes, 67,000 of them single mothers with children. The Court also heard evidence from the Director of the Daily Bread Foodbank in Toronto that the cuts would create devastating hunger with which foodbanks would not be able to cope. Tragically, these predictions were correct. Homelessness has become of disastrous proportions in Toronto, with families with children being the fastest growing among them, and foodbanks were swamped in the year following the cuts.

79. There was other evidence which, in the Court's own words, detailed:

...the deprivation of poverty and, in particular, the problems of children living in poverty. 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.

80. The claimants submitted in argument the provisions of the Covenant and reviewed in detail the concerns and recommendations sent to Canada in 1993 with respect to the implementation of the Covenant in Canada.

81. Despite the startling evidence as to the effects of the cuts which it had before it, the Court dismissed the Charter claims. In three separate, but concurring judgements, the Court rejected out of hand the claimant's position that the Constitution of Canada protects an individual's right to an adequate standard of living:

Section 7 [of the Charter] does not provide the applicants with any legal rights to minimal social assistance. The legislature could repeal the social assistance statutes... . In my view, s.7 does not confer any affirmative right to governmental aid... . [M]oreover, there is no reason in law why the Government of Ontario must so provide.

82. All three judges agreed with the view that no government in Canada has a constitutional obligation to alleviate poverty. The Court failed entirely to address the claimant's argument that the Charter should be interpreted in a manner consistent with the Covenant.

83. With respect to the claim by social assistance recipients that the profound cut in rates violated the right to equality in s.15 of the Charter, the Court found that the recipients were not an "historically disadvantaged group" so as to make the protections of s.15 of the Charter available to them.

84. Justice O'Driscoll summed up the Court's dismissive attitude toward Charter claims which would require government to take any positive steps to alleviate poverty by quoting from a United States Supreme Court decision:

The intractable economic, social and even philosophical problems presented by public welfare assistance programs are not the business of the Court.

85. This reluctance to even subject social programs to Charter scrutiny is a recurrent feature of the caselaw.

86. In coming to these conclusions concerning the applicability and scope of the Charter's protections and the duties (or lack thereof) which it places on governments, the Court had been encouraged and supported by the pre-hearing submissions of counsel for the Province of Ontario. In its arguments, the government had argued that s.7 of the Charter does not even apply in the area of social and economic rights because poverty is not something which government is constitutionally responsible for causing or alleviating. Therefore, the application of the Charter is not even triggered. The Court summarized counsel's argument in the following terms:

In connection with the Charter arguments, the respondents [counsel for the Ministry] argue that the plight of welfare recipients, although urgent and serious, relates to their inability to provide for themselves. That inability does not arise from government activity and hence under s.32 of the Charter, the Charter is not applicable. They argue the effect of the provincial welfare legislation and its regulations is to alleviate the problems and financial burdens of those in need by providing financial "last resort" benefits.

They argue that while poverty is a deeply troubling social problem, it is not unconstitutional. They also take the position that there is no right to social assistance nor to a minimum standard of living under s.7.

- and (the Court continued) -

I agree with the statement in the Respondents' factum at paragraph 79:

...Where the legislative act is admitted to ameliorate the condition of a class of individuals, that act cannot be said to simultaneously deprive the class of liberty or security of the person.

87. In the last six years, the Courts of Appeal in five other provinces have considered issues similar to those raised in Masse and without exception, rejected any such submission.

88. Thus in Conrad the Nova Scotia courts held that even for those living in poverty and who are eligible for social assistance, s.7 of the Charter provides no constitutional protection of their right to income support. Government counsel had argued that s.7 of the Charter merely served to restrict or "fence-in" government actions. It imposed no obligation on government to act or ensure that social assistance was available to people in need. Government counsel stated:

The Charter does not establish a right to receive the services of the welfare state as established through public policy. The "Security of the person" does not extend to the right to expect that each individual will be protected from the vicissitudes of nature or the political and economic system. The individual is protected from the state and is not granted the positive right to be afforded protection by the state.

- and -

The rights protected by Section 7 of the Charter are those which protect the citizen from the machinery of the state. They do not guarantee that a benefit, no matter how essential, will be conferred if certain conditions are met.

89. It is striking to compare these bold statements with the Responses to Question #53 in the 'List of Issues' where Nova Scotia states that an interpretation of s.7 of the Charter which is consistent with the rights in the Covenant "remains the position of Nova Scotia".

90. In New Brunswick, the Court of Appeal recently ruled in the Godin case that a parent's request for state-funded legal counsel to assist her in a child protection proceeding was beyond the scope of section 7 of the Charter. To have allowed the claim would be to enter upon a "legislative policy making function and not a Charter question". The Court came to this conclusion in the face of evidence that a sole-support parent was facing the prospect of a three day trial with evidence from 18 witnesses, including three experts.

91. In the Province of Manitoba, the Court of Appeal considered the claim of Eric Fernandes under s.7 of the Charter. Fernandes suffers from Burke's muscular atrophy, a neuro-muscular disorder. With the use of an electric wheelchair and an attendant he is able to reside at home and he neither wants nor needs hospitalization to deal with his condition. Up to the point of his claim, the necessary attendant care had been provided by his girlfriend. When that relationship came to an end, he applied to Manitoba social services to cover the cost of an attendant to permit him to live a normal life. They refused to do so. At that point, Fernandes' only option was, as the Court of Appeal described it, to become "a social in-patient" at the hospital.

92. Fernandes claimed that his rights to "life", "liberty" and "security of the person" in s.7 of the Charter were violated by the refusal to provide him with attendant care which would have allowed him to remain in the community. In its decision, the Court of Appeal rejected the Charter claim holding that it was beyond "the ambit of s.7 of the Charter". This was an adoption of government counsel's argument:

With respect to the remaining two interests in s.7, liberty and security of the person, it is the submission of the Respondent and of the Attorney General that these concepts cannot be interpreted so broadly as to include the relief requested by the Appellant.

 

93. The Court described Fernandes' desire to live at home rather than as a "social in-patient" at the hospital as a "personal choice". As in the Ontario case of Masse, the Court absolved the government of any responsibility to take steps to alleviate Fernandes' condition. It cited his pre-existing poverty, medical condition and the limited availability of community resources as the "cause" of his situation as opposed to something which government had brought about. Like the Court in Masse, the Manitoba Court appeared to have been oblivious to the notion of any positive legal obligations on government to take steps to alleviate disadvantages relating to poverty.

94. In the province of British Columbia, Courts have consistently held that Section 7 of the Charter provides no constitutional support for the kinds of social and economic rights referred to in Articles 9, 11 and 12 of the Covenant. Most recently in 1996, section 7 was argued in a case where newcomers to the province were prohibited by regulation from being granted any social assistance whatsoever until they had lived in the province for three months. The evidence before the Court included the claimant's being homeless and hungry. Despite this, the Attorney General (Respondent) argued:

The Respondents submit that "life, liberty and security of the person" does not include the right to Income Assistance, which is an economic interest unrelated to the justice system. Accordingly, the Residency Requirement cannot have constituted a deprivation of "life, liberty and security of the person" for purposes of s.7 of the Charter.

95. Finally, in the province of Quebec, the provincial Supreme Court in Gosselin rejected a claim by a recipient of a manifestly inadequate social assistance allowance ($170/mo.) that the protection of "life" and "security of the person" in s.7 of the Charter included a right to social assistance, let alone adequate social assistance. The Court ruled that s.7 of the Charter did not protect any social or economic needs.

96. It is now clear that in all of the cases reviewed, each judicial decision came after vigorous argument from government counsel that the scope of s.7 of the Charter ("everyone has the right to life, liberty and security of the person") should be construed narrowly. It should be interpreted, they argue, so as to cover only criminal proceedings or ones which involve restrictions on physical liberty. The Attorneys General invariably argue that s.7 of the Canadian Charter of Rights should be construed to exclude social and economic rights such as Canada has legally bound itself to implement in Articles 9 and 11 of the Covenant.

Canadian Representations to the United Nations about the Scope of S.7

97. The consistently narrow and restrictive interpretation of s.7 of the Charter is completely at odds with what this Committee was told about section 7 in 1993.

98. In its last appearance before this Committee at its Eighth Session (1993), a representative of the Canadian Government stated:

 

While the guarantee of security of the person under Section 7 of the Charter might not lead to a right to a certain type of social assistance, it ensured that persons were not deprived of the basic necessities of life.

99. [It should be noted that the Human Rights Committee of the UN was informed by the Government of Canada (in response to a question by the Committee as to whether S.7 of the Charter imposed on the State the obligation to take socio-economic measures to protect the right to life) that: "Article 6 of the Covenant requires Canada to take the necessary legislative measures to protect the rights to life. These measures ... may relate to the protection of the health or social well being of individuals. However, it should be noted that this Article only imposes minimum requirements".]

100. The responses filed by the Federal and Provincial Governments of Canada to Question #53 in the "List of Issues" forwarded to Canada by the Pre-Sessional working group are profoundly significant. The government of Canada and at least, the provincial governments of Alberta, New Brunswick and Nova Scotia all indicated their position that s.7 of the Charter includes protection of an adequate income to meet basic necessities as set out in Article 11 of the Covenant.

101. The disparity between what this Committee and other UN bodies are told in their review of Canada and what low-income people in Canada hear from government lawyers in Court is startling.

RECOMMENDATIONS: CCPI urges the Committee to: recommend that the Government of Canada and provincial governments adopt a litigation approach in social or economic cases under s.7 of the Charter of Rights that is consistent with Canada's positive obligations under the Covenant to people in need.

CCPI urges the Committee to: remind Courts in Canada, especially lower courts, of the need to be cognizant of the ICESCR and the rights in it. The Committee recommends that Courts construe s.7 of the Charter in a manner that locates a positive obligation on governments to provide social assistance to all persons in need.

The Equality Guarantee in S.15 of the Charter

102. The same narrow and restrictive interpretation which governments are arguing with respect to s.7 is happening in cases involving the equality guarantee in s.15 of the Charter.

103. In the recent Ontario case of Ferrell, the issue was whether legislation which repealed an employment equity scheme violated the Charter.

104. The repealed program had recognized the historical disadvantage experienced by women, visible minorities, people with disabilities and Aboriginals in obtaining employment and attempted to rectify the historical exclusion of these groups from employment.

105. Several members of disadvantaged groups challenged the government's repeal under the equality guarantee (s.15) of the Charter. Several NGO's intervened in the litigation.

106. The Court dismissed the claim. It interpreted the Charter rights generally, and s.15 in particular, as being concerned with scrutinizing situations where government takes positive action. The equality guarantee in the Charter according to the Court in Ferrell, does not place any obligations on governments to take positive steps to actually do anything ab initio. Rather, it is restricted to examining actions once governments choose to act.

The application of the Charter must be confined to government action as opposed to inaction. Given societal systematic discrimination, such inequality is not of the government's creation, it is a societal problem, one which the government may well address but which it is under no obligation under the Charter to do so.

107. This quotation from Ferrell typifies the judicial reasoning seen in all the social and economic rights claims reviewed earlier under s.7 of the Charter. Such an interpretation, of course, is entirely inconsistent with the Covenantís recognition of many substantive social and economic rights with corresponding obligations on the state. Articles 2 and 11 expressly impose obligations on governments to ensure the realization of the rights in Articles 9 and 11 through, in particular, "the adoption of legislative measures", and not to take deliberately retrogressive measures in the progressive realization of the rights in the Covenant.

Eldridge v. British Columbia (Attorney General)

108. The first case with a strong component of social and economic rights to be considered by the Supreme Court of Canada in a Charter claim was the Eldridge case, addressed by the Committee in the List of Issues (# 6). The Court's ruling suggests that in fact there is no justification for the narrow approach to Charter interpretation advocated by our governments and adopted by lower courts with respect to social and economic rights claims.

109. The appellants in the Eldridge case, Robin Eldridge and John and Linda Warren, were deaf residents of British Columbia, who communicated by sign language. All had experienced problems within the provincial health care system because of their inability to communicate with health care providers in the absence of interpretation services. Mrs. Warren, for example, underwent an emergency delivery of her twin daughters without being able to communicate with the physician or nurses during or after the delivery, because sign language interpretation was not available in the hospital.

110. Until 1990, free medical interpretation services had been provided in British Columbia by the Western Institute for the Deaf, a private non-profit agency. In 1990, the Institute discontinued the service due to lack of funds; the provincial health ministry having refused the Institute's request for financial assistance. In an application commenced in the British Columbia Supreme Court, the appellants claimed that the failure to provide sign language interpretation services under the provincial Medical and Health Care Services Act and Hospital Insurance Act violated their Charter right to equality without discrimination based on physical disability.

Lower Court Decisions

111. At trial, Justice Tysoe characterized sign language interpretation as an "ancillary" rather than a medically required service which, like transportation to and from the doctor's office, was not included under the B.C. medical insurance scheme. Justice Tysoe acknowledged that the government's failure to fund interpretation services limited the access of the Deaf to the medical system. However, in Justice Tysoe's view this limitation was not the direct or indirect result of provincial legislation, but rather existed independently of the Act. As Justice Tysoe saw it:

... the Charter does not place an affirmative obligation on the governments to implement programs to assist disabled persons ...

112. Writing for a majority of the B.C. Court of Appeal, Justice Hollinrake also took the view that the Medical and Health Care Services Act treated the Deaf and the hearing the same, inasmuch as "the legislation provides its benefit of making payment for medical services equally to the hearing and the deaf." In Justice Hollinrake's opinion, any inequality which resulted from the fact that the Deaf remain responsible for the cost of interpretation services in order to receive equivalent medical services, "exists independently of the legislation and cannot be said in any way to be an effect of the legislation."

Arguments of the Attorney General of B.C. (Respondent), and of the A.G. Interveners

 

113. At the lower court level and before the Supreme Court of Canada, the Attorney General of B.C. argued that the health and hospital insurance regime in British Columbia was not in violation of section 15 of the Charter because the medicare system afforded the same treatment to the Deaf and hearing alike. As the Attorney General characterized it: "[I]t is a system in which a broad level of coverage is provided to all, but all are also subject to having to pay for services that are not within that broad range. This is not discriminatory."

114. The Attorney General of B.C. also argued that any disadvantage suffered by the Deaf in British Columbia was owing, not to provincial health and hospital insurance legislation, but to their deafness. Rather than imposing a disadvantage, the Attorney General asserted, the provincial medicare scheme provided a benefit: access for all B.C. residents to medical and hospital services free of charge. The Attorney General went on to claim that benefit-conferring legislation should only be found discriminatory if it "widened the gap" between a disadvantaged group and others, and that since the Deaf were no worse off than before the introduction of universal medicare in B.C., no violation of section 15 of the Charter had occurred. In other words, the government argued the opposite of progressive realization - there is no obligation to move toward the alleviation of disadvantage, just an obligation not to make things worse.

115. The Government of Canada intervened to support the Government of British Columbia. It argued that the denial of interpreter services was discriminatory, but that it was justifiable because it was a matter of allocating scarce resources - a matter which should be left up to legislatures. Such an argument, of course, is completely inconsistent with this Committee's General Comment No. 5, which recognizes that respecting the rights of people with disabilities will frequently require the allocation of resources.

116. The Supreme Court of Canada rejected the approach to the Charter and to equality rights promoted by the Government of British Columbia with the support of the Government of Canada and most of the provinces. The Court noted that:

In their effort to persuade this Court otherwise, the respondents and their supporting interveners maintain that section 15(1) does not oblige governments to implement programs to alleviate disadvantages that exist independently of state action. Adverse effects only arise from benefit programs, they aver, when those programs exacerbate the disparities between the group claiming a section 15(1) violation and the general population. They assert, in other words, that governments should be entitled to provide benefits to the general population without ensuring that disadvantaged members of society have the resources to take full advantages of those benefits.

In my view, this position bespeaks a thin and impoverished vision of section 15(1). It is belied, more importantly, by the thrust of this Courtís equality jurisprudence. ((1997) 151 D.L.R. (4th) 577 (S.C.C.)

 

117. As a State Party to the Covenant, Canada has an obligation to promote the rights in the Covenant and to ensure the provision of effective domestic remedies. The Court in Eldridge permits the broad and expansive interpretation recommended by this Committee in 1993, so as to achieve consistency with the Covenant. Yet at every juncture when substantive issues regarding a positive entitlement to social assistance or related benefits has arisen, the Attorneys General and the Courts have steadfastly opposed the recognition of such rights in the Canadian Charter. The Ferrell case illustrates the application of this reasoning in situations where Government repeals existing protective legislation.

Baker v. Canada

118. Most recently, at the Supreme Court of Canada in a case that was heard in the last 10 days and for which no decision has been released, government counsel has sought again to restrict the reliance on the Covenant.

119. In the case of Mavis Baker, an immigrant woman from Jamaica with four Canadian children was found to have overstayed her visa and was ordered deported. Baker requested the Minister of Immigration to exercise her discretion (as it is conferred by the Immigration Act) to permit her to stay in Canada. The issue before the Court is whether, in exercising her discretion, the Minister is bound to do so in a manner which complies with Canada's International human tights obligations and, in particular, the Convention on the Rights of the Child ("CRC"). Baker and a number of intervenors (including CCPI) argued at the Supreme Court of Canada that Canada has bound itself to implement the protections of the Covenant in Canadian law including in the exercise of administrative discretion. Accordingly, consideration of the Covenant and the rights protected in it is not just appropriate but expected.

120. This argument has been vigorously opposed by government counsel. Among other points, they argue that the CRC does not apply as it has not been formally adopted; even if it does apply there is no expectation that its administrative officers exercising discretion are required to give more priority to the norms in the Convention.

RECOMMENDATIONS: CCPI urges the Committee to: recommend to Canada that government counsel (both federal and provincial) promote an analysis of s.15 of the Charter which is consistent with the obligations on Canada to take positive steps to ensure the substantive protections in the Covenant.

CCPI urges the Committee to: note the positive interpretation of the Equality guarantee in s.15 of the Charter which recent Supreme Court of Canada decisions (such as Vriend and Eldridge) have relied on. This approach to equality permits section 15 to act as an important avenue for achieving domestic protection of the rights in the Covenant; consistent with the obligations on State Parties under the Covenant to take positive steps to alleviate disadvantage. The Committee ought to find, however, that governments have not acted in good faith with respect to their obligations under the Covenant when they have argued against a consistent interpretation, and remind Canada that it has an obligation to promote the rights in the legal realm, as well as in the area of public policy.

 

PART IV

SOCIAL AND ECONOMIC RIGHTS IN THE COVENANT AND 36(1) OF THE CONSTITUTION ACT, 1982

121. At the same time as the Charter of Rights was proclaimed into Canadian law, other changes to the constitution also came into force. This is the case with section 36 of the Constitution Act, 1982. Section 36(2) deals with a commitment by the federal governments to 'equalize' on a per capita basis the revenue available to the poorer provinces so that they may be able to offer 'reasonably comparable public services'.

122. However, s.36(1) is directly relevant to the interests of this Committee. It is a joint constitutional commitment by the federal and provincial governments to individual Canadians:

36. (1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to:

(a) promoting equal opportunities for the well-being of Canadians;

(b) furthering economic development to reduce disparity in opportunities; and

(c) providing essential public services of reasonable quality to all Canadians.

123. In complying with the Covenant requirement to file periodic reports which describe domestic implementation of the rights in the Covenant, Canada has , in fact, frequently directed the Committee's attention to s.36(1) of the Constitution Act, 1982 in the context, inter alia, of Article 11: the right to an adequate standard of living. The report filed in December, 1982, again made reference to s.36 in its overview of Canada's legal efforts at the implementation of articles 10-12. In December, 1987, Canada cited s.36(1) in its report on domestic implementation of articles 6-9. In its second report on the implementation of articles 10-15 (September, 1992) Canada referred to s.36(1). The supplementary oral submissions made by Canada's representatives to the Committee's hearings characterized the obligation arising under s.36(1) in the following terms:

The 1982 Constitution Act made it a duty of the federal government and all provincial and territorial governments to... provide essential services of reasonable quality to all Canadians (emphasis added).

124. It is entirely consistent with principles of Canadian constitutional interpretation for s.36(1) to inform the interpretation of Charter sections 7 and 15. In light of this, it is inconsistent with their obligations arising under the Covenant (not to mention their oral submissions to this Committee) for government lawyers in Canada to refuse to promote a reading of section 7 of the Charter which imposes positive duties on governments to protect social and economic rights.

125. Moreover, in light of Canada's own reliance on s.36(1) in its reports, the provision should itself be relied on by provincial governments and the Courts to locate a Constitutional obligation on these governments to implement the social rights in the Covenant. This approach would entirely be consistent with what the Government of Canada has argued in defending the setting of standards under the Canada Assistance Plan which was under attack by a transfer in Winterhaven Stables.

126. It is submitted that, among its Concluding Observations, this committee should include a recommendation to the Governments of Canada to use s.36(1) in litigation so as to found a constitutional obligation on governments to provide social assistance and other "essential public services of reasonable quality".

RECOMMENDATION: CCPI urges the Committee to recommend that: the Federal and provincial government should consider referring to and rely on s.36(1) of the Constitution Act, 1982 in order to support not just a positive rights approach to ss. 7 and 15 of the Charter, but also a free-standing commitment by both levels of government to provide "essential public services of reasonable quality".

PART V

CANADIAN IMPLEMENTATION OF ARTICLES 9 AND 11 APART FROM CONSTITUTIONAL LEGISLATION

127. While all provinces and territories have some form of social assistance program, there remain extremely important issues regarding the scope of legislative entitlement to assistance and the adequacy of the benefits provided.

128. In at least two provinces in Canada, the provision of social assistance is entirely discretionary, even for people who are in need and have met all eligibility criteria.

129. In the province of Newfoundland, the Courts refused the claim of an elderly couple for social assistance to cover the cost of their continued stay in a nursing home. Thus, in Rose the trial Court accepted the submission of government counsel who had pointed out that there is no statutory right to basic social assistance in the first place:

Counsel for the Respondents [Minister of Social Services] also correctly submits that social assistance is not automatically available to anyone who applies for same.

130. An appeal by Herbert and Nattie Rose was dismissed. The Newfoundland Court of Appeal upheld the interpretation of the trial judge to the effect that even if a person meets all eligibility conditions, it is for the Departmental official to decide "in his discretion [whether] to grant or refuse social assistance out of the funds appropriated by the Legislature".

131. Similarly, people in need who live in British Columbia have recently seen their social assistance legislation completely overhauled. These changes are referred to in the British Columbia section of Canada's report (at p. 94, para. 460). Despite these reforms, basic social assistance continues to be granted on a completely discretionary basis. This has been noticed previously by the Courts and is consistently cited by government counsel when an entitlement to assistance is claimed by people in need. The following is from the submissions of government counsel in a 1996 case from British Columbia in which newcomers to that province who were refused all assistance regardless of the existence of need challenged the Regulation under s.7 of the Charter:

 

The Gain Act does not create a right to Income Assistance based on need. The Minister's exercise of his or her powers under s.2(1) is discretionary; the Minister may pay, from funds authorized by an Act of the Legislature, money which "in his discretion he considers advisable", subject to the Act and Regulations (emphasis in original).

- and -

The question of whether to pay benefits at all and, if so, in what amounts are therefore matters lying entirely within the Minister's discretion.

132. Simply stated, in at least these two provinces, there is neither a Constitutional nor statutory right to an adequate income/social security within the meaning of Articles 9 and 11.

RECOMMENDATION: CCPI urges the Committee to: recommend that Canada be found in violation of the Covenant inasmuch as there are at least two provinces in Canada (Newfoundland and British Columbia) which do not have legislation creating a right to social assistance for people in need.

  

The Right to Social Assistance and the Right to an Education

133. Social Assistance programs in Canada are frequently preoccupied with moving recipients off their roles - often at the cost of neglecting other considerations and rights. The Kerr case illustrates this dynamic well.

134. Shelly Kerr was a 20-year old woman who had only completed school to grade 11 in June of 1988 when she left home because of family problems [in the province of Ontario, secondary education is completed after grade 12], Having no money or a place to live she got a part-time job as an office clerk. She later obtained a full-time job as a clerk in a freight company. Realizing the need to finish her secondary education she left her job after three months to go back to school full-time. She applied for social assistance in order to have the basic necessities while completing high school. Her application was turned down on the rationale that she was not disabled and ought, therefore, to be looking for work.

135. She appealed the decision to a social assistance appeal board. She stated simply: "I don't have my grade 12 and maybe I am employable but I do not want to remain at this level for the rest of my life".

136. Her case went to the initial level of appeal and ultimately wound up at the Ontario Court of Appeal. She lost. The Court carefully considered her situation and the applicable legislation. The Court of Appeal commented about her goals in the following terms:

The Respondent's desire to upgrade her education is admirable. Both the Board and the Divisional Court were impressed, and justly so, with her determination to finish high school.

137. The Court's interpretation of the General Welfare Assistance Act and Regulations was that there was no authority in the legislation to provide assistance to a person who sought to complete their secondary education.

138. It is submitted that the obviously short-sighted approach of the legislation has failed entirely to accommodate Kerr's entitlement to an education and society's interests in having her complete high school. This cannot be in accordance with the rights in Articles 9, 11 and 13 of the Covenant.

 

PART VI

EXPANSION OF HUMAN RIGHTS LEGISLATION TO INCLUDE SOCIAL AND ECONOMIC RIGHTS

139. In its concluding observations of 1993 the Committee recommended that human rights legislation in Canada be expanded to include explicit reference to social and economic rights (para. 111).

140. This recommendation, like all of the other recommendations of the Committee, has been completely ignored. The Chief Commissioner of the Canadian Human Rights Commission recommended, in last year's Annual Report, that human rights legislation be expanded to include social and economic rights but there has been no response from government to that recommendation.

Recommendation: The Committee should question Canada on why there has been no follow-up on this recommendation and support, in its recommendations, the recommendation of Canada's Chief Human Rights Commissioner that social and economic rights be included in human rights legislation.

 

Broad and Purposive Interpretation of Human Rights Legislation in Order to Provide Appropriate Remedies to Violations of Social and Economic Rights

141. The Committee recommended at paragraph 119 that courts take a broad and purposive approach to the interpretation of human rights legislation so as to provide appropriate remedies to violations of social and economic rights in Canada. There has, to our knowledge, been no decision under human rights legislation in Canada since 1993, which refers to the Covenant or explicitly acknowledges the need for consistent interpretation. There have been numerous human rights complaints filed which seek redress to human rights violations causing homelessness and hunger, but Human Rights Commission in Canada have generally prevented such cases from proceeding to tribunals or to courts.

Human Rights Commission as "Gatekeepers"

142. Canada has a unique system of human rights enforcement which, in our submission, is inconsistent with international standards of the rule of law and the right to an effective remedy. A person who alleges that a right under human rights legislation has been infringed may file a "complaint" with a provincial or federal "Human Rights Commission". The Commission is charged with investigating the complaint and with seeking to settle it. However, at the end of that process, which in many cases lasts many years, the Commission has the discretion as to whether to proceed with the complaint to a human rights tribunal. This is consistent with other human rights regimes, such as those in the United States, the U.K., and others.

143. What is aberrant about the Canadian system, (outside of Quebec) however, is that if the Human Rights Commission exercises its discretion not to proceed, the complainant is barred from proceeding on his or her own. The Commission does not have the authority to determine if a right has been infringed, but has the authority to prevent a complainant from proceeding to a tribunal where that authority resides.

144. As the Committee members will see from the responses of the various governments to its Question #10 in the 'List of Issues', Human Rights Commissions only allow a tiny fraction, in the area of 1 - 4% of complaints to go ahead. The rest simply die with the Commission, either withdrawn or abandoned because of years of delay, or dismissed.

145. The result is that most discrimination in Canada is not challenged. Where it is challenged, usually nothing is done about it.

146. Human rights tribunals outside of Quebec have rarely had the opportunity, since the Committee's recommendations, to consider human rights claims in the social and economic domain, because Human Rights Commissions have adopted the narrowest interpretation. In Ontario, the Commission was explicitly instructed by a Committee of the Ontario Legislature to dismiss more complaints in order to reduce the workload. The Ontario Human Rights Commission now proceeds to tribunals in about 1% of cases filed. The rest are never adjudicated. Decisions of Human Rights Commissions are made behind closed doors, minutes are confidential and parties are not permitted to attend.

RECOMMENDATION: The Committee should express concern that human rights legislation outside of Quebec does not adhere to basic international principles of the rule of law and the right to effective remedies. Further, the Committee should express concern that human rights enforcement in Canada seems to be generally acknowledge to be completely inadequate, even by Human Rights Commissions themselves. The Committee should recommend a complete overhaul of human rights protections in Canada, both in terms of substantive protections and in terms of enforcement provisions.

The Committee should also express concern that Human Rights Commission are not promoting a broad and purposive interpretation of existing human rights legislation and failing to address the important issues of poverty and systemic discrimination.

Widespread Discrimination in Housing

147. The Committee also expressed concern In 1993 about evidence of widespread discrimination in housing against people on social assistance, people with low incomes and people who are indebted.

148. The Committee was responding to evidence submitted by the Centre for Equality Rights in Accommodation (CERA), that the majority of landlords refuse to rent to social assistance recipients and utilize "income criteria" to disqualify low income applicants for apartments. They also disqualify applicants on the basis of "credit checks" so that if someone happens to owe money to a department store, they become ineligible for housing. Such practices are common in both the private market, where most low income households live, and in social housing.

149. Since the Committee's expression of concern in this regard, CERA proceeded with a major case against private landlords in Ontario. Extensive evidence was called about the Committee's concern. Scott Leckie from the Centre on Housing Rights and Evictions provided expert testimony to the human rights tribunal about the Committee's interpretation of the right to adequate housing, and also about its review of this issue in 1993. The tribunal has not yet released a decision after lengthy hearings, but many expect the tribunal to find that the practices condemned by this Committee are contrary to the Human Rights Code.

150. However, the Government of Ontario has sought to pre-empt the Tribunal's ruling. It introduced in 1997 a proposed amendment to the Human Rights Code authorizing the use of "income information" and "credit information" in the selection of tenants. The government appointed Chief Commissioner of Human Rights spoke out publicly against this amendment, saying it would leave deny many low income households access to decent housing and effectively remove protection from discrimination because of receipt of public assistance from the Code.

151. These concerns were brought to the attention of this Committee in the Government's Periodic Report filed in May, 1997. However, when higher-level government officials in Ontario learned that the Committee had been provided with this information, Ontario insisted that Canada withdraw the Report. The Report that was filed six months later had erased any reference to this issue.

152. There was extensive opposition to the proposal, but the Government passed it anyway in June, 1998.

153. The Government of Ontario also eliminated all funding to the Centre for Equality Rights in Accommodation as of 1997. CERA handles the majority of human rights complaints in housing in Ontario and had relied on the Government of Ontario for 90% of its funding for this work.

RECOMMENDATION: The Government of Ontario should be found to have violated the Covenant in revoking protections from income discrimination in housing and that Canada and Ontario should be found to have acted in bad faith by suppressing from Canada's Report the concerns of the Chief Commissioner of Human Rights as to the effect of these changes.

The Protection of Social and Economic Rights in Human Rights Legislation

154. In its 1993 Concluding Observations (para. 25) this Committee recommended "the incorporation in human rights legislation of more explicit reference to social, economic and cultural rights". On June 9, 1998, the Canadian Senate unanimously passed Bill S-11, which would amend the Canadian Human Rights Act to include "social condition" as a prohibited ground of discrimination under federal human rights law. Bill S-11 has since been tabled in the federal House of Commons as a Private Member's Bill, and will be tabled for second reading in the House on November 17.

155. The current federal Justice Minister has refused to support Bill S-11, thereby severely reducing the Bill's chances of becoming law. The Justice Minister and the federal government have opposed the Bill in spite of the clear testimony, before the Senate Committee which studied the Bill, of people living in poverty, that they continue to suffer discrimination by banks and other financial service providers, by federally regulated industries such as telephone and cable television companies, in the broadcast media, as well as under federal government laws and policies. The testimony of low-income witnesses and anti-poverty groups was supported by legal experts, who argued that the continuing failure to amend Canadian human rights law to provide express human rights protection for the poor violates the Canadian Charter and the international human rights norms, including under the Covenant.

Wiebe v. Ontario - Children Relinquished to Foster Care (Issue No. 13)

156. The Wiebe case was unusual in Canada because it was one which was the subject of review by this Committee prior to its consideration by a Human Rights Commission in Canada.

157. It was a complaint filed June 12, 1989 by a family of 7 which had to voluntarily relinquish 4 of their children to temporary foster care after they were evicted from their home and unable to find alternative accommodation. Social Services refused to provide any special assistance to allow them to stay in a motel unit while they searched for alternative housing. The Wiebes voluntarily relinquished their children when they were forced to live in a friend's unheated garage, and then to sleep in their van. They had their children returned three months after relinquishment when they were loaned a tent-trailer by the Children's Aid Society.

158. The Wiebes' complaint, filed by the Centre for Equality Rights in Accommodation, alleged that in failing to set social assistance rates at a level of adequacy for large families, and in refusing to provide any special emergency assistance for housing when the Wiebes were forced to live in a garage in cold weather, the Government of Ontario violated the obligation under the Human Rights Code to accommodate, short of "undue hardship", needs of groups protected under the Code - in this case large families in receipt of social assistance.

159. The submissions submitted by CERA on behalf of the complainants made extensive reference to this Committee's review and to its recommendations that human rights legislation be interpreted expansively so as to provide appropriate remedies to violations of the Covenant.

160. The Human Rights Officer's Report, submitted to the Human Rights Commission, stated:

The complainant raised other issues related to an adequate standard of living, lack of affordable housing and lack of appropriate childcare arrangements. After various pieces of legislation, including the Universal Declaration of Human Rights(1948), the International Covenant on Economic, Social and Cultural Rights (1966), and the Canadian Charter of Rights and Freedoms. These issues do not appear to fall within the jurisdiction of the Commission.

161. The Human Rights Commission made its final decision to exercise its discretion not to proceed to a tribunal on February 16, 1996, almost seven years after being filed. The Commission's reasons made no reference to the Covenant. At that time, the Government of Ontario had cut social assistance rates by 21.6%.

PART VII

THE SOCIAL UNION AND THE RIGHTS IN THE COVENANT

162. The legislation which repealed CAP and replaced it with the CHST contained a provision which contemplated future discussions between Federal and Provincial governments on issues of social policy.

163. These discussions and on initiative by the Provincial governments have become known as the "Social Union" negotiation. They are seen as the 'social' dimension to the "economic union" occurring in Canada. The discussions are referred to in the Report of Canada (p. 21, para. 86).

164. While it is known that the discussions concern the future of social policy, hardly anything else is known as the meetings are held completely behind closed doors. The occasional news release from the parties attending the meetings makes clear that the federal and provincial governments are attempting to arrive at a consensus concerning "principles and objectives" or values which will inform not just Federal-Provincial fiscal transfers but programming in matters relating to social and economic rights.

165. Given the clear retreat by both levels of government from the implementation of the rights in the Covenant, CCPI requests this Committee to express its clear disapproval for the regression of the past five years and issue a strongly worded recommendation that the outcome of the Social Union discussions should contain legally enforceable protections - especially in the areas covered by Articles 6, 9, 11 and 12 of the Covenant.

RECOMMENDATION: CCPI urges the Committee to: recommend that the government of Canada strive to ensure that the legal protections in CAP, such as the right to income when in need, the right to a level of assistance which takes into account basic requirements and the right to appeal decisions affecting the right to or level of assistance, is included in any agreement with the provinces pursuant to the Social Union negotiations.

 

 

DATED at Halifax, Nova Scotia, this 13th day of November, 1998.

 

VINCENT CALDERHEAD

Solicitor for the Charter Committee on Poverty Issues

 

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