N° 27418

I, J. Bruce Porter of the District Municipality of Muskoka, Province of Ontario, MAKE OATH AND SAY:

1. I am the Co-ordinator of the Charter Committee on Poverty Issues ("CCPI") . As such, I have knowledge of the matters to which I hereinafter depose.

CCPI

2. CCPI is a national coalition founded in 1989 which brings together low-income activists and poverty law advocates for the purpose of assisting poor people in Canada to secure and assert their rights under international human rights law, the Canadian Charter of Rights and Freedoms ("the Canadian Charter"), human rights legislation and other laws in Canada. CCPI has initiated and intervened in a significant number of cases in order to ensure that poverty issues are presented in a manner that is directed by and accountable to low-income people themselves and are properly considered by courts and tribunals.
3. CCPI consults with a large number of organizations and individuals across Canada in developing its positions on particular issues. It has received funding from the Court Challenges Program of Canada to research many issues dealing with the application of section 15 of the Canadian Charter to poor people. It has also received funding from charitable foundations, from Status of Women Canada and from the Federal Department of Justice to research the application of international human rights law to the Canadian Charter and to participate in reviews of Canada before the United Nations Committee on Economic, Social and Cultural Rights and the United Nations Human Rights Committee.

CCPI’s Knowledge and ExpertiseCCPI’s Knowledge and Expertise

4. The activities of CCPI include: legal research and consultation on subjects of concern to poor people; test case litigation to challenge alleged violations of the rights of poor people; interventions on behalf of poor people in important cases which may affect the application of the Canadian Charter or other law to poverty issues; public education about the sources of human rights protections for poor people; appearances before United Nations Committees monitoring compliance with international human rights norms of importance to poor people and collaboration with Non-Governmental Organizations in other countries in the promotion of effective domestic remedies to violations of the human rights of poor people.
5. CCPI has engaged in legal research on a wide variety of subjects of concern to poor people, including::

1. the relationship between Canadian Charter rights and the human rights recognized in international law;
2. poverty, "social condition" and "receipt of public assistance" as forms of discrimination which should be prohibited under s.15 of the Canadian Charter;
3. access to justice by poor people and Aboriginal people and the impact of sections 7 and 15 of the Canadian Charter on the availability of state-funded counsel;
4. the constitutionality of a "special programs" defence in human rights and the implications of section 15(2) for poor people;
5. the extent of Federal responsibilities under international law, sections 7 and 15 of the Canadian Charter and section 36 of the Constitution Act, 1982 to ensure the provision of adequate financial assistance to persons in need;
6. the constitutionality of the clawback of the National Child Benefit Supplement from families on social assistance;
7. homelessness in Canada as a violation of the right to life and security of the person under the International Covenant on Civil and Political Rights and under the Canadian Charter;
8. the relationship between social and economic rights recognized under international human rights law and women’s equality rights under the Canadian Charter and human rights legislation; and
9. the role of financial costs when raised as a section 1 argument under the Canadian Charter.

6. CCPI has intervened in a number of important cases at the Supreme Court of Canada and at lower courts and tribunals, raising issues of concern to people living in poverty. CCPI’s interventions before the Supreme Court of Canada have included the following:

Lovelace et al. v. Ontario et al., (2000 SCC 37) in which CCPI argued that section 15(2) of the Canadian Charter ought to be interpreted so as to ensure that poor people enjoy the full protection of section 15 from discrimination in ameliorative programs, and so as to recognize the positive obligations on governments to ameliorate the inequitable socio-economic conditions of Aboriginal Communities in Canada consistent with the findings of international human rights treaty monitoring bodies;

J.G. v. Minister of Health And Community Services (New Brunswick) et al, [1999] 3 S.C.R. 46, in which CCPI argued that governments are required by section 7 of the Canadian Charter to take positive measures to ensure the provision of legal aid in custody cases in which liberty and security issues of parents and children are at stake;

Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817, in which CCPI argued that administrative discretion must be exercised, wherever possible, in conformity with international human rights law and that sections 7 and 15 of the Canadian Charter are primary vehicles through which international human rights law can be given domestic effect;

Eldridge v. A.G.B.C., [1997] 3 S.C.R. 624, in which CCPI argued that section 15 applies to social and historical disadvantage whether or not it exists independently of government action, and that governments are required by section 15 to act affirmatively to ensure that persons who are deaf enjoy the same benefit of public health services as the hearing population;

Thibaudeau v. Canada, [1995] 2 S.C.R. 627, in which CCPI made submissions jointly with other groups respecting the interpretation of Charter rights in a substantive and purposive fashion recognizing the positive obligations on governments to address unacceptable levels of poverty among single mothers in Canada;

Walker v. Prince Edward Island, [1995] 2 S.C.R. 407, in which CCPI argued that the Court should not confuse the economic rights of advantaged groups with those which are protected as fundamental human rights under international human rights law, such as the right to food and housing contained in international covenants ratified by Canada;

R. v. Prosper, [1994] 3 S.C.R. 236, in which CCPI argued that in light of the requirements of fundamental justice and the principles of equality underlying ss. 7 and 15 of the Canadian Charter, circumstances of poverty and disadvantage should not be a barrier which would deny access to fundamental rights and fairness in our justice system, including the right to effective representation by counsel; and

Symes v. Canada, [1993] 4 S.C.R. 695, in which CCPI argued that the Canadian Charter ought to be applied with equal rigour in the social and economic domain as in other areas of government activity and that deference to the role of parliament and legislatures should be exercised at the remedial stage rather than invoked as a shield to effective Charter scrutiny.

7. CCPI believes that in all of the above cases, our submissions were of importance to the Court as reflected in the Courts’ written decisions. CCPI is well known for bringing to courts’ attention relevant and important concerns which are not raised by other parties. A selection of CCPI’s written material (facta, written submissions, research papers, etc.) are published on our internet web site at: <www.web.net/ccpi>. These are frequently cited and used by researchers and advocates across Canada and internationally.

Representations Before UN Human Rights Bodies

8. In 1993, 1995 and again in 1998, CCPI was granted permission to make oral and written submissions before the U.N. Committee on Economic, Social and Cultural Rights ("CESCR") regarding Canada's compliance with the International Covenant on Economic, Social and Cultural Rights ("ICESCR"}.
9. In 1993, CCPI made submissions to the CESCR with respect to how the security interests in s.7 of the Canadian Charter were being argued in litigation by provincial governments. The pleadings and the decision at trial in Gosselin v. Québec ("Gosselin") were provided to the Committee by CCPI to highlight how the approach which governments took to the interpretation of s.7 in Court, and the approach taken by some lower courts, appeared to be inconsistent with the ICESCR. In its Concluding Observations (issued 10 June, 1993), the CESCR quoted directly from the lower court decision in Gosselin when it expressed concern that "in some court decisions, and in recent constitutional discussions, social and economic rights have been described as mere ‘policy objectives’ of Governments rather than as fundamental human rights." The Committee further expressed concern about the government’s pleadings in Gosselin and other cases, noting:

That some provincial governments in Canada appear to take the position in courts that the rights in article 11 of the Covenant are not protected, or only minimally protected, by the Charter of Rights and Freedoms.

10. At Canada’s third periodic review under the ICESCR in December, 1998, CCPI again urged the CESCR to review closely Canada’s position as to whether fundamental social and economic rights are protected by sections 7 and 15 of the Canadian Charter. The ongoing Gosselin case was again cited by CCPI, as well a number of other cases in which lower courts had interpreted the Canadian Charter as excluding remedies to violations of social and economic rights, even where equality and security were directly engaged. In its Concluding Observations (issued 4 December, 1998) the Committee reiterated that it " is deeply concerned at the information that provincial courts in Canada have routinely opted for an interpretation of the Charter which excludes protection of the right to an adequate standard of living and other Covenant rights."
11. In April, 1999, CCPI made oral and written submissions to the United Nations Human Rights Committee on the occasion of Canada’s fourth periodic review for compliance with the International Covenant on Civil and Protected Rights (ICCPR). CCPI presented extensive evidence with respect to social assistance rate cuts and homelessness and urged the Human Rights Committee to consider this evidence with respect to Canada’s obligations under article 6 of the ICCPR (the right to ‘life’) as well as under various provisions guaranteeing equality without discrimination. On the basis of this and other evidence, the Human Rights Committee, in its Concluding Observations, expressed concern that social program cuts had had discriminatory consequences for women, Aboriginal People and others, and recommended that Canada "take positive measures required by article 6" to address the growing problem of homelessness.
12. On all of these occasions, CCPI provided extensive reviews of relevant Canadian jurisprudence as well as government pleadings in Canadian Charter litigation and focused its submissions on Canada’s obligation to provide effective legal remedies to violations of rights recognized in the Covenants, particularly by interpreting domestic legislation in a manner which is consistent with these rights.
13. CCPI’s expertise in issues of human rights and poverty is widely recognized around the world and has been described in numerous international publications. I and other members of CCPI have been invited by many international human rights organizations and bodies to present papers describing CCPI’s unique work and expertise. I have presented papers on the work of CCPI in many domestic and international venues at the invitation of, among others, the United Nations High Commissioner on Human Rights, the International Human Rights Internship Program, the United Nations Centre for Human Settlements and the Constitutional Assembly of South Africa.

CCPI's Interests in this Appeal

14. Gosselin is the first case to come before this Court under the Canadian Charter in which the adequacy of social assistance rates has been at issue. It is the first case under the Canadian Charter to squarely raise the question of whether the scope of interests protected by s.7 includes the right to a level of social assistance necessary for personal security and dignity. It is also the first case before this Court to address the question of whether the provision of a manifestly inadequate amount of social assistance to people under 30 violates their equality rights in s.15 of the Canadian Charter, and, by extension, the rights of members of other disadvantaged groups who rely on social assistance programs.
15. This is also the first case in which the Court will construe and apply the social and economic rights provisions of s.45 of the Quebec Charter of Human Rights and Freedoms (Q.R.S., c. C-12) ("the Quebec Charter") or consider the extent to which internationally recognized social and economic rights, particularly the right to an adequate standard of living, are protected by way of sections 7 and 15 of the Canadian Charter.
16. The questions raised by all these issues are at the core of CCPI’s raison d’être and activities since its founding in 1989, and have been the subject of extensive research as well as of submissions before courts and international bodies by CCPI. CCPI’s unique expertise in the issues raised by the Gosselin case has been recognized by various United Nations agencies and bodies, by Canadian and international scholars and by human rights groups in other countries.

 

 

CCPI’s Intended Submissions on the Appeal

17. If granted leave to intervene, CCPI will supplement the Appellant’s arguments that the impugned provision of the Règlement sur l'aide sociale, R.R.Q., 1981, ch. A-16, r.1 violate her rights under s.45 of the Quebec Charter as well as under ss.7 and 15 of the Canadian Charter in a way which is not saved by s.1 of the Canadian Charter; CCPI will argue that ss. 7 and 15 of the Canadian Charter and s.45 of the Quebec Charter include legally enforceable protections for the right to an adequate level of financial assistance for those in need, a right which is at the core of the social and economic rights binding on Canada under international law.
18. In particular, CCPI will submit, with respect to section 7 of the Canadian Charter that:

1. The protected interests in s.7 to "life" and "security of the person" are ones which include the right to an adequate income for people in need. This position will be based on Canada’s international human rights obligations, on an interdependent and contextual reading of Canadian Charter rights, and on the values of dignity, security and equality enshrined in the Canadian Charter and in s.36 of the Constitution Act, 1982;
2. The right of everyone to life and security of the person in s.7 creates a positive obligation on governments to ensure those rights are respected for people in need of assistance;
3. On the facts of this appeal, the Quebec government’s social assistance regime for people under 30 years of age did not comply with the "principles of fundamental justice" because:

i) The ‘workfare’ option to receive a higher social assistance rate was illusory as there was an inadequate number of positions available;

(ii)The workfare scheme itself was premised on a stereotype about social assistance recipients under age 30 needing to be coerced to seek and accept employment; and

iii) The regime violated principles of dignity and equality.

19. With respect to section 15 of the Canadian Charter, CCPI will submit that:

(a) The dignity and equality interests of the people subject to the impugned legislation scheme were violated inasmuch as a manifestly inadequate amount of social assistance was being provided, leaving them unable to meet even basic necessities;

(b) The guarantee of an adequate level of financial assistance to persons in need, as was contained under the Canada Assistance Plan agreement, is a component of the right to substantive equality for those disadvantaged groups who must rely on social assistance; and

(c) The impugned scheme was premised on stereotypical and discriminatory assumptions about a group of people (i.e., those adults under age 30 in need of social assistance) as inherently lacking the motivation to seek and accept employment and/or training on their own initiative, contrary to equality rights principles.

20. With respect to section 1 of the Canadian Charter, CCPI will submit that:

(a) The objectives of the legislation are in and of themselves, discriminatory and thus, not "pressing and substantial objectives";

(b) The objectives and values embedded in the impugned scheme, and the means chosen to achieve them, are incompatible with the norms of a "free and democratic society". Those norms, it will be argued, are to be derived from domestic and international human rights values and principles, including dignity, autonomy, equality and social justice.

21. With respect to section 45 of the Quebec Charter, CCPI will submit that:

(a) S. 45 of the Quebec Charter enshrines fundamental social and economic rights, not simply as unenforceable policy objectives of governments, but as rights which are properly subject to judicial consideration and remediation;

(b) In considering the phrase "provided for by law" in section 45, the Court ought to consider law in a broad context, including Quebec’s obligations pursuant to Canada’s international human rights commitments and pursuant to the Federal-Provincial agreement under the Canada Assistance Plan;

(c) The impugned scheme fails to meet the standards required by s.45.

The Usefulness CCPI’s Intended Submissions

22. CCPI’s intervention will be of great benefit to the Court in view of the depth of CCPI’s research and experience for over a decade in Canada and at the United Nations in relation to the issues that are directly raised in this case.
23. CCPI’s submissions will be developed by a ‘project team’ made up of people who have experienced poverty, legal advocates, and scholars whose primary areas of expertise are the issues before the Court in this case. CCPI’s presence in the appeal will ensure that the group most affected by the broader issues before the Court will be heard.
24. A particular focus of CCPI’s submissions will be on the appropriate application

of s. 7 of the Canadian Charter to the adequacy of social assistance and requirements

placed on recipients with respect to work and training. In distinction to the approach taken by the Appellant in the courts below, CCPI will argue that section 7 imposes, ab initio, positive obligations on governments to provide an adequate level of financial assistance to those in need, consistent with Canada’s obligations under the ICESCR, the ICCPR and other international covenants, and the domestic context within which section 7 was adopted.

25. A further distinctive focus of CCPI’s intervention will be on the question of judicial deference. CCPI will argue that it is important to distinguish between inappropriate judicial encroachments on the legislature’s responsibility for designing and implementing social programs, and the proper judicial role of safeguarding the dignity and security interests of the most vulnerable in society, consistent with fundamental constitutional guarantees. CCPI will therefore argue that while deference ought to be considered at the remedial stage, it ought not to be used, as it was by the courts below, to narrow the scope of the Canadian Charter in such as way as to exclude the most significant issues of dignity, equality and security of those living in poverty.
26. This affidavit is made in support of a motion by the Charter Committee on Poverty Issues for leave to intervene in this appeal, to file a factum and to present oral argument through CCPI's legal counsel.

SWORN BEFORE ME at the Town )

of Huntsville in the Province of Ontario ) J. BRUCE PORTER

this 21st day of September, 2000 )

A Commissioner of Oaths

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