Canada’s Supreme Court sanctions dismantling of welfare

By Keith Jones
27 December 2002

Canada’s Supreme Court has ruled that the state has no legal obligation to assist the poor—even if they have been rendered homeless and hungry.

In a ruling issued December 19, Canada’s highest court rejected a Quebec woman’s claim that her constitutional rights had been violated during the late 1980s when she was forced to subsist on a welfare stipend of between $163 and $170 per month.

Louise Gosselin’s class action suit claimed that the Quebec government had violated the guarantees in Canada’s Charter of Rights and Freedom to “life, liberty and security of the person” and against discrimination when it provided single youth with a monthly welfare stipend that left them without life’s bare necessities and which was far below the $448 a month paid persons aged 30 or more.

Faced with a sharp increase in Quebec’s welfare rolls as a result of the recession of the early 1980s, the Parti Québécois provincial government changed Quebec’s welfare regime in 1984. Single welfare recipients under 30 had their benefits cut by more than 60 percent unless they enrolled in a job-training scheme or performed “community service.” As there were spaces in the various government schemes for little more than a third of those who fell under the new welfare rules, tens of thousands of young people had their benefits slashed. Many ended up on the streets.

In 1989, as result of widespread protests against the discriminatory welfare rules, as well as an improving economy, the Liberals, who had returned to power in Quebec four years before, abolished the different welfare regime for single youth

However to this day, welfare recipients in Quebec deemed “able to work” are harshly penalized unless they participate in a workfare scheme. And across Canada, provincial governments have followed Quebec’s example in tying the value of welfare benefits—and in some cases eligibility—to participation in programs under which they perform cheap labor or are prepared for employment in low-paying, menial jobs.

By a 7 to 2 margin the Supreme Court ruled that the state had no constitutional obligation to help the destitute. Writing on behalf of the majority, Chief Justice Beverley McLachlin said the Charter’s Section 7 [S. 7] “has been interpreted as restricting the state’s ability to deprive people of their right to life, liberty and security of the person. Such a deprivation does not exist here, and the circumstances of this case do not warrant a novel application of S.7 as the basis for a positive state obligation to guarantee adequate living standards.”

Several provinces—Ontario, Alberta, British Columbia, and New Brunswick—had submitted arguments in support of the Quebec government. They noted that when the Charter was drafted in 1982, its framers—the then federal Liberal government and the provinces—had explicitly rejected the call for a “Social Charter,” because their aim was to limit the power of government, not impose obligations on the state.

The provinces supporting the Quebec welfare regime further argued that to enshrine a state obligation to provide minimum security of income would cost “billions” and have long-term implications for everything from the supply of public housing to the cost of food, prescription drugs and heating.

On the question of whether Quebec’s welfare regime constituted age discrimination, the court was more evenly divided, with five judges ruling that it did not and four finding that it violated the Charter’s guarantee of equal treatment.

The majority advanced several arguments, including that there is no evidence that youth as a group are subject to societal discrimination. Gosselin’s evidence that she had repeatedly been rendered homeless, had relied for much of her food and clothing on soup kitchens and charities, and had ultimately fallen into prostitution was summarily dismissed, with the majority saying it would be “utterly implausible” for the Court to order the Quebec government to pay out hundreds of millions of dollars “based on the testimony of a single affected individual.”

The most important aspect of the majority ruling upholding Quebec’s welfare regime as non-discriminatory was its ringing endorsement of workfare. Turning reality on its head, the majority claimed that by offering some youth a chance to earn their benefits—while the rest were rendered destitute—the Quebec government was discriminating in favor of the youth, since older welfare recipients did not have access to a program whose ostensible purpose was to reintegrate them into the labor market. “The regime,” wrote Canada’s Chief Justice, “constituted an affirmation of young people’s potential rather than a denial of their dignity.”

Each of the four dissenting judges gave separate reasons. Judge Louis Arbour suggested Quebec’s welfare regime put young people’s long-term health and lives at risk: “The right to a minimum level of social assistance is intimately intertwined with considerations of one’s basic health and, at the limit, even one’s survival.” Judge Bastarache suggested that the huge gap between the number of youth reduced to living on welfare—more than 80,000—and the restricted number of places in the government workfare schemes—30,000—indicated that the government’s primary interests was in saving money, not the youth’s betterment. Judge LeBel was even blunter, “Young social assistance recipients in the 1980s certainly did not latch onto social assistance out of laziness. They were stuck receiving welfare because there were no jobs available.”

The Supreme Court’s ruling that the provinces have no constitutional obligation to provide economic security and its support for workfare is in keeping with the its role as the summit of the legal order that upholds the power and prerogatives of capital. While the Canadian Alliance and other voices of the extreme right rail against an “activist” court because of some decisions limiting police powers or recognizing the civil rights of gays, on those issues most immediately and directly of interest to capital, the Supreme Court’s Charter rulings have strongly supported the big business offensive against the working class. In 1987, when the ruling class was determined to drastically reduce trade union power, the Court issued a ruling saying that the rights to strike and even organize unions are of a relatively recent vintage and cannot be equated with the right to free speech or other Charter rights.

The Court’s ruling in the Gosselin case is not only a green light for further restrictions in welfare eligibility and cuts to last-resort benefits. It is sanction from one of the pillars of the capitalist order for new attacks on state support for the sick, the aged, and other vulnerable social layers.

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