Ch 12

Question 1

Does the charter explicitly recognize social or economic rights?

Answer 1

• no explicit guarantee of social or economic rights in the charter, instead the charter protects civil and political rights
• civil and political rights considered distinct from social and economic rights
• litigation thus far has resulted in the defeat of poverty related cases because those kinds of claims have been characterized as social or economic rights and thus treated as beyond the scope of the charter
• socioeconomic rights are difficult to reconcile with the charter because they sit uneasily alongside the traditional conception of judicial review (only negative obligations), poverty related claims asks the court to place positive obligations on the state

Question 2

Gosselin v Quebec

Answer 2

• involved a challenge to Quebec legislation that governed its welfare scheme in place between 1984 to 1989, this provincial policy afford a different age groups different benefit levels and the dividing line was an age base distinction of 30
• welfare recipients under the age of 30 received only a third of the amount that those over 30 received, however, the under 30s could raise their benefit levels within $100 of the over 30s if they participated in any one of three educational or work experience programs, the under 30s not enrolled in the program we’re receiving $170 month (not enough to live on)
• if gosselin had won, the lawsuit would have cost the province $389 billion
• gosselin tried all three government programs but dropped out of them due to drug and alcohol programs and psychological issues, she argued that the legislation violated two different charter rights: age discrimination (section 15) and section 7 (security of the person), stated this entitled her to some baseline level of social assistance, welfare payments made it harder to find work
• Quebec government argued that the reduced rate for the under 30s helped Quebec youth rather than harming them, remedial in nature, trying to improve conditions for that group not discriminate against them, second, the under 30s need to be forced off welfare for their own good (bad effect on future), third, the situation that gosselin found herself in was a result of her own choices (choice v circumstance)

Question 3

Choice vs circumstance - gosselin

Answer 3

• distinction comes out of the liberal theory, reflected in the structure of section 15 quality rights, distinction between unfortunate choices and unfortunate circumstances, this distinction guides the government when deciding if the government is required to provide relief to address inequality, liberals argue people should not face disadvantage because of circumstances beyond their control

Question 4

Is poverty immutable?

Answer 4

• it is a consequence of your own choices, according to the Supreme Court of Canada Gosselin was responsible for her own circumstances
• 5-4 split decision on the SCC case, the majority find legislation did not infringe section 7 or 15 and upheld the legislation, no age discrimination, section 7 not violated because section 7 had generally been interpreted as restricting the states ability to deprive individuals in the context of the justice system, Second, the court said if they looked at the president, section 7 had never been used to place positive obligations on the state
• The minority found the legislation did violate section 15 and could not be saved under section 1, two of the four justices found a section 7 violation
• dissenting justices focussed on the fact that the government acknowledged that you could not live on $170 a month, found education programs to be deficient, 30,000 placements but 85,000 recipients, only 11% of benefit recipients under 30 we’re actually receiving a higher amount

Question 5

Brodsky and day attack the distinction between social and economic and political and civil rights, on what grounds do they advance their argument?

Answer 5

• charter only explicitly protects civil and political rights, they say this is problematic to separate rights in this way, argue these different categories of rights are related to one another, interdependent and indivisible, the only way we can enjoy our civil and political rights is if we have a baseline of economic well-being only economically privileged enjoy all these rights

Question 6

Brodsky and Day argue that Gosselin should have been argued as a sex equality case under s. 15. What is the nature of their argument?

Answer 6

• poverty coincides with other amenable characteristics that are protected by the charter, women are enumerated rights holders under section 15, poverty and gender overlap, cuts are disproportionately felt by women
• say we can’t think of a woman’s poverty as a matter of choice, both socially and legislatively created
• Women tend to be caregivers, the tendency of women to work part time, division of labor, gendered income gap, women’s poverty is not about choice but about the systemic discrimination
• intensifies the effects of sexist social practices, reinforces pre-existing sex inequality, disproportionately affects women

Question 7

Falkiner v Ontario

Answer 7

• Ontario Court of appeal recognized a new analogous ground, single mothers receiving social assistance, intersectional that recognized women that were both single mothers and recipients of social assistance, the court of appeal used intersexuality to recognize gendered poverty as a ground of discrimination
• SCC did not advance this claim, the SCC has never adjudicated any s. 15 claim on the basis of multiple grounds

Question 8

How are gosselin and chaoulli related?

Answer 8

• chaoulli: involved a challenge to Quebec legislation which prohibited people from buying private health insurance for medical procedures that were already covered by the public system, attacked using section 7 of the charter and section 1 of a Quebec charter of human rights
• claimants were concerned with wait times, so bad that an inability to buy private health insurance amounted to a seven section violation, Supreme Court agreed and struck down, three justices in the majority relied on section 7 but one justice decided on the case section one of the Quebec charter
• gov argued the provision was necessary to protect the integrity of a public healthcare system in the province, those who are economically disadvantage will end up with inferior care, Supreme Court rejected this claim, government failed to establish a rational connection
• in 2002, premieres reached healthcare accord in the week of the Romanow commission report, made recommendations on the future of Canada‘s healthcare system, spent 15 million before they made recommendations, supported a publicly administered one tier healthcare system, rejected privatization of healthcare, judges are not healthcare experts
• peter thinks the supreme court should have ordered Quebec to do better, decrease wait times, when we combine chaoulli and gosselin, we see how the poor are harmed by the court, says these cases suggest that little has changed since 1982, the court has not used substantive equality, still led by liberal legalism, still cannot be used to place positive obligations on the government