Protection of Welfare Rights Under the Charter

THE PROTECTION OF WELFARE RIGHTS UNDER THE CHARTER Martha Jackman* We are not so traditionally accustomed, however, to say that without an unemployment insurance law, or without an old age pensions law, or laws providing for free universal education, there is no liberty.... The object of these laws is to free men and women from known and certain risks which exist in our industrialised society, and which if not insured against can destroy so much liberty among so many individuals as to make Bills of Rights to them a hollow mockery. - Frank R. Scott' INTRODUCTION While the ambiguity and uncertainty surrounding many of the provisions of the CanadianCharter ofRights and Freedoms2 might be subject to criticism, I prefer the view that Canadians are now in the enviable position of deciding not only what their Constitution should say, but what it does say. This is particularly true with respect to section 7 of the Charter, which provides: 7. 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. The scope and meaning of section 7 has generated considerable debate. Some commentators have suggested that section 7 only provides for procedural protection against state deprivations of life, liberty or physical security. Others have suggested that section 7 extends to a much wider range of interests, including those conducive to human dignity, and to the ability to carry on activities essential to a person's conception of how * Faculty of Law, University of Ottawa. I wish to thank Jerry Mashaw and Kent Roach for their helpful comments on earlier drafts of this paper. I FR. Scott, Expanding Concepts of Human Rights in ESSAYS ON THE CONSTI- TUTION (Toronto: University of Toronto Press, 1977) 353 at 357. 2 CanadianCharter of Rights and Freedoms, Part I of the ConstitutionAct, 1982, being Schedule B of the CanadaAct 1982 (U.K.), 1982, c. 11 [hereinafter Charter]. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 20:2 to live "the good life" and to function with a degree of autonomy, self- direction, and social activism. 3 Were it to be accepted by the courts, an unduly restrictive view of the scope of the section 7 right to life, liberty and security of the person, might lend credence to criticisms that the Charter "was not designed to change the status quo, but merely to give it greater appeal" 4, and that the Charter is important not because it will effect social change, but because it is part of "an integrated and rhetorical system of control and ordering". 5 While I readily acknowledge that the entrenchment of a charter of rights in a society's constitutional structure will not necessarily change its moral and economic foundation 6, I cannot accept the view that the Charter has nothing to say to those Canadians who are most in need of its protection.7 Consistent with this belief, I will attempt to demonstrate that section 7 of the Charter guarantees what Frank R. Scott aptly de- scribed as "freedom from the risks inherent in an industrialised society through social security involving state action"8; what we now characterize as welfare rights. In the first part of the paper I will suggest that the general context in which the Charterwas adopted, the background against which the language of specific sections must necessarily be understood, points to an interpretation of section 7 which encompasses welfare-related interests. I will examine Canadian social and political traditions with regard to the relationship between the individual, the community and the state; Canada's international human rights commitments; the American welfare rights experience; and the underlying purposes of the 1982 con- 3 See N. Dupl6, L'article 7 de la Charte canadienne des droits et libertis et les principes de justice fondamentale (1984) 25 C. DE D. 99; M. Manning, RIGHTS, FREE- DOMS AND THE COURTS - A PRACTICAL ANALYSIS OF THE CONSTITUTION ACT, 1982 (Toronto: Emond Montgomery Limited, 1983); B. Schwartz, The Charter and Due Process [1983] ISAAC PITBLADO LECTURES 31; S. Green, The Charter and Economic Regulation, ibid. at 38; J.D. Whyte, FundamentalJustice: The Scope and Application of Section 7 of the Charter (1983) 13 MAN. L.J. 455; A.W. MacKay & M. Holgate, Fairness in the Allocation of Housing: Legal and Economic Perspectives (1983) 7 DALHOUSIE L.J. 383 at 405. 4 R.A. Samek, UntrenchingFundamental Rights (1982) 27 McGILL L.J. 755 at 768. 5 A.C. Hutchinson, Charter Litigation and Social Change: Legal Battles and Social Wars in R. J. Sharpe, ed., CHARTER LITIGATION (Toronto: Butterworths, 1987) 357 at 381. See also R.A. Macdonald, Postscriptand Prelude - The Jurisprudenceof the Charter:Eight Theses (1982) 4 SuP. CT L. REV. 321 at 343; A. Petter, The Politics of the Charter (1986) 8 SuP. CT L. REv. 473; H.J. Glasbeek & M. Mandel, The Le- galization of Politics in Advanced Capitalism: The Canadian Charterof Rights (1984) 2 SOCIALIST STUDIES 84. 6 Samek, supra, note 4 at 763. 7 For an eloquent defense of rights and rights-assertion from the perspective of the disenfranchised, see P.J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights (1987) 22 HARVARD CIVIL RIGHTS-CIVIL LIBERTIES L. REV. 403. See also C. Campbell, The CanadianLeft and the CharterofRights (1984) 36 STANFORD L.R. 509. 8 Scott, supra, note 1 at 358. 1988] The Protection of Welfare Rights stitutional reforms, to support this argument. In the second part of the paper, I will go on to consider the nature and scope of the barriers which section 7 erects against government deprivations of welfare rights. Finally, I will explore the implications of my argument for the role of the judiciary within the larger Canadian political framework. I. SOURCE OF PROTECTION: THE CONTEXT IN WHICH THE CHARTER WAS ADOPTED As the Supreme Court of Canada has reiterated on numerous oc- casions, the task of expounding the Charter of Rights and Freedoms, as part of the "supreme law of Canada" 9 is crucially different from that of construing an ordinary statute. In Skapinker v. Law Soc'y of Upper Canada, Mr. Justice Estey declared that the Charter must "serve the Canadian community for a long time", and that "narrow and technical interpretation" could "stunt the growth of the law and hence the community it serves".' 0 In Hunter v. Southam Chief Justice Dickson em- phasized the importance of taking the special character of the constitution into account in fashioning principles of interpretation, and in particular, "the need for a broad perspective in approaching constitutional docu- ments"."1 The court has explained the special requirements of constitutional interpretation primarily in relation to the fact that, once enacted, difficult to amend, and so must be capable of growth a constitution is 12 and development over time to meet realities unforeseen by its framers. Allan Cairns speaks to a second, fundamental, issue: A constitution is not just a bundle of machinery, a big tinker toy with substitutable parts facilitating easy assembling and dismantling. It is also a body of understandings, norms, and identities of those who live the ongoing constitutional life of the country. In its largest sense the constitution is a collective experience, and a body of evolving understandings and as- sumptions which interacts with that experience.13 As one witness appearing before the Special Joint Committee on the Constitution declared: "A constitution is more than a legal framework. 9 Constitution Act, 1982, s. 52(l), supra, note 2. 10 Skapinker v. Law Soc'y of Upper Canada, [1984] 1 S.C.R. 357 at 366, 53 N.R. 169 at 180. "1 Hunter et al. v. Southamn Inc., [1984] 2 S.C.R. 145 at 155, 11 D.L.R. (4th) 641 at 649. 12 See ibid. at 155, 11 D.L.R. (4th) 641 at 649; Skapinker v. Law Soc'y of Upper Canada, supra, note 10 at 366, 53 N.R. 169 at 180. 13 A.C. Cairns, The Canadian Constitutional Experiment (1984) 9 DALHOUSIE L.J. 87 at 103. See also J.D. Whyte, High Constitutionalism:Reading the Ideas of the CanadianConstitution, (Faculty of Law, University of Toronto, Legal Workshop Series, January 17, 1986) at 6-12 [unpublished]. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 20:2 It must be an expression of our history, our character, our values as well as our aspirations". 14 Former Prime Minister Pierre Trudeau himself char- acterized the federal government's earliest proposal for an entrenched charter of rights as an instrument "which will permit the preservation of our traditions and the pursuit of the ideals which our society cherishes". i5 It is this unique constitutional quality which makes it impossible for courts to confine themselves to traditional sources and methods of legal reasoning in interpreting and applying the Charter. Rather they must move beyond the text itself, to the broader social and political context in which the Charterwas enacted, in order to find authentic meaning in the often imperfect language of particular provisions. In the words of Chief Justice Dickson in Regina v. Big M Drug Mart Ltd.: "the Charter was not enacted in a vacuum, and must therefore . be placed in its proper linguistic, philosophic and historical contexts". 16 The social, political, economic, and cultural values which the community shares; the values which, to a significant extent, inform its collective self-identity, are a crucial source of meaning in this regard. As Thomas Berger wrote, the Charter "is a valuable and uniquely Canadian undertaking, revealing in its own way our progress towards defining our idea of Canada".

Load more