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1 Louise Gosselin Was Born in 1959. She Has Led a Difficult Life, Complicated by a Struggle with Psychological Problems and Drug and Alcohol Addictions

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1 Louise Gosselin Was Born in 1959. She Has Led a Difficult Life, Complicated by a Struggle with Psychological Problems and Drug and Alcohol Addictions Louise Gosselin Appellant v. The Attorney General of Quebec Respondent and The Attorney General for Ontario, the Attorney General for New Brunswick, the Attorney General of British Columbia, the Attorney General for Alberta, Rights and Democracy (also known as International Centre for Human Rights and Democratic Development), Commission des droits de la personne et des droits de la jeunesse, the National Association of Women and the Law (NAWL), the Charter Committee on Poverty Issues (CCPI) and the Canadian Association of Statutory Human Rights Agencies (CASHRA) Interveners Indexed as: Gosselin v. Quebec (Attorney General) [2002] 4 S.C.R. 429, 2002 SCC 84 File No.: 27418. 19 December 2002 Present: McLachlin C.J. and L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ. On appeal from the Court of Appeal for Québec The judgment of McLachlin C.J. and Gonthier, Iacobucci, Major and Binnie JJ. was delivered by THE CHIEF JUSTICE — I. Introduction 1 Louise Gosselin was born in 1959. She has led a difficult life, complicated by a struggle with psychological problems and drug and alcohol addictions. From time to time she has tried to work, attempting jobs such as cook, waitress, salesperson, and nurse’s assistant, among many. But work would wear her down or cause her stress, and she would quit. For most of her adult life, Ms. Gosselin has received social assistance. 2 In 1984, the Quebec government altered its existing social assistance scheme in an effort to encourage young people to get job training and join the labour force. Under the scheme, which has since been repealed, the base amount payable to welfare recipients under 30 was lower than the base amount payable to those 30 and over. The new feature was that, to receive an amount comparable to that received by older people, recipients under 30 had to participate in a designated work activity or education program. 3 Ms. Gosselin contends that the lower base amount payable to people under 30 violates: (1) s. 15(1) of the Canadian Charter of Rights and Freedoms (“Canadian Charter”), which guarantees equal treatment without discrimination based on grounds including age; (2) s. 7 of the Canadian Charter, which prevents the government from depriving individuals of liberty and security except in accordance with the principles of fundamental justice; and (3) s. 45 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12 (“Quebec Charter”). She further argues that neither of the alleged Canadian Charterviolations can be demonstrably justified under s. 1. 4 On this basis, Ms. Gosselin asks this Court to order the Quebec government to pay the difference between the lower and the higher base amounts to all the people who: (1) lived in Quebec and were between the ages of 18 and 30 at any time from 1985 to 1989; (2) received the lower base amount payable to those under 30; and (3) did not participate in the government programs, for whatever reason. On her submissions, this would mean ordering the government to pay almost $389 million in benefits plus the interest accrued since 1985. Ms. Gosselin claims this remedy on behalf of over 75 000 unnamed class members, none of whom came forward in support of her claim. 5 In my view, the evidence fails to support Ms. Gosselin’s claim on any of the asserted grounds. Accordingly, I would dismiss the appeal. II. Facts and Decisions 6 In 1984, in the face of alarming and growing unemployment among young adults, the Quebec legislature made substantial amendments to the Social Aid Act, R.S.Q., c. A-16, creating a new scheme — the scheme at issue in this litigation. Section 29(a) of the Regulation respecting social aid, R.R.Q. 1981, c. A- 16, r. 1, made under the Act continued to cap the base amount of welfare payable to those under 30 at roughly one third of the base amount payable to those 30 and over. However, the 1984 scheme for the first time made it possible for people under 30 to increase their welfare payments, over and above the basic entitlement, to the same (or nearly the same) level as those in the 30-and-over group. 7 The new scheme was based on the philosophy that the most effective way to encourage and enable young people to join the workforce was to make increased benefits conditional on participation in one of three programs: On-the- job Training, Community Work, or Remedial Education. Participating in either On-the-job Training or Community Work boosted the welfare payment to a person under 30 up to the base amount for those 30 and over; participating in Remedial Education brought an under-30 within $100 of the 30-and-over base amount. The 30-and-over base amount still represented only 55 percent of the poverty level for a single person. For example, in 1987, non-participating under-30s were entitled to $170 per month, compared to $466 per month for welfare recipients 30 and over. According to Statistics Canada, the poverty level for a single person living in a large metropolitan area was $914 per month in 1987. Long-term dependence on welfare was neither socially desirable nor, realistically speaking, economically feasible. The Quebec scheme was designed to encourage under-30s to get training or basic education, helping them to find permanent employment and avoid developing a habit of relying on social assistance during these formative years. 8 The government initially made available 30 000 places in the three training programs. The record indicates that the percentage of eligible under-30s who actually participated in the programs averaged around one-third, but it does not explain this participation rate. Although Ms. Gosselin filed a class action on behalf of over 75 000 individuals, she provided no direct evidence of any other young person’s experience with the government programs. She alone provided first-hand evidence and testimony as a class member in this case, and she in fact participated in each of the Community Work, Remedial Education and On-the-job Training Programs at various times. She ended up dropping out of virtually every program she started, apparently because of her own personal problems and personality traits. The testimony from one social worker, particularly as his clinic was attached to a psychiatric hospital and therefore received a disproportionate number of welfare recipients who also had serious psychological problems, does not give us a better or more accurate picture of the situation of the other class members, or of the relationship between Ms. Gosselin’s personal difficulties and the structure of the welfare program. 9 Ms. Gosselin challenged the 1984 social assistance scheme on behalf of all welfare recipients under 30 subject to the differential regime from 1985 to 1989 (when, for reasons unrelated to this litigation, it was replaced by legislation that does not make age-based distinctions). As indicated above, she argued that Quebec’s social assistance scheme violates s. 7 and s. 15(1) of the Canadian Charter, and s. 45 of the Quebec Charter. She asks the Court to declare s. 29(a) of the Regulation — which provided a lesser base welfare entitlement to people under 30 — to have been invalid from 1987 (when it lost the protection of the notwithstanding clause) to 1989, and to order the government of Quebec to reimburse all affected welfare recipients for the difference between what they actually received and what they would have received had they been 30 years of age or over, for a total of roughly $389 million, plus interest. 10 The trial judge, Reeves J., held that the claim was not supported by the evidence and that the distinction made by Quebec’s social assistance regime was not discriminatory under s. 15(1) of the Canadian Charter because it was based on genuine considerations that corresponded to relevant characteristics of the under- 30 age group, including the importance of providing under-30s with incentives to get training and work experience in the face of widespread youth unemployment: reflex, [1992] R.J.Q. 1647. He dismissed Ms. Gosselin’s s. 7 claim, holding that s. 7’s protection of security of the person does not extend to economic security and does not create a constitutional right to be free from poverty. He also rejected the claim under s. 45 of the Quebec Charter on the ground that s. 45 does not create an entitlement to a particular level of state assistance. 11 All three judges of the Quebec Court of Appeal agreed that s. 7 of the Canadian Charter was not engaged in this case:1999 CanLII 13818 (QC CA), [1999] R.J.Q. 1033. Mailhot J.A. found this case indistinguishable from Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, and dismissed the s. 15(1) claim accordingly. Baudouin J.A. found that Quebec’s social assistance scheme breached s. 15(1), but he found the breach justified in a free and democratic society under s. 1 of the Canadian Charter. Robert J.A. would have found that the social assistance scheme breached s. 15(1) of the Canadian Charter and was not saved by s. 1, but he would have dismissed the claim for damages as inappropriate. On s. 45 of the Quebec Charter, only Robert J.A. found a breach, for which he held damages unavailable. III. Issues 12 This case raises the important question of how to determine when the differential provision of government benefits crosses the line that divides appropriate tailoring in light of different groups’ circumstances, and discrimination.
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