From What I Understand, The Poor are Canada’s Constitutional Castaways

“Poverty has been characterized by our political leaders not as a serious and systematic problem, but an individualized phenomenon blamed on the poor themselves… who are depicted as responsible for their own misfortunes. Charter litigation, in this context, is then revealed not as a means of bypassing democratically elected governments… but rather as a mechanism for calling the legislative and executive branches to account for their failure to respect the basic rights and interests of a group which has been totally marginalized within our current political system.” [1]

 

Gosselin v. Quebec[2] demonstrates how a condescending, stereotypical view towards poverty has permeated both society and government to the point where a real examination of any economic issue is not even considered.

The application of the Charter[3] should have no barriers to economic issues experienced by individual persons. By limiting the application of section 7 to negative liberties and effectively preventing courts from imposing positive obligations onto the government, citizens are barred from gaining back any advantages lost to the capitalist market, leaving society confined to the framers’ inferred economic ideology.

If continued, this ideology will entrench the existence of poverty to ensure that it remains an institutional representation of individual failure.

The Supreme Court of Canada held that withholding welfare did not infringe Canadians’ rights to life, liberty and security of the person

The main question asked by the court was whether the age-based entitlements in the Social Aid Act[4] violate sections 7 or 15 of the Charter? These guarantees to our rights and freedoms specifically address the underlying issues in this case.

Section 7 secures individual persons’ rights 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. The principles of fundamental justice include the concepts that laws should not be: (1) overbroad, (2) grossly disproportionate, or (3) arbitrary.

The majority of judges of the Supreme Court of Canada forgot to leave their privilege outside of the courtroom for this case. They found that the application of section 7 should only mean that courts must ensure citizens are not deprived of their rights, therefore the government is not obliged to ensure that each person enjoys their life, liberty or security of the person.

These judges relied heavily on the excuse that Ms. Gosselin’s frail evidentiary platform could not support the weight of a positive state obligation. Their analysis focused solely on the alleged state deprivation of Louise Gosselin’s security of the person through the government’s inability to provide individuals with a means of subsistence.

Since the government was supplying her welfare, it was inferred that the government could not be found to be depriving Louise from her right to her physical and psychological security. Instead, justice McLachlin preferred to use the proverbial analogy of “Give a man a fish and you feed him for a day. Teach him how to fish and you feed him for a lifetime.” She regards a basic income as incompatible with individual autonomy, and attributes education as the main factor behind developing self-sustainability.

Further, the majority leans on capitalism to fill their list of some available and “dignified” alternative means, such as: (1) the open market; (2) family members; or (3) charitable groups (another necessary factor to account for capitalism’s shortcomings). However, they also state that there is no requirement to exhaust one’s alternative means before resorting to public assistance. Yet, all that should have been required was to prove that a lack of government intervention substantially impeded the enjoyment of section 7 rights.

By framing government interference as infringing on the physical and psychological security of the person, causation can easily be found, due to the deprivation experienced by welfare recipients – based on the state’s allocation of resources. Therefore, the more apt conception of this section 7 issue would be to determine whether obligatory state intervention is needed to secure the effective exercise of a claimant’s fundamental right. The answer in this case is, “Yes!”

Money is needed to buy everything in life.

Thankfully, Canadians were given a less stereotypical perspective from which to analyze this case through the dissenting opinions given by justices Arbour and L’Heureux-Dubé. Their textual interpretation did not offer the same result as the majority – finding that section 7 should not simply be a shield. They argued that the state must both abstain from interference with rights, and actively secure rights in the face of competing demands.

The fact that the legislature has chosen to legislate in respect to welfare rights should not be considered at all since our rights exist independently of any statute. Further, justice Arbour stated perfectly that the welfare state was developed in response to an obvious failure on the part of the free market economy to provide these basic needs for everyone. Arguably, this development could be further attributed to obvious failures on the government to legislate effective fiscal and monetary economic policies. Therefore, the focus should be on the entire Constitution Act, within which the Charter is situated.

 

Withholding a subsistence level of welfare should have engaged all s. 7 interests

By examining this decision in its broader legal context, one can find additional section 7 arguments for both the life and liberty interests having been engaged in this case. In terms of life – or survival – the court in Carter stated that “the case law suggests that the right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly.”[5]

While Carter has shown us that the state cannot restrict individuals’ ability to commit suicide, the opposite should also be true – the state cannot (either directly or indirectly) coerce individuals into life-threatening situations or to commit suicide. Based on the (overlooked) facts adduced in Gosselin, reduced welfare lead to an increase in suicidal tendencies and attempts, and further increased the risk of death from life-threatening attacks.[6]

By examining the liberty interest – or freedom to make personal decisions – we can understand how an individual in poverty is restricted in the choices that are available to them. The capitalist/libertarian ideology of “voting with your dollar” removes the impoverished from being a factor in market-influence; as compared to wealthy individuals who essentially possess access to unrestricted opportunities.

Morgentaler[7] helped the threshold for these cases to include state intrusion in personal autonomy.[8] Here, a person without money is effectively impeded in exercising most autonomous action through the additional mental consideration of cost-avoidance.

In Chaiouli, justice Binnie discusses the liberty to make personal decisions to buy or spend, which he found was not legally violated by limiting Quebec citizens to public healthcare. In this case however, this limitation was justified due to the lack of a violation of a principle of fundamental justice.[9]

However, it is clear that in this case, the law in its effect violates the principles as arbitrary; the objective of ensuring the entry of young recipients into the labour force was not met, and further, the reduction of social assistance cannot be viewed as a reasonable means to that end – especially due to the evidence that this actually diminished their ability to gain employment.[10] This also destroys the argument forwarded by several courts that the only other option is to remove the social assistance legislation and leave the poor in a worse position – as this demonstrates the implied duty on the government to provide a basic method of survival.

Unemployment is a result of the effects of governmental capitalism, not inherent in the uneducated

In this case, we can see capitalism as being both implied and impelled. It is implied in the sense that the view of understanding welfare as being provided on behalf of the government as a benefit which must be earned is inferred from the majority’s perspective on the framers decision to leave out property rights under the Charter. It is impelled by the judiciary’s inability to see beyond the scope of what they perceive the legislators intended.

The powers pertaining to capitalist principles have been imposed since the Constitution Act, 1867.[11] The division of powers created, what Howard Innis considers, a centre-periphery economic relationship between the systems of government. This theory states that in order for the “centre economy” (manufacturing & export) to flourish, it must do so at the expense of the periphery (resource gathering).[12] This relationship is fostered in this case, where the federal government has effectively legislated in the poor by failing to consider all persons in determining economic policies.

If capitalism can be legislated in, it should also be able to be ousted.

The correct application of economics in this case would reveal the value systems which are being used throughout the judgement. The “unemployment rate” has been calculated in varying fashions throughout our history in Canada. The 1976 redesign helped refine the definition of who was part of the supply of labour.

Under the old design, people who were economically active, but who did not report employment or searching for work, were not counted among the employed or unemployed. In addition, people who did not report looking for work as a main or secondary activity were not counted among the unemployed, however after these changes they would be counted as such (e.g. people on temporary layoff who were not looking for work).[13]

Therefore, we see the proper, economic classification of “unemployment” looks much differently than that used by our courts. By instead viewing those measured as “unemployed” as individuals who are actively attempting to become employed (or are in transitory employment), we can see that an entire category of “non-participators” is left out of consideration.

“Unemployment” reveals a measurement of failure on behalf of corporations and governments to increase the supply of jobs to meet the demand – unable to be surpassed through imposing mandatory education on welfare recipients.

A macroeconomic analysis further reveals that government is the true source of poverty

Canada adopted a restrictive monetary policy in the mid 1980s which reduced the domestic value for Canadian currency, thereby reducing interest rates, and foreign exchange rates. Prior to this government intervention, Canada’s real interest rate was highest of all industrialized economies, which effectively valued the Canadian dollar higher than its foreign comparators thereby decreasing foreign investment in Canada – causing a substantial decrease in overall domestic income (GDP). [14]

The post-war baby boom, and women entering the workforce can help account for an overall increase in the labour supply; but coupled with a fall in global prices for commodities, and the Canadian government’s monetary and fiscal economic constriction policies – demand shocks acted directly on employment.

Unemployment would have been valued 5 points higher in 1985 if not for the “discouraged-worker effect” which causes workers to drop out of the labour force entirely during high levels of unemployment.[15]

This demonstrates a more holistic account for the state of the economy and its direct impact on the socio-economic issues engaged in this case; if not for the Canadian government’s actions, individuals would not have experienced such a devastating effect on employment.

Conclusion

In sum, the Supreme Court of Canada has ignorantly decided to waive their finger at a clear case that resembles imposing an economic duty on the government to provide a basic level of sustenance for its people. This decision is the embodiment of the capitalist ideology: one must gain at the expense of another.

Unfortunately, this economic system requires ever-increasing profits (income minus expenses), therefore in order for a corporation to survive it must either increase its income or reduce its expenses. The inevitable fate of this system will arrive when there is no longer any room to alter these values to one’s advantage.

By failing to account for the fact that everything required to survive in society must be purchased – and therefore one requires money to survive – the court has demonstrated that its purpose is to provide justice to those who have been wronged, unless that wrong stems from our capitalist ideology.

 

[1] Martha Jackman, “Charter Equality at Twenty: Reflections of a Card-carrying Member of the Court Party” (2006/2007) 20 NJCL 118.

[2] Gosselin v Quebec (Attorney General), 2002 SCC 84. [Gosselin]

[3] Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[4] Social Aid Act, RSQ, c A-16.

[5] Carter v Canada (Attorney General), 2015 SCC 5, at para 64.

[6] Gwen Brodsky & Rachel Cox, “Factum of The National Association of Women and the Law (NAWL)”, online: (2001) at paras 3, 9 factumlib/docs/gosselin/Gosselin-Intervenor_Factum_(NAWL).pdf>.

[7] R v Morgentaler, [1988] 1 SCR 30.

[8] Gosselin, supra note 2 at para 80.

[9] Chaoulli v Quebec (AG), [2005] SCR 791, at para 207.

[10] Gosselin v Quebec (AG), [2006] 1 WCR 193, at paras 118 & 164.

[11] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, ss 91-92.

[12] Daniel Drache, “Harold Innis and Canadian Capitalist Development” (1982) 6:1 Can J Politics & Soc Theory 37.

[13] Jeannine Usalcas & Mark Kinack, “History of the Canadian Labour Force Survey, 1945 to 2016”, (6 January 2017) Statistics Canada, online: <statcan.gc.ca/pub/75-005-m/75-005-m2016001-eng.htm>.

[14] MW Keil & JSV Symons, “An Analysis of Canadian Unemployment” (1990) 16:1 Can Pub Pol’y 3.

[15] Ibid at 11.

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