and Charter Rights to "Security of the Person"
by. C. A. L'Hirondelle,
"Poverty and homelessness
in Canada is more abhorrent because it is completely unnecessary and almost invariably a matter of legislative or
--Bruce Porter, 2001
ReWriting the Charter at 20 or Reading it Right: The Challenge of Poverty and Homelessness in Canada, Centre for Equality Rights in Accomodation, 2001
Over 200 years ago Thomas Paine made the argument that if people are dispossessed of land--and thus a way to directly get food and shelter--that the state then must provide them with a Citizen's Dividend (1795, Agrarian Justice).
When discussing guaranteed livable (annual/basic) income -- similar to a Citizen's Dividend-- people often refer to the Canadian Constitution's Charter of Rights and Freedoms and Section 7's promise of rights to "life, liberty and security of the person."
Rights under the Charter are constitutional and cannot be taken away on the whim of whatever government is in power. For example, a political party cannot do away with the right to vote, freedom on expression, freedom of assembly and other constitutional laws. City and provincial governments cannot have laws that violate constitutional rights. Under Section 52, it says that: "... any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect."
However Canadian courts so far have ruled against constitutionally guaranteed economic rights. In 2002 the Supreme Court of Canada ruled in Gosselin v. Quebec that Section 7 did not obligate the state to provide a guaranteed minimum income to its citizens. Chief Justice Beverly McLachlin wrote: "facts of this case cannot support the weight of a positive state obligation of citizen support."
But she also wrote: "I leave open the possibility that a positive obligation to sustain life, liberty, or Security of the Person may be made out in special circumstances."
Justice Louise Arbour was one of two dissenting opinions (of nine judges) on the Section 7 ruling. She wrote: "The right to a minimum level of social assistance is intimately intertwined with considerations related to one's basic health and, at the limit, even one's survival. These rights can be readily accommodated under the s. 7 rights to 'life, liberty and security of the person' without the need to constitutionalize 'property' rights or interests."
Arbour also stated: " The context in which s. 7 is found within the Charter favours a conclusion that it can impose on the state a positive duty to act." (emphasis added)
The general objection to constitutionally protected economic rights (like guaranteed income, or guaranteed food, shelter, or health care) is the argument that the courts don't have the right to make such a ruling since its members are unelected. There have been some rulings against poverty-related claims under Section 7 of the Charter including claims relating to public housing evictions, AIDS medication, adequate nursing care and termination of welfare without a hearing. (D. Wiseman, 2001, cited in Canadian Constitutional Law, The Constitutional Law Group, 2003)
A 2008 court case where the right to sleep in parks was won because of Section 7, is being appealed by the City of Victoria, British Columbia: "City will appeal Supreme Court decision." (pdf file located in City of Victoria Media Release archives 10/16/2008)
Others argue that because the courts have refused to recognize poverty-related claims, poverty will remain a marginalized issue and those in poverty will remain second class citizens (Craig Scott and P. Macklem, 1992 cited by Wiseman, 2003). In other words, if the courts don't take poverty and poverty impacts seriously, why would politicians?
Bruce Porter writes extensively on the topic of poverty and Charter rights in Canada. He states "poverty and homelessness in Canada is more abhorrent because it is completely unnecessary and almost invariably a matter of legislative or administrative choice." (2001). Porter notes that since 1982 whenever economic rights cases come before the courts the message to people living in poverty is that "The Charter and the courts are not for you."
He also notes that South Africa--"a country with a horrific AIDS crisis and fewer resources than Canada"--has a Constitution that includes a broad range of social and economic rights. (Porter, 2001)
In addition, excluding social and economic rights from the Charter makes a joke of the fact that Canada signed the International Covenant on Economic, Social and Cultural Rights. It shows Canada is "out of step with emerging transnational human rights standards..." (Section 7 and the Litigation of Poverty, Canadian Constitutional Group, 2003)
It is also violating the "well established principle of international law that domestic law should be interpreted in a manner that conforms to international obligations..." (Porter, 2001).
David Schneiderman in his article The Media and the Supreme Court (Nexus Fall/Winter 2004, University of Toronto) examines the role of media in shaping opinion of constitutional rights. He writes: "It should now be apparent that the decision in Gosselin hinges, in an important sense, on judicial invocations of common sense. This raises an interesting research question: by what sources do we measure 'everyday experience and common sense'?"
Schneiderman lists responses to the Gosselin decision from Canada's mainstream media including Southam columnist Don Martin who invoked the spectre of "[H]undreds of thousands of chronically unemployed Canadians lying on their couches, waiting for their cheque to arrive."
Schneiderman concludes: "Together judicial opinions and media reports create an environment hostile to certain types of claims" and this shapes the "dominant social consensus."
Economic rights in Canada don't exist right now. However, constitutional interpretation is not set in stone but is a "living tree" meant to adapt to the changing times (see Wiki: living tree doctrine). Thus it is perfectly possible that at some point, and in line with international trends, we will have recognized economic rights in Canada. After all, the media which has shaped social consensus and "common sense" is not the impenetrable tower of power that it used to be. Big media is now more a leaning tower of irrelevancy with dramatically shrinking readership, ad revenue, and page sizes.
Canadian (conservative!) senator Hugh Segal pointed out at a recent poverty conference (May 2009, aired on CPAC July 09), that if the federal government can bail out the banks to the tune of $75 Billion, we could similarly implement a basic income in Canada which he estimated at $25 Billion. However the actual cost would be much less once the costs of poverty and wasted resources from make-work jobs are subtracted.
To quote Bernice from the Women's Economic Justice Project: "It breaks my heart to see people sleeping on the street. What happened that society does not even care about you? Everybody deserves opportunity to have dignity in their life. Offering them a GLI [Guaranteed Livable Income], however that looks-society can afford it. There's no way they can afford not to do it, but they choose not to. I think it is probably the most immoral thing that society can do to itself, short of wars."
The failure of the courts to recognize economic rights in the past does not mean that they can't be recognized in the future. Gwen Brodsky in her 2004 article on Gosselin v. Quebec pointed out that 8 out of the 9 judges indicated receptiveness to future Section 7 claims. However, the final decision reflected the idea that people (especially youth) need the 'incentive' of destitution and desperation to have "affirmation of their potential."
Given recent economic events, it is unlikely that this 500 year old idea (based on Calvin's work ethic) will continue to dominate social policy. Our human and environmental survival will depend on every country in the world enacting their own form of guaranteed income and there is no reason, other than outdated theories about work and money, why world society cannot do this.
Sources & More Information:
Constitution Act of 1982
Full Judgement of Gosselin v. Quebec
Section 7 and the Litigation of Poverty, pg. 1128, Canadian Constitutional Law, Constitutional Law Group,
Edmond Montgomery Publications Ltd. 2003
(The author was lucky to find this excellent tome for $3.89 at a thrift store)
Constitutional Ropes of Sand or Justiciable Guarantees? by Craig Scott and Patrick Macklem, 1992 University of Pennsylvania Law Review. (referred to in the above chapter on s.7)
Media and the Supreme Court,
David Schneiderman, Nexus Fall/Winter 2004, University of Toronto
Bruce Porter, The Uninvited Guests: Reflections on the Brief History of Poor People Seeking Their Rightful Place In Equality Jurisprudence), 1994
Gwen Brodsky's paper on Gosselin v. Quebec (pdf file)
Poverty and the Charter
Hugh Segal, panelist, Socal Policy Conference 2009
Calgary, AB, Canada
on CPAC (parliamentary tv channel) May 22, 2009
Women's Economic Justice Report on GLI, 2006
Louise Arbour speech on social and economic rights and their history, 2005