Canada tests boundaries of 'entitlement'

Canada's high court will decide if welfare is a constitutionally protected right.

It's been 15 years since Louise Gosselin's monthly welfare check was cut from US $282 to $102 per month. Under Quebec's new Social Aid Regulation, enacted in 1985, welfare recipients between ages 18 and 30 had to enlist in job training or educational programs in order to maintain their level of monthly aid.

Then in her late 20s, Ms. Gosselin was one of thousands of Quebeckers who had their welfare benefits cut because they did not comply with the new law.

A high school dropout and daughter of an alcoholic father and a mentally ill mother, Gosselin drifted from place to place with her meager income, frequently hungry and cold, says her lawyer, Carmen Palardy. Arguing that the provinical government discriminated against her based on her age, which in turn violated her civil rights, Gosselin's court challenge has made it all the way to the Supreme Court.

Now, in a landmark case that pits five provincial governments against Gosselin and antipoverty activists, judges are being asked to decide whether welfare benefits are a constitutionally protected right. If Gosselin wins her class-action lawsuit, Quebec could face a bill of $250 million in back compensation for claimants. And Canada's 10 provincial governments would be forced to set their welfare rates according to judicial mandate rather than fiscal policy.

International conventions

Though Gosselin's case lacks legal precedent, Ms. Palardy and antipoverty interveners rely on documents including Canada's Charter of Rights and Freedoms (the equivalent of the US Bill of Rights), which guarantees life and "security of the person"; Quebec's rights charter, which promises "every person in need" the right to "an acceptable standard of living"; and the International Convention on Economic, Social and Cultural Rights.

That last document, part of the United Nations' Universal Declaration of Human Rights, signed by Canada and most other countries, also declares the right of everyone to an adequate standard of living.

The question before the court, Palardy explains, "is whether governments have an obligation to ensure everybody receives a minimum income when they are unable to work because of unemployment or sickness."

Gosselin simply "tried to get the Quebec government to make good on its own promises," says David Matas, a lawyer for the International Center for Human Rights and Democracy, based in Winnipeg, which joined the case on behalf of Gosselin.

Andre Fauteux, a lawyer for the Quebec government, says the government was not discriminating against any group, and that the Charter rights of Gosselin and others were not violated.

"In our view, no one was obliged to starve. If they were in need for food and lodging and so on, all they had to do was go to the [welfare] office and get into the program. No one was refused."

In the mid-1980s, he explains, Quebec's government was managing an economic crisis and debt by cutting spending and trying to move people off welfare through work and school programs. While critics argue that neither government program had adequate funding to match the high unemployment rates of the time, Mr. Fauteux says there were in fact spots for everyone.

He did not explain why so many people chose not to enroll. Almost all states that provide welfare assistance have regulations that pay different rates to different classes of people, he adds, so there was no discrimination.

Fauteux adds that the international conventions have no legal force in Canada and should be seen only as statements of good intentions. To rule in favor of Gosselin would open the floodgates to frivolous law suits by welfare recipients who claim their monthly checks are not enough for an adequate living standard.

Role of courts tested

According to Mr. Matas, courts in the past have upheld cases based on civil and political rights, but not economic, social, or cultural rights. His group says it is the province of the Supreme Court to enforce all of them.

"We said they're the same and the courts should enforce them both," he says. The amount of money the Quebec government was paying people under 30 who weren't in the programs, he points out, was "conceded to be one-third the subsistence level in Quebec. And we argued that it should at least be at the level one can survive.... You can't use starvation as an incentive to workfare," he says.

The National Association of Women and the Law, another intervener, points out that Gosselin, like other women in poverty, was forced by circumstance to sell sexual favors to survive.

Lawyers for the governments of British Columbia and Alberta argue that Gosselin's Charter rights were not violated, because the government did not cause Gosselin's poverty, and warn that upholding her claim would derail government efforts to reduce poverty through mandatory education and training programs.

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