Ontario’s loss of a court case could prevent U.S.-style reforms from happening here

by Colby Cosh

DO Canadians want a constitutionally protected right to government services and welfare handouts? In 1992, they had the chance to adopt one by voting for the Charlottetown Accord and its attached “social charter,” which would have made the welfare state basic law of the land. Charlottetown, if it had passed, would have committed Canadian governments to perpetually providing “adequate social services and benefits to ensure that all individuals resident in Canada have reasonable access to housing, food and other basic necessities.” But the voters apparently did not find this plum too attractive: they rejected Charlottetown overwhelmingly.

In just ten years’ time, Canadian high courts have moved some distance toward creating an unwritten social charter--one, moreover, which is “justiciable” (enforceable by the courts), in a way that the social provisions of the Charlottetown Accord were not intended to be. When Canadians rejected a constitutional pact containing so-called “social and economic rights,” the judges have simply leapfrogged and implemented those rights by judicial decree. The final success of the manoeuvre, however, still rests in the hands of the Supreme Court.

Traditionally, claims on the welfare state have been largely considered non-justiciable. If a province should choose to deny welfare to a certain class of persons, that has been its own business, as far as the courts were concerned. With the advent of the Charter of Rights (1982), section 15 placed limits on governments’ ability to discriminate between recipient classes. Individuals must be treated equally before the law, s.15 says, without respect to “race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” In the field of welfare, these enumerated grounds seem relatively non-controversial, but the impact of s.15 on policy-making has been growing ever larger. On May 13, it struck its hardest blow yet with the Ontario Court of Appeal’s decision in the “spouse in the house” case (Falkiner et al. v. Director, Income Maintenance Branch).

Sandra Falkiner and her fellow respondents in the case are unmarried Ontarian women with children. In 1995, the frugal Harris government was trying to reduce the welfare rolls, and one step they took was to change the existing “spouse in the house” eligibility rule. Beforehand, a woman or man could live in a common-law relationship for three full years before losing his or her eligibity to receive welfare payments as a single parent. The Conservatives wished to treat common-law couples the same as married ones, and to get people cohabiting with affluent spouses off the rolls. Ms. Falkiner’s group argued that a woman should have the right to shack up on a “try-on” basis without losing her welfare eligibility.

Section 15 offers no explicit protection at all to welfare recipients or single mothers, as classes. But the Canadian Civil Liberties Assocation and LEAF (the Women’s Legal Education and Action Fund) joined Falkiner and co. in their court fight, arguing that single motherhood and poverty are “analogous grounds” which should receive s.15 protection. In 2000, the Ontario Divisional Court agreed, and in May, so did the Ontario Court of Appeal. There were other issues involved, but the key to the appeal court decision, written by Justice John I. Laskin, was the “analogousness” analysis. He found that the women had a good claim to sex discrimination because the policy affected far more women than men; that “receipt of social assistance” was a characteristic analogous to one’s race or age, even though it is admittedly changeable; and that the court’s interference with government welfare arrangements would further the cause of “human dignity.”

In short, a new constitutional right was created where none had existed before. It is an astonishing development. A new paper issued by the Ontario Human Rights Commission (OHRC) (“Domestic Implementation of Economic and Social Rights”) lists a whole series of past lower-court decisions in which welfare supplicants were told by judges that their “economic rights” were non-justiciable. In Masse v. Ontario (1996), an across-the-board welfare cut was challenged in Ontario Superior Court on the ground that it would disproportionately hurt the especially vulnerable, but the majority rejected the suit, announcing that “much economic and social policy is simply beyond the institutional competence of the courts.” A concurring judge agreed, stating flatly that a court has no power “to second-guess policy/political decisions.” In the famous Gosselin case in Quebec, brought by a young woman whose benefits were cut to $170 a month when she refused to enter a workfare program, the Quebec Court of Appeal reached a similar conclusion: “The courts cannot substitute their judgment in social and economic matters for that of legislative bodies.”

The argument in the Gosselin case was a little different from that in Falkiner. Louise Gosselin’s claim is based on Charter section 7, which guarantees “life, liberty, and security of the person,” rather than s.15. But so far, both s.7 and s.15 claims to economic rights have run up against the same pitfall--the long-standing determination that courts cannot, and will not, make policy. Gosselin has been heard by the Supreme Court of Canada, but no decision has been handed down yet. The Ontario government intends to appeal Falkiner to the Supreme Court as well. “The intent of our policy is to treat married and common-law couples alike and protect the system for those who need it the most,” said Community, Family, and Children’s Services Minister Brenda Elliott May 27. Attorney General David Young added that the court’s interference has “far-reaching implications for governments across Canada.”

The question now is, which way will the Supreme Court jump? As a general rule, higher courts in Canada are more likely to favour the creation of new rights than lower ones. (The OHRC’s paper on social and economic rights notes that lower courts are less likely to be aware of “international” practices and standards, which in this case, of course, heavily favour the constitutionalization of welfare.)

Furthermore, there is a clear precedent. Similar and repeated efforts to make s.7 and s.15 arguments for expanded medicare services crashed into the lowers courts’ hands-off attitude until the Supreme Court’s 1997 ruling in the Eldridge case. Robin Eldridge was a deaf woman who successfully (along with two other plaintiffs) convinced the court to force the B.C. Medical Services Commission to make sign-language interpreters available to all patients. In the decision, Justice Gerard Laforest denounced the B.C. government’s “thin and impoverished vision” of s.15. His words created instant headaches for Canadian health administrators and a new cottage industry in suing for medicare rights.

If the same thing happens to welfare, Canada may lose any chance it has at implementing enduring reforms and closing the “welfare gap” between itself and the United States. Canadian jurisdictions, notably Alberta and Ontario, have succeeded in taking large numbers of employable individuals off the welfare rolls. But even Alberta, where economic conditions are the best in Canada, would only be in the middle of the pack among U.S. states in terms of the number of public-assistance recipients. In 1990, about 5% of Americans and 7% of Canadians received welfare. The U.S. national caseload reached a peak of about 5.5% in 1994, but Canada’s exploded to nearly 11%. Since then, both countries have declined in lockstep, but the gap remains about 5%. Fewer than 2% of Americans now receive social assistance.

The American success is directly attributable to the 1996 passage of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA). The need for welfare reform had become so obvious to Americans that Democratic President Bill Clinton was willing to sign the bill into law. The federal bill contained language unthinkable to Canadians in its preamble, stating explicitly that among its goals was the promotion of marriage and the family. It has not escaped the attention of Americans, conservative and liberal, that married persons, and children of married persons, do better in a vast number of social wellness indicators. They have higher incomes, lower rates of domestic violence, lower rates of suicide, lower rates of child abuse, lower rates of school expulsion and imprisonment, et cetera ad nauseam.

The extreme left vilified America’s welfare reforms (and the president who assented to them), and even sympathetic commentators doubted whether social policy alone could reverse the multi-decade decline of American marriage. But according to a recent Heritage Foundation review of PRWORA’s effects, predictions of disaster and starvation have not come true. “Some 2.3 million fewer children live in poverty today than in 1996,” they report. “Decreases in poverty have been greatest among black children. Hunger among children has been almost cut in half...[and] the explosive growth of out-of-wedlock childbearing has come to a virtual halt.”

Chris Schafer of the Fraser Institute noted in the June Fraser Forum that a court-mandated “right to welfare” could make it impossible for Canadian governments to reproduce this success, and even existing reforms could be threatened. “For example,” he notes, “the Ontario requirement that a person who refuses to participate in a workfare program can be cut off welfare for up to six months may...violate s.15 of the Charter because of the protected or analogous nature of welfare recipients. [U.S.-style reforms], such as ending the entitlement to welfare by imposing a time limit on assistance and immediate work requirements combined with ‘full-cheque’ sanctioning of a recipient’s monthly welfare income upon the first instance of non-compliance with welfare provisions, may also be deemed a violation.”

The creation of a right to welfare could, in short, establish the welfare state and its allied social effects as a permanent feature of Canadian life. The potential monetary costs to governments are unknown, but Fraser Institute researcher Sylvia Leroy is just beginning a project to assess the social costs of recent constitutional rulings. She will not be pleased if she has to add Gosselin to the list in upcoming months, but she is perhaps equally concerned about the philosophical effects of the justiciable-right-to-welfare attitude.

“The ‘spouse in the house’ ruling treats being on welfare as a characteristic like the stated s. 15 grounds, and that, to me, tells these people that they are doomed to this condition,” she says. “It goes against all the core beliefs of the broad Canadian public, and serves only the interests of people who benefit from the existence of a permanent underclass.”