Bruce Porter

Executive Director

Centre for Equality Rights in Accommodation

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If the Canadian Charter of Rights and Freedoms were scheduled for a twenty year overhaul and update, I think many would agree that we would want to try to correct it’s failure address in any meaningful way the growing social and economic inequalities in Canadian society and the widespread poverty and homelessness in the midst of unprecedented affluence. The proliferation of hunger and homelessness in Canada belies the Charter’s promise of a more egalitarian and just society and has left many of the most disadvantaged in Canada on the outside of our so-called "rights revolution."

Last year, when the Canadian Human Rights Review Panel, chaired by former Justice La Forest, traveled across the country to hear from human rights and equality seeking groups about what they would look for in a revised Canadian Human Rights Act (CHRA), it was virtually unanimous among equality seeking constituencies that increasingly widespread and severe poverty and homeless among the most vulnerable and disadvantaged groups in Canada must be recognized as a national human rights crisis. These issues, everyone seemed to agree, go to the very core of equality, security and dignity that are at the heart of Canadians’ conceptions of human rights and must be addressed not only as issues of social policy but also as human rights violations subject to legal remedy.

A similar consensus has emerged at the international level among United Nations human rights treaty monitoring bodies reviewing Canada’s compliance with our international human rights obligations. These bodies have expressed alarm and shock at the growing crisis of poverty and homelessness in Canada and at the fact that Canadian courts and governments appear unwilling to recognize the effects of unprecedented cuts to social programs and resulting hunger and homelessness as violations of rights under the Charter and human rights legislation.

Our governments have tried to dismiss the growing concerns among U.N. bodies by pointing to the fact that Canada has perched proudly atop the United Nations Development Program Human Development Index for the last 6 years. What they fail to appreciate is that from the perspective of international law and those who monitor its compliance, a high average standard of living and increased economic prosperity for the majority does not make the destitution of some members of our society more tolerable. Rather, poverty and homelessness in Canada is more abhorrent because it is completely unnecessary and almost invariably a matter of legislative or administrative choice. Our governments have chosen to ignore the interests of the most marginalized and disadvantaged groups and governed primarily for what J.K. Galbraith calls the "Contented Electoral Majority."

Some would say, of course, that these legislative and administrative choices are somehow exempt from judicial review under the Charter and that these are issues beyond the competence and legitimate role of the courts. Yet as Justice Wilson noted in Andrews, relying on the words of John Hart Ely: "The whole point of the approach is to identify those groups in society to whose needs and wishes elected officials have no apparent interest in attending. If the approach makes sense, it would not make sense to assign its enforcement to anyone but the courts." When governments cater exclusively to majority interests at the expense of fundamental human rights of those at the margins, surely the promise of the Charter is that the courts will step in to protect and safeguard their rights. That promise has not been fulfilled for those living in poverty in Canada.

One of the reasons for this is that when poor people claim their rights under the Charter to equality or security of the person, they may appear to courts to be seeking remedies to a category of rights which is not explicitly included in the Charter. Poor people experience discrimination by governments primarily in relation to refusals to address economic deprivation. The type of government action or inaction that denies poor people equality or security of the person is usually linked with a failure to provide for economic need or a denial of a basic social or economic rights such as housing. Thus, when the most disadvantaged in Canadian society advance claims to dignity, equality and security they are at the same time advancing claims to rights which, under international law, are categorized as "social and economic rights."

Central to the Universal Declaration of Human Rights, and to most subsequent human rights treaties ratified by Canada is the right to an adequate standard of living, including the right to adequate food and the right to adequate housing. We do not find those rights, or other social and economic rights, explicitly enumerated in the Charter. Does that mean that the Charter has to be re-written to include social and economic rights if those living in poverty are to be included in its guarantees of dignity, equality and security? That is the question I want to briefly explore today.

The lack of explicit recognition of social and economic rights in Canadian law has been a matter of growing concern at the U.N. Committee on Economic, Social and Cultural Rights, which monitors Canada’s compliance with the International Covenant on Economic, Social and Cultural Rights (ICESCR) With respect to our human rights legislation in Canada, the Committee has recommended the explicit inclusion of economic, social and cultural rights. This has also been the solution advocated by many within Canada. As Canada’s Chief Commissioner of Human Rights has observed:

Most equality seeking and human rights groups appearing before Justice La Forest’s Task Force last year also called for the inclusion of social and economic rights in the CHRA, including the right to an adequate standard of living and the right to adequate housing as basic rights which could be claimed and adjudicated before a tribunal.

If a twenty year "tune up" were on the agenda for the Charter, I am sure the U.N. Committee on Economic, Social and Cultural Rights as well as most equality seeking groups in Canada would express similar support for the inclusion of social and economic rights there. Adding to the Charter explicit reference to social and economic rights such as the right to adequate food, clothing and housing, social security, work freely chosen, healthcare and education would serve to update the Charter in light of recent developments in international human rights and help to overcome what seems to be a strong judicial resistance, at least at lower courts, to address the pressing human rights issues in Canada that are of growing concern both internationally and domestically.

International human rights law has seen significant advances in the area of social and economic rights since the Charter was first drafted. At that time, the International Covenant on Economic, Social and Cultural Rights had only recently come into force. Though declared by the United Nations to be indivisible and interdependent with civil and political rights, social and economic rights were still, in 1981, in the institutional backwaters of the U.N. in comparison to civil and political rights. Civil and political rights were monitored and adjudicated by a specially constituted treaty monitoring body under the International Covenant on Civil and Political (ICCPR) - the U.N. Human Rights Committee - which reviewed governments’ five year periodic reports under that Covenant and also received and adjudicated individual complaints of violations. Social and economic rights, on the other hand, had no official treaty monitoring body. They were reviewed by various ineffective working groups within the Economic and Social Council, were subject to no complaints procedure and had virtually no jurisprudence. Because they require resources and are subject to "progressive realization" over time, social and economic rights such as the right to adequate food, clothing and housing, were considered more as policy commitments than as enforceable human rights.

A lot has changed in the last twenty years. The ICESCR was given its own Committee in 1986 which has developed more rigorous state party review and developed General Comments on various rights and obligations under the Covenant, including the right to adequate housing and the right to food; the obligations with respect to particular groups such as persons with disabilities and older persons; and on the general nature of state party obligations, particularly with respect to the provision of legal remedies. Experts have convened from around the world, first in Limburg and more recently in Maastricht to develop guidelines on violations of economic, social and cultural rights. At the urging of the World Conference on Human Rights in Vienna the U.N. Committee on Economic, Social and Cultural Rights has prepared a Draft Optional Protocol which would establish a complaints and adjudication procedure similar to that which exists under the ICPR.

With the expansion of the human rights treaty monitoring system at the United Nations in the 1980s and the adoption of treaties dealing with the rights of groups such as women and children, the indivisibility of social and economic rights and civil and political rights has become an institutional reality. The Convention on the Rights of the Child adopted in 1989, recognizes a broad range of economic and social rights of children and now enjoys almost universal ratification.

Virtually all regional treaty bodies now have incorporated review and adjudication of social and economic rights. The 40 member Council of Europe, for example, has adopted an updated and revised European Social Charter which includes rights such as the right to decent housing and the right to "protection against poverty and social exclusion"and provides for a complaints procedure. Most other regional human rights systems now provide in some manner for the adjudication of social and economic rights.

The United Nations and regional human rights bodies are struggling to respond, although arguably too slowly, to an urgent need for internationally enforceable social and economic rights in the new global economy. When the primary market in which corporations competed was circumscribed by national borders and protectionist trade barriers, governments were relatively free to set the rules of the competition. They could establish minimum wages, health and safety protections, labour standards, and social programs and set appropriate taxation rates through which to pay for them. In the new international economy, however, governments are too often governed by the market they regulate - by their credit ratings, their ability to compete for investment, their need to sell their products in the global market and by the decisions of trade panels about the legality of domestic regulatory measures. Without a new emphasis on social and economic rights that can be applied both internationally and domestically as universal norms, social policy can easily be held hostage to global competition.

These developments have brought new domestic challenges to social and economic rights in all countries. Certainly the challenges facing Canadian society have altered dramatically since parliamentarians debated and framed the provisions of a new Charter of Rights back in 1980-81. If our parliamentarians at that time had gone to the Parliamentary Library to look into the problem of "homelessness" in Canada they would have found only a couple of reports dealing with transient men in larger cities living in inadequate rooming houses or "flop houses". They would not have imagined that after twenty years of unprecedented economic prosperity, there would be thousands in Canada who sleep on the streets or in grossly inadequate shelters for the homeless. Most parliamentarians would have had no idea what a "food bank" was. The first food bank only opened in Edmonton in 1981. It would have been unimaginable to them that twenty years later three quarters of a million people, including over 300,000 children, would rely every month on emergency assistance from a national network of over 615 food banks and over 2,000 agencies providing limited emergency food

These developments, occurring to various degrees in all countries, raise new challenges to domestic constitutional regimes. Many of the world’s newer constitutional democracies have responded by providing, at least in some form, for the adjudication of social and economic rights, either through the direct application of international human rights law in domestic courts or through the inclusion of specified social and economic rights in national constitutions.

An example with which many in the Canadian Bar Association will be familiar is South Africa, where the CBA has forged important research and support networks for advocates working under the new Constitution. South Africa’s final Constitution includes a broad range of social and economic rights that are fully justiciable, including the right "to have access to" "adequate housing", "health care services, including reproductive health care", "sufficient food and water" and "social security, including, if they are unable to support themselves and their dependents, appropriate social assistance." Their Constitutional Court recently released its first ruling which applied the right to have access to adequate housing. The Court found that various levels of government failed to fulfill their constitutional responsibilities when 390 adults and 510 children were living on a sports field without tents or facilities after having been forced to vacate a squatter settlement. Surely if a government facing a horrific AIDS crisis, and with considerably fewer resources than Canada is prepared to be held constitutionally accountable to these fundamental norms of international human rights law, we in Canada should be.

It is interesting to note that as early as 1990, when Canada was experiencing a serious housing crisis and after the International Year of Shelter for the Homeless in 1987 had brought new attention to the right to housing in international law, a Liberal Housing Task Force co-chaired by Paul Martin recommended that the Charter be amended to include the right to adequate housing and other social and economic rights Mr. Martin argued at that time that while many of the rights in the Charter tend to be seen as "negative" rights, it is increasingly important to recognize the positive obligations of governments:

The 1990 Task Force concluded by recommending that the constitutional recognition of the right to housing should be placed on he agenda of the next First Minister’s Meeting.

Today, of course, telling homeless people that they need to wait for the Charter to be re-written by the First Ministers to protect their right to housing is to condemn them to a lengthy, if not eternal, exile from Canada’s constitutional democracy. Before we propose to re-write the Charter to include social and economic rights like the right to housing, we should make sure we are reading the one we’ve got right, and that poor peoples’ claims to dignity and security could not receive an appropriate hearing and response in the context of the present Charter. For while the Charter may seem old to some, it is relatively new for poor people. The first Charter challenge to poverty and homelessness to reach the Supreme Court of Canada will be heard in the autumn. It is a bit early in their rights claiming history to be telling poor people that they need to re-write the Charter if they want to have their claims to dignity, equality and security heard.

While we do not have in the Charter an enumeration of particular social and economic rights, we still have two all important, open-ended provisions which were the result of hard fought battles back in 1980-81. These are a broad guarantee of the right to life, liberty and security of the person in section 7, situated within a Constitution which uniquely excludes the right to property, and a substantive guarantee of the equal benefit of the law in section 15. Neither of these rights conforms to the "negative rights" paradigm described by Paul Martin. Both have been recognized by the Supreme Court as being "hybrid" rights, made up of positive and negative components.

Open ended, substantive rights such as these are particularly well equipped for providing remedies to more specific substantive rights enumerated and codified in international human rights law. The Supreme Court has embraced the well established principle of international law that domestic law should be interpreted in a manner that conforms to international legal obligations and it has done so specifically in relation to social and economic rights. It was in the context of invoking the right to work under the ICESCR that the majority of the Supreme Court embraced Chief Justice Dickson’s important precept that "the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada ratified." The Supreme Court has recognized that while corporate property rights were deliberately excluded from the Charter and can not be read back into it through section 7, this is not true of social and economic rights which might be claimed by those living in poverty. It has recognized that section 7 may be interpreted to include rights in the ICESCR such as "rights to social security, equal pay for equal work, adequate food, clothing and shelter." It has found that section 7 obliges governments to provide legal aid or counsel for poor people in custody cases where there is an issue of security of the person at stake.

Considering the status of the Convention on the Rights of the Child as an interpretive framework for administrative discretion, Justice L’Heureux-Dubé asserted for the majority of the Court in Baker that international law is "a critical influence on the interpretation of the scope of the rights included in the Charter." She further elaborated on that principle in Ewanchuk, noting that "our Charter is the primary vehicle through which international human rights achieve a domestic effect." and that "the equality guarantee, along with the guarantee of security of the person, will be particularly important vehicles for incorporating international human rights norms, as these two rights embody the notion of respect of human dignity and integrity."

Canada’s unique approach to equality should thus act as an appropriate vehicle for providing domestic legal effect to many of the substantive obligations toward disadvantaged groups contained in the ICESR and the Convention on the Rights of the Child, The Convention on the Elimination of All Forms of Discrimination Against Women and other human rights treaties. As the U.N. Committee on Economic, Social and Cultural Rights put it in the Committee’s General Comment on the Domestic Application of the Covenant:

In its first decisions under section 15 in Andrews and Turpin in 1989, the Supreme Court affirmed that the equality guarantee is the broadest of all guarantees, underpinning all other rights, that it has a strong remedial component and that its purposes are "in remedying or preventing discrimination against groups suffering social, political and legal disadvantage in our society." In the Eldridge case, deaf patients in British Columbia challenged the fact that there was no sign language interpretation provided when it was necessary to adequate healthcare. When the B.C. government had declined to fund a non-profit provider of these services they argued that their right to the equal benefit of the healthcare system had been infringed. Government lawyers argued that the right to equality ought only to protect against inequalities created by government action, not to authorize courts to require governments to allocate resources to particular issues of disadvantage that were not caused by the government Justice La Forest, on behalf of a unanimous Supreme Court of Canada, forcefully rejected that argument, stating that:

It is difficult to see how government action or inaction depriving single mothers and their children, people with disabilities, youth or others enumerated or analogous groups of adequate food, clothing and housing.would fall outside of this broad guarantee of substantive equality.

While the Supreme Court’s evolving approach to equality and security of the person is properly informed by modern developments in international human rights law, it is also a retrieval of the original promise of the Charter, and its broad affirmation of social justice as a fundamental foundation of our constitutional democracy. Chief Justice Dickson wrote in Oakes in 1986 of the values and principles essential to a free and democratic society which must guide Charter interpretation, including "respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society."

As Justice Cory noted in Vriend, the guarantee of substantive equality at the core of the Charter evokes the promise of a "just society" in which all individuals live in dignity - arduous and difficult as it may be to attain, but well worth the effort. We were certainly reminded last September, watching historical clips of Pierre Elliot Trudeau, of how inseparable were our expectations of the Charter twenty years ago from the ideal of a just and inclusive society based on universal dignity and social justice. As the young Trudeau wrote in 1961 in an article on "Economic Rights" for the McGill Law Journal, unless society evolves "an entirely new set of values" and produces the services that private enterprise is failing to produce "any claim by lawyers that they have done their bit by upholding civil liberties will be dismissed as a hollow mockery."

Without being naively nostalgic, I think it is true to say that in 1981, governments’ commitments and ability to, in the words of section 36 of the Constitution, "promote the well-being of Canadians and to provide essential public services of reasonable quality to all Canadians" was an assumed commitment and obligation behind the rights entrenched in the Charter. Rights and obligations were two sides of the same coin. Canadians had lived under the guarantee of the Canada Assistance Plan Act for 15 years, in which the entitlement to an adequate level of financial assistance for anyone in need, regardless of the cause of need, was a core social right, and one which was subject to judicial review and remedy. These social rights and constitutional commitments were inextricably interwoven with the Charter’s guarantees of individual rights. They were part of the Charter’s promise, and we should not have to re-write the Charter to demand that its promise be realized.

In the twelve years since the Supreme Court issued its first decisions under section 15, affirming the primacy of the guarantee of equality and the over-riding purpose of alleviating social and historical disadvantage, almost half a million more households have fallen into poverty. The number of single mothers living in poverty has increased by more than 50% to over 300,000, and their poverty has in many cases deepened to the point of extreme destitution. The number of homeless women and children living in shelters in Toronto has increased by 130%. Surely this is not the version of substantive equality for which the Ad Hoc Committee of Women fought so hard back in 1981.

Rosemary Billings, in her Introduction to The Taking of Twenty-Eight,quotes Linda Ryan-Nye as saying, after the writing battle was over 20 years ago, that although constitutional equality was "a helluva lot to lose it was not a helluva lot to gain." Rights still have to be claimed after the writing is over. Twenty years after the Charter, most of the work remains to be done, at least in terms of realizing the Charter’s promise for those living in poverty, most of whom are women. Our Charter, informed by its history and nurtured with new developments in international human rights, is a solid foundation on which social and economic rights can be claimed by the most disadvantaged in society. But we need to make place for people living in poverty in our rights revolution.

When people living in poverty have brought forward claims under sections 7 and 15 of the Charter, the primary vehicles for giving domestic effect to international human rights obligations, have been told, essentially, that their issues of equality and security are not included under the Charter. Rather than attracting additional judicial attention and concern because their claims intersect with internationally recognized social and economic rights, their claims have been rejected for this reason. Let me give three examples which have been particularly disturbing to the U.N. Committee on Economic, Social and Cultural Rights.

Eric Fernandes, a person with a severe degenerative muscular disease, argued that his rights to equality and security ought to include special assistance for attendant care necessary for him to live in dignity in his home rather than be confined for the rest of his life to a hospital room. Under international law this would be a straightforward claim to adequate housing and medical care and under the Charter, it would seem to be a straightforward claim to substantive equality. The Manitoba Court of Appeal, however, rejected this claim precisely because it was a claim to a right to adequate housing. The Court stated that "the desire to live in a particular setting does not constitute a right protected under s.7 of the Charter." As for the rights of persons with disabilities to positive action by government, the Court found that this right does not extend to disabled people who are poor:

The court nevertheless accepted the pleadings of the Attorney General of Ontario "that the plight of welfare recipients, although urgent and serious, relates to their inability to provide for themselves." O’Brien J. found that "S. 7 does not provide the applicants with any legal rights to minimal social assistance. The legislature could repeal the social assistance statutes... "

Both of these cases were denied leave to the Supreme Court of Canada. Ironically, it is Canada’s first Charter challenge to poverty and homelessness, launched in 1989, which will be the first to be heard by the Supreme Court.

Louise Gosselin was subject to cuts in social assistance in Quebec imposed in 1985, which reduced the assistance for those who were employable and under 30, not engaged in workfare or training programs, from $434/month to $158/month. It was largely undisputed that no one can find adequate food, clothing and housing in Montreal for this amount. Ms. Gosselin was periodically homeless and slept in shelters. When she rented a room in a boarding house she had no money left for food. A man from whom she was receiving food attempted to rape her. She resorted at times to prostitution and to making herself sexually available to a man for whom she had no affection in exchange for shelter and food.

The trial judge rejected Ms. Gosselin’s claim largely on the basis that economic or social rights such as the right to an adequate standard of living, protected under international human rights law, are not enforceable rights under the Charter. Poverty, the judge found, is frequently the result of "internal" causes. Poor people, he noted, smoke at twice the average rate of Canadians, are under-educated, psychologically vulnerable and have a weak work ethic. The Quebec Court of Appeal upheld the decision, but the dissenting judgment of Robert, J., relied drew extensively on the fundamental importance of social and economic rights in international law as an interpretive framework for human rights legislation and the Canadian Charter.

The lower court decisions in all of these cases show a common theme - that the substantive approach to equality or security of the person as affirmed by the Supreme Court in other contexts, ought not to be applied to address poverty and homelessness. To do so, the courts seem to believe, would be to read into the Charter social and economic rights. While it defies common sense to suggest that the deprivation of adequate food, clothing and housing in these cases did not engage directly the equality and security interests protected by the Charter, the lower courts rejected these claims essentially because the claimants’ disadvantage was, in part, linked to their poverty, and to remedy poverty or homelessness is to grant a remedy for a violation of an "economic" right.

Courts in these and other cases in which poor peoples’ Charter claims have been dismissed have also made reference to concerns about the unique competence of legislatures to determine matters of social and economic policy. It is noteworthy, however, that in none of the cases was the challenged decision a legislated one. Most of the decisions engaging poor peoples’ equality and security, in fact are regulatory changes and administrative decisions, made behind closed doors, with no hearings, no consultation and no debate.

This is not to say that courts ought not to avoid unnecessary tampering with legislative decision-making. Finding the line, and developing the criteria for making these distinctions is an ongoing project. The distinction between social, economic and cultural rights on the one hand, and civil and political rights on the other, however, seems to be of no value in distinguishing between when courts ought to intervene and when they ought to defer to parliament. At worst, it encourages courts to abandon those who need their protection the most . As Justice McLachlin (as she then was) put it:

The Supreme Court, it seems, has begun to chart a different course than that followed by the lower courts in poverty related cases. Rather than declaring certain categories of rights claims to be non-justiciable because they engage with social and economic rights, the Court has found it preferable to exercise appropriate deference in the context of particular cases, and at various stages of the Charter analysis. In the Eldridge, for example, the Court left it up to the government to choose from the "myriad options available to the government that may rectify the unconstitutionality of the current system." The South African Constitutional Court followed the same approach in its recent decision with respect to the right to housing, mandating the South African Human Rights Committee to work with the various levels of government in fashioning an appropriate remedy. In this way, courts and legislators may fashion new relationships to meet the new challenges of poverty and homelessness.

Perhaps, if my optimism about the Supreme Court proves ill founded, I will be arguing, a year from now that we must re-write the Charter to protect the fundamental rights of those in Canada whose equality and security is assaulted daily by the ordeal and indignities of poverty. I hope, instead, to be applauding the Supreme Court’s decision to allow Ms. Gosselin’s appeal and that all of us will be explaining to Jeffrey Simpson that the Court did not re-write the Charter or read new rights into it, so as to give judges more power to make social policy. Rather, we will explain, the Court read the Charter right and decided to include poor people in our constitutional democracy, which may not, after all, prove so old at 20.