This material is reproduced with permission from the copyright holder. Please cite as 8 Canadian Journal of Women and the Law 371.

L'abrogation du Régime d'assistance publique du Canada (RAPC) lors du budget federal de 1995 et son remplacement par le nouveau Transfert canadien en matiere de santé et de programmes sociaux (TCPS) ont été généralement décrits comme les changements les plus importants ayant été apportés aux politiques sociales du Canada depuis presque trente ans. Dans cet article, l'auteure evalue les effets de ces changements sur les programmes et les services d'assistance sociale qui sont financés par le gouvernement fédéral, en vue de proposer des modifications au TCPS afin qu'il reflete mieux l’égalité des femmes et qu'il la favorise davantage.

The repeal of the Canada Assistance Plan (CAP) under the 1995 federal Budget, and the establishment of a new "Canada Health and Social Transfer" (CHST) in its place, have been widely described as the most important social policy changes in Canada in almost thirty years. The paper assesses the implications of these changes for federally-funded welfare programs and services, with a view to suggesting how the CHST might be amended to better reflect and promote women's equality.

The repeal of the Canada Assistance Plan (CAP)¹ under the 1995 federal Budget Act,² and the establishment, under the Federal-Provincial Fiscal Arrangements [End of Page 371] Act,³ of a new "Canada Health and Social Transfer" (CHST) in its place,⁴ have been widely described as the most important social policy changes in Canada in almost thirty years.⁵ While the impact of this reform will be felt throughout Canadian society for years to come, its immediate and long-term consequences will be particularly significant for Canadian women. More women than men in Canada are poor in absolute terms, and among the poor, sole support mothers, aboriginal women, elderly women, and women with disabilities are among the very poorest.⁶ Their social and economic circumstances make it more likely that women will need to rely on income support and other welfare-related programs [End of Page 372] and services at some point in their lives.⁷ Any changes in the design or funding of such programs must therefore be carefully weighed for their possible impact on women.

Surprisingly, given the compelling evidence to this effect brought before the Standing Committee on Human Resources Development and the federal Finance Committee in the period leading up to the February 1995 Budget Act,⁸ there is no sign that the federal government took such gender-based concerns into account in its decision to repeal CAP or to adopt the CHST Rather, the CHST as it now stands has every potential to worsen the social and economic circumstances of low-income women in Canada, and so to increase the relative inequality of Canadian women as a group. This outcome is fundamentally at odds with the federal government's commitments under the Canadian Charter of Rights and Freedoms,⁹ as well as under numerous international agreements which Canada has ratified or endorsed in the field of women's rights.

Section 13(3) of the revised Federal-Provincial Fiscal Arrangements Act sets out an undertaking on the part of the federal government to enter into discussions with the provinces to develop a set of "shared principles and objectives" for CHST funded welfare programs and services. The Federal Plan for Gender Equality,¹⁰ developed in preparation for the Fourth World Conference on Women in Beijing, suggests that gender-related concerns will be addressed by the federal government in its negotiations with the provinces over new program conditions to [End of Page 373] be included in the CHST. The Federal Plan states in this regard:

In its review of social and economic policies, programs and funding arrangements, the federal government is examining the impact of [the social policy] reform process on women. As women's socio-economic realities differ from men's, the federal government will endeavour to address these factors with provinces and territories when developing principles and objectives that would underlie the new Canada Health and Social Transfer.¹¹

The following paper will examine the implications of the changes introduced under the 1995 Budget Act for federally-funded welfare programs and services, with a view to suggesting how the CHST might be amended to include conditions and principles which reflect and promote women's equality. To this end, the paper will first examine the national conditions which currently apply under CAP and the CHST, and will consider why national conditions under federally-funded social welfare programs are necessary to protect women's interests. Second, the paper will examine the sex equality and other individual rights guarantees contained under the Charter as well as under international agreements ratified by Canada, relevant to the issue of welfare program standards. The paper will then propose a revised set of national conditions and principles which should apply to all provincial welfare programs and services funded through the CHST. Finally, the paper will consider how provincial compliance with such conditions and principles might be ensured.

Adopted in 1966, CAP authorizes federal contributions, on a shared-cost basis, towards a wide range of provincial welfare programs and services, including social assistance, counselling and referral services, home-maker services, child care and child welfare programs, community development services, legal aid, and programs and services for persons with disabilities.¹² In order to be eligible for federal funding under CAP, provincial programs and services must meet a number of [End of Page 374] conditions. In particular, CAP requires that assistance be provided to any person in need, regardless of the reasons of the need for assistance;¹³ that levels of provincial assistance take into account the basic requirements of recipients, in terms of food, shelter, clothing, fuel, utilities, household supplies and personal requirements;¹⁴ that welfare services in the province continue to be developed and extended;¹⁵ that provincial residency requirements and waiting periods not be imposed;¹⁶ and that appeal procedures from decisions relating to assistance be made available.¹⁷ These CAP conditions have created a degree of national uniformity in the design and delivery of provincial welfare programs and services which would not otherwise have been possible.

As stated above, the 1995 Budget Act repeals CAP and its shared-cost approach in favour of the CHST - a block funding model for federal transfers to the provinces in the areas of health, post-secondary education and welfare. Pursuant to section 13(2) of the amended Federal-Provincial Fiscal Arrangements Act,¹⁸ CHSTs will consist of a combination of federal income tax room and direct cash transfers to the provinces. Federal contributions will no longer match provincial welfare expenditures, and total levels of federal spending will be set in advance.¹⁹ In contrast to the broad preventive and remedial objectives of CAP,²⁰ the stated purpose of the CHST is "to finance social programs in a manner that will increase provincial flexibility."²¹ Of the national conditions set out under CAP, only one continues to apply to provincial welfare programs funded under the CHST. In order to be eligible for a CHST, no period of minimum residency can be required or allowed by a province as a condition of receipt of social assistance.²² While this no-minimum residency requirements is of obvious [End of Page 375] importance to low-income women and men exercising their right, under section 6 of the Charter,²³ to move and to take up residence in another province, other CAP conditions of equal or greater significance to individual welfare recipients have been abandoned.²⁴

The CHST's relative unconditionality in relation to provincial welfare programs differs markedly from the approach to provincial health insurance plans. While federal health funding is rolled into the CHST (along with funding for welfare and ost-secondary education),²⁵ eligibility for federal transfers continues to be contin ent on provincial respect for the conditions set out under the Canada Health Act,²⁶ including the requirements that provincial health insurance plans be publicly administered, comprehensive, universal, portable, and accessible.²⁷ Indeed, while CAP conditions cease to exist, maintaining the national criteria and conditions (including the ban on extra-billing and user fees) in the Canada Health Act is identified as an express purpose of the CHST.²⁸

While CAP is far from perfect,²⁹ particularly in its failure to establish a clearer [End of Page 376] standard of adequacy in provincial benefit levels,³⁰ it is nevertheless a cornerstone of the Canadian welfare state. Federal standards and funding under CAP have ensured access to a minimum level of assistance and services on relatively equal terms and conditions in all parts of the country. The availability of this CAP-supported network of welfare programs and services has been particularly vital for women.³¹ For many women, such as those escaping from domestic abuse, those seeking support and counselling to deal with sexual assault, those relying on home-maker services to continue living independently, and those in need of legal aid services in civil or family law matters, or requiring subsidized child-care to remain in the workforce, CAP-funded services make the difference between life with a modicum of autonomy and life without any meaningful choices. For many other women, CAP ensures access to the most basic necessities of life: food, clothing and shelter for themselves and for their families. In light of the restructuring currently taking place in the Canadian economy and labour market, there is no doubt that women's need for such programs and services will only increase in the foreseeable future.³²

In social policy terms, through the requirement that provincial welfare programs provide assistance to all those in need, CAP has in effect established a basic right to welfare across Canada. CAP's role in this regard was confirmed by the Supreme Court of Canada in its decision in Finlay v. Canada (Minister of Finance), holding that the standards and conditions in CAP could be enforced [End of Page 377] through legal action by individual welfare recipients.³³ CAP's approach to welfare as a right, rather than as a mere "privilege" that may be extended or withdrawn by governments at will, is reinforced by the requirement that provinces establish an appeal process available both to those receiving benefits and to those applying for assistance in the first place. In this regard CAP promotes the move away from a nineteenth century "poor-law" conception of poverty as a matter of individual failing or choice, towards one that recognizes the systemic causes of poverty, and the corresponding obligation of governments to work towards reducing or eradicating it.³⁴

Given the current context of welfare reform in Canada, there is no question that abandoning CAP conditions relating to need, adequacy and appeals in favour of "increase[d] provincial flexibility" under the CHST represents a significant step backwards. Enhanced provincial flexibility has, in Canada, become a euphemism for a series of welfare reforms which are highly regressive and discriminatory in their impact on women and men who rely on welfare programs and services.³⁵ In particular, increased flexibility will undoubtedly reinforce the recent trend towards reintroducing individualized notions of deservedness into welfare programs and policies. For example, recent program reforms in a number of provinces have heightened distinctions between beneficiaries who are deemed to be "employable" and those who are not. Individuals identified as "employable", including sole support mothers in some provinces, have been subject to more onerous conditions for receipt of assistance. In some cases, welfare recipients classified as employable have seen an actual reduction in their level of benefits.³⁶ This focus on "employability" and the categorization of welfare recipients on that basis reflect stereotypic and historically discriminatory images of the deserving versus the undeserving poor - the "deserving" being those who are too old, too sick, or too disabled to find jobs or to support themselves without government assistance. As Sheilagh Turkington explains:

[End of Page 378]

The persistent theme in the emergence of the social welfare system in Canada ... is that social assistance is only available on a permanent basis to the "deserving" poor. Whatever assistance is available to the unemployed able-bodied poor must remain at a level low enough to provide an incentive to retain employment... The assumption ... is that there is employment available for the unemployed poor who are sufficiently motivated to find it.³⁷

In contrast to the entitlement approach underlying CAP, the program orientation promoted by the unconditionality of the CHST tolerates the view that "employable" welfare recipients are receiving assistance not because of an acute shortage of jobs across the country, because of heavy family responsibilities and the lack of affordable day care, or because of other social and economic barriers to education, employment and economic self-sufficiency which women especially face. Rather "employable" welfare recipients are portrayed as receiving assistance because they are lacking in a proper work ethic, because they choose to have children when they don't have a husband or other means to keep them, because they spend their money in inappropriate ways, or because they simply prefer to stay at home doing nothing while others work and pay taxes to support them.³⁸ Instead of striving to dispel such discriminatory attitudes, provincial governments have actively reinforced them through continuous reference to the problem of welfare fraud, the creation of welfare "snitch" lines, stepped-up home visits by welfare officers, and other intrusive measures designed to "weed-out" undeserving recipients. By abandoning any recognition of, or reference to, the structural causes of poverty or to governments' duty to address this problem, the CHST encourages the move towards reduction of welfare rolls instead of reduction of poverty as the primary focus of provincial welfare policy.³⁹ Given their socio-economic circumstances and the historic interplay between the state, the family and the market, this policy focus, like the stereotypes which underlie it, is especially [End of Page 379] harmful to women.⁴⁰

The absence of national conditions under the CHST also makes it harder for welfare to compete on an equal footing with health and post-secondary education for a fair share of increasingly scarce federal funds. As the Social Planning Council of Metropolitan Toronto expresses it:

[P]utting more money into the pot by folding together three programs will allow provinces the luxury of raiding one program to shore up another one. This pits Canada's quintessential social program, medicare, against the aspirations of the middle class - higher education - and against the needs of those seeking the help of last recourse: welfare. It is clear who the loser will be in this political calculus.⁴¹

While post-secondary education and health care programs enjoy widespread support among middle-class voters, welfare is by definition a program targeted to the most impoverished and disempowered segment of Canadian Society.⁴² As Robert Howse explains, scaling back or cutting welfare programs and benefits on an ad hoc basis is popular reform because:

[T]his kind of approach can be used to throw relatively more of the burden of deficit control or reduction on constituencies that are relatively disadvantaged and disempowered in the political process. Of course, governments may claim that cutbacks are actually focused on services that are unnecessary or ineffective. However, cutbacks of this nature have rarely been based on comprehensive policy reviews or rigorous [End of Page 380] cost/benefit analysis of the full range of existing programs.⁴³

The statistics cited at the outset of the paper⁴⁴ reflect the socio-economic disadvantage experienced by a disproportionate number of Canadian women. There is no question that the repeal of the national conditions set out under CAP will make this situation worse. Women in poorer provinces and in provinces with neo-conservative agendas have already expressed concern about the willingness or ability of provincial governments to continue to fund many gender-specific programs, such as rape crisis centres, battered women's shelters, and counselling programs for women at risk, without the incentive of targeted federal funds and a federal program framework.⁴⁵ Particular concern has also been expressed about the loss of shared-cost funding in terms of already strained provincial civil legal aid programs. Without continued targeted federal contributions, access by low income women to the civil justice system, particularly in family law matters, will be further jeopardized.⁴⁶

Given the lack of political influence of the poor in general, and of women who rely on welfare programs and services in particular, it is unlikely that many provinces will move to create effective and enforceable conditions to replace those repealed with CAP.⁴⁷ In view of the deficit-cutting agendas of most provincial governments, a deterioration in programs and services would be a likely product of the unconditionality of the CHST even if the amounts transferred by the federal government were not also being reduced. Combined with reductions in federal funding,⁴⁸ the loss of national conditions makes service cuts, rate cuts, introduction of workfare-type programs, and increased interprovincial disparities inevitable. From the perspective of women, it is therefore imperative that the [End of Page 381] CHST be amended to include the conditions and principles necessary to ensure that welfare policies and programs promote rather than undermine women's social and economic equality.

A crucial source of guidance in developing conditions and principles which should apply to welfare programs and services funded under the CHST is the Canadian Constitution, most notably the Charter and section 36 of the Constitution Act, 1982. In view of the fact that the Constitution is the supreme law of Canada,⁴⁹ federal or provincial welfare policies and programs must necessarily be consistent with equality rights and other constitutionally entrenched principles. Another important source of direction in developing welfare program principles and conditions can be found in Canada's international undertakings in the field of human rights. Canada has ratified several international covenants which commit Canadian governments to protecting and promoting the social and economic wellbeing of Canadians in general, and the equality rights of women in particular. These domestic and international sources of direction for federal welfare policy and spending will be examined in turn.

The right to equality is guaranteed by section 15(1) of the Charter, in the following terms:

15.(1) Every individual is equal before and under the law and has the right to the equal protection and benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The sex equality guarantees set out under section 15 are reinforced by section 28 of the Charter, which states that: "Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.” Section 28 was added to the Charter as a result of intense lobbying of members of Parliament and the provincial legislatures by individual women and women's groups from across Canada. In pushing for the adoption of section 28 [End of Page 382] over and above the guarantees set out under section 15 of the Charter, Canadian women wanted to ensure that women's equality was recognized by federal and provincial governments and enforced by the courts as a preeminent constitutional value.⁵⁰ Starting with its decision in Law Society of British Columbia v. Andrews⁵¹ and in R. v. Turpin,⁵² the Supreme Court of Canada has interpreted section 15 of the Charter as a guarantee of substantive rather than merely formal equality. Where the traditional ideal of formal equality requires only that likes be treated alike, a substantive conception of equality focuses on the interplay between the law and the actual circumstances of the individual or group whose rights are at issue.⁵³ As Justice McLachlin explains in her recent decision for a plurality of the Court in Miron v. Trudel, whether or not a legislative distinction is discriminatory within the meaning of section 15 "can be ascertained only by examining the effect or impact of the distinction in the social and economic context of the legislation and the lives of individuals it touches.”⁵⁴ Or, as Justice Iacobucci puts it in his decision in Thibaudeau v. Canada:

[T]he purpose of section 15 is to protect human dignity by ensuring that all individuals are recognized at law as being equally deserving of concern, respect and consideration. Consequently, it is the effect that an impugned distinction has upon a claimant which is the prime concern [End of Page 383] under s. 15.⁵⁵

Section 15, and with it section 28, highlight a constitutional concern for the equality of women in general. However, section 15 also addresses the equality of women who are members of other specifically enumerated groups, or groups analogous to them. Welfare laws, policies, programs, and services are therefore reviewable under section 15 not only for their disparate impact on women in general, but also for their discriminatory effects on women who are members of other disadvantaged minorities, including women who are poor, aboriginal women, women with disabilities, and women who are elderly.⁵⁶ As Justice Iacobucci argues with respect to the provisions of the Income Tax Acts⁵⁷ at issue in Symes v. Canada:

[I]f I were convinced that s. 63 has an adverse effect upon some women ...I would not be concerned if the effect was not felt by all women. That an adverse effect felt by a subgroup of women can still constitute sexbased discrimination appears clear to me from a consideration of past decisions...⁵⁸

Sections 15 and 28 provide a clear measuring stick for federal and provincial welfare laws and policies, and stand as a strong source of direction in terms of program conditions and principles. At a minimum, conditions should be in place which ensure that federal, provincial, territorial and municipal welfare programs do not discriminate against women, either in their form or in their effects. However, consistent with the affirmative reading which the Supreme Court has given section 15, principles and conditions should go further in affirmatively recognizing and promoting equality as an underlying objective of federal welfare spending. As Chief Justice Lamer argues in Schachter v. Canada, in discussing an earlier lower court decision relating to the constitutionality of Nova Scotia's family benefits legislation:

While s. 15 may not absolutely require that benefits be available to single mothers, surely it at least encourages such action to relieve the [End of Page 384] disadvantaged position of persons in those circumstances.⁵⁹

Assessed in light of the substantive equality rights principles endorsed by the Supreme Court of Canada, eligibility determinations based on the "spouse-in-the-house" rule, for example, clearly violate section 15 of the Charter. By automatically disentitling women from receiving social assistance as soon as they are cohabiting with a man, the spouse-in-the house rule assumes and reinforces women's economic dependence on men. This policy choice reflects and perpetuates historically discriminatory presumptions about the economic position of women within the family and vis-à-vis the state.

Of even greater concern from an equality rights perspective, the spouse-in-thehouse rule has a particularly adverse impact on sole support mothers who depend on social assistance. This group, which has been expressly recognized by the courts as warranting protection under section 15 of the Charter,⁶⁰ are precluded from establishing new family and sexual relationships, at the risk of having their right to assistance terminated, and even of having criminal proceedings taken against them.⁶¹ As the Nova Scotia Supreme Court concluded in staying a fraud charge against a 39-year old single mother accused of receiving family allowance benefits in violation of Nova Scotia's spouse-in-the-house rule:

[T]he man-in-the-house rule, as legislated and in practice, has a discriminatory effect on single mothers on family benefits. In its concept and in the effect of its application, it challenges the affirmation that these women receive the "concern, respect and consideration" that they are entitled to expect in Canadian society. No other group of recipients entitled to benefits ... are faced with the same restriction... Because of the man-in-the-house rule, single mothers thus are not receiving equal benefits of the law as compared to the other groups entitled to benefits [End of Page 385] under the Act.⁶²

Mandating participation in work or training-related activities as a condition of receipt of welfare assistance - a practice prohibited under CAP but sanctioned under the CHST⁶³ - also violates equality rights principles. Equivalent coercive conditions are not imposed on beneficiaries of other government programs, such as health care, which are targeted to middle and upper-middle income Canadians. Evidence shows that more welfare recipients are willing to participate in work and training programs than there are places available for them, and that the effectiveness of such programs in gaining welfare recipients permanent employment does not increase when they are made compulsory.⁶⁴ Instead, mandatory workfare simply reinforces the stereotype that welfare recipients are lazy and so must be forced to work.

In terms of its particular impact on women, workfare violates sex equality guarantees because it perpetuates harmful and discriminatory attitudes about women on welfare and the reasons why they are in need of assistance and why they don't seek paid employment. Workfare is also sex-discriminatory because it fails to take into account women's primary responsibility for the care of children, the shortage of adequate and affordable child care, and the serious barriers that women face in obtaining the education, skills and training needed to gain secure and well-paid employment.⁶⁵ These and similar policies which discriminate [End of Page 386] against women as a group, or against women who are disadvantaged on other grounds in addition to gender, should obviously disqualify programs for federal funding.

In short, given the nature and scope of women's reliance on federally-funded welfare programs, and the adverse impact of policies and reforms which do not take gender into account, a failure to require that federal welfare funds be spend in a way that respects equality rights principles is fundamentally inconsistent with the federal government's obligations under sections 15 and 28 of the Charter. In fact, by failing to include respect for women's equality as an express condition of receipt of federal welfare funds, the CHST in its present form is clearly deficient in constitutional terms.⁶¹

Section 7 of the Charter is also relevant to the issue of welfare program principles and conditions. Section 7 provides that:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Since World War II, Canadians have come increasingly to define personal security in social terms. Personal security has become the knowledge in every individual that access to a social safety-net is guaranteed by the community to each of its members in the event of illness or disability, unemployment, family responsibility, or other source of need. Governments, acting through the welfare system, have been charged with the task of protecting individuals against the profound insecurity caused by material deprivation and need.⁶⁷ As discussed earlier, this is a vision of society that the objectives and conditions contained in CAP reflect.

The view that the right to "security of the person" under section 7 of the Charter means more than mere physical security from arbitrary state action, and extends to broader aspects of individual physical and social welfare has been [End of Page 387] urged by numerous commentators since the Charter's adoption.⁶⁸ The Law Reform Commission of Canada has argued, for example, that, "the right to security of the person means not only protection of one's physical integrity, but the provision of necessaries for its support."⁶⁹ While the Supreme Court of Canada has not yet been called upon to address this issue directly, in its decision in Irwin Toy v. Quebec (A.G.) it refused to read section 7 as excluding all interests of an economic nature. Rather the Court suggested that "economic rights fundamental to human life or survival" may be included under section 7. The Court argued in this regard:

Lower courts have found that the rubric of "economic rights" embraces a broad spectrum of interests, ranging from such rights, included in various international covenants, as rights to social security, equal pay for equal work, adequate food, clothing and shelter, to traditional propertycontract rights. To exclude all of these at this early moment in the history of Charter interpretation seems to us to be precipitous. We do not, at this moment choose to pronounce upon whether those economic rights fundamental to human life or survival are to be treated as though they are of the same ilk as corporate-commercial economic rights.⁷⁰

There is no question that, for women, access to welfare programs and services in the event of need is essential not only to their personal security, but in many cases to their physical survival also. Without the means to meet their basic needs: to adequately feed, clothe, and shelter themselves and their families, physical or mental health cannot realistically be maintained, much less a level of existence which is compatible with human life at a socially acceptable standard of dignity, human decency, and self-respect. As Teresa Scassa contends:

Destitution, which is the condition sought to be remedied or avoided by [End of Page 388] social assistance payments, is clearly more than a red line on an accountant's page. It is a condition which fundamentally affects the physical, psychological and emotional security of the person.⁷¹

In view of the direct relationship between the right to a basic level of welfare assistance when in need, and any meaningful right to life or to security of the person under section 7 of the Charter, the principles contained under section 7 are an important source of direction for federal and provincial welfare policy. Examined in light of section 7's guarantee of security of the person, federal welfare spending should ensure that assistance is available, as. a matter of basic entitlement, to all those who are in need.

As a matter of fundamental personal security, access to social assistance should not depend upon judgments about the legitimacy of the causes of a person's need for assistance. Nor should receipt of social assistance be conditional on anything but the existence of need itself. As discussed in the earlier sections of the paper, the growing trend towards conditionality in assistance reflects and reinforces longstanding prejudices and stereotypes about poverty and about women and men who are poor. By their existence alone, these attitudes undermine the security and dignity of welfare recipients as individuals, and as a group. Government reliance on such attitudes in making determinations about eligibility, in justifying violations of individual privacy, or in imposing workfare or other coercive conditions for receipt of assistance, contravenes the rights and principles guaranteed under section 7.

The requirement, under section 7, that any deprivation of the right to security of the person must conform to the principles of fundamental justice is also significant in terms of welfare program principles and conditions. The Supreme Court of Canada has held that, at a minimum, the principles of fundamental justice entail the procedural safeguards provided under common law principles of natural justice and fairness.⁷² Fundamental justice therefore requires that a person whose life, liberty or personal security are at risk be given proper notice that a decision is about to be taken, and an opportunity to prepare and to present a full response to the person responsible for making it. In his decision in Cardinal v. Kent Institution, Justice LeDain explains the importance of this right to be heard in the following terms:

[T]he denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which [End of Page 389] finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have.⁷³

Jennifer Nedelsky draws the connection between the requirement that individuals participate in decisions which affect their lives and notions of fundamental justice in terms which are particularly relevant to the experience of women who rely on social assistance:

The opportunity to be heard by those deciding one's fate, to participate in the decision at least to the point of telling one's side of the story, presumably means not only that the administrators will have a better basis for determining what the law provides in a given case, but that the recipients will experience their relations to the agency in a different way. The right to a hearing declares their views to be significant, their contribution to be relevant. In principle, a hearing designates recipients as part of the process of collective decision making, rather than as passive, external objects of judgment. Inclusion in the process offers the potential for providing subjects of bureaucratic power with some effective control as well as a sense of dignity, competence and power.⁷⁴

Applied to the welfare context, section 7 principles of fundamental justice would require that a person be granted a meaningful opportunity to participate in a decision which was likely to affect her: to present her point of view, and to argue in her own favour, before an adverse welfare-related decision could be taken or implemented. A right to be heard would have to be provided where a benefit or access to a program was about to be terminated, and on appeal from such a decision. A right to be heard would also have to be provided to those applying for assistance in the first place, since there is no logical reason to distinguish between the expectation interest of an initial applicant and the reliance interests of a beneficiary threatened with termination of benefits which he or she already enjoys. In each case a denial of benefits without affording the individual affected an adequate opportunity to respond would amount to a violation of section 7's requirement of fundamental justice.⁷⁵

Seen as a source of principles or conditions for federally-funded welfare programs, section 7 of the Charter would call for a system which both respects the primacy of basic needs in making welfare-related determinations, and which also respects principles of fairness or due process at a procedural level. In the [End of Page 390] former regard, section 7 would require that assistance be available to all those in need without condition or exception, in an amount which enables recipients to meet their basic requirements and those of their families. In the latter regard, section 7 would require that a meaningful right to participate, including an effective right of appeal, be provided to those who are refused access to needed programs or services or who are at risk of having their eligibility for such assistance terminated. A provincial welfare system which did not meet basic needs, or which did not provide these basic procedural safeguards, could not be characterized as fundamentally just within the meaning of section 7. Such a welfare system should not, therefore, be eligible for federal funding.

Section 36 of the Constitution Act, 1982 provides a further important source of constitutional direction in terms of welfare program principles and conditions. Section 36(1) entrenches an express commitment by the federal government and the provinces to: "promoting equal opportunities for the well-being of Canadians"; "furthering economic development to reduce disparity of opportunities"; and "providing essential public services of reasonable quality to all Canadians.⁷⁶ Section 36 constitutes a constitutionally binding undertaking on the part of the federal and provincial governments to promote equal opportunities for the welfare of women and men living in all parts of the country, and to provide basic public services of reasonable and comparable quality to all Canadians. Realizing section 36's objective of reducing interpersonal and interregional disparities in opportunities and wellbeing is clearly impossible in the absence of concerted federal efforts and financial support for welfare-related programs and services.⁷⁷ As a 1969 federal working paper on the Constitution recognized:

[I]t is highly unlikely that an equitable distribution of income across Canada will be achieved - that disparities in the incomes of individuals and families will be alleviated - unless Parliament has the power to support the incomes of the poor. This we take to be one of the objectives of Confederation and hence one of the guiding principles in reviewing the Constitution.⁷⁸

Like sections 7, 15, and 28 of the Charter, section 36 points to federal welfare spending which ensures that social assistance and other essential social [End of Page 391] programs and services are available to all women, not merely to those fortunate enough to live in a province where addressing the causes and consequences of poverty remains a concern for provincial politicians. Section 36 also commits the federal government to ensuring that such programs and services exist at reasonable and comparable levels in all parts of the country. Section 36 suggests that federal welfare spending should be directed towards programs and services which actively promote equality, and which are designed to alleviate social and economic disparities.

In short, section 36 entrenches a federal commitment to the maintenance of a strong national network of essential social programs and services. Like sections 7, 15 and 28 of the Charter, section 36 is clearly at odds with the type of federal transfer system which the CHST puts in place - one which will lead to the development of interprovincial patchwork of welfare programs and services. Section 36 clearly envisages a national safety net of programs and services designed to promote individual equality and welfare, not one characterized by large gaps, discrimination and interprovincial disparities.

Canada's international human rights undertakings are another important source of direction in developing conditions and principles that should apply to federally-funded welfare programs and services under the CHST By ratifying international agreements such as the International Covenant on Economic, Social and Cultural Rights⁷⁹ and the Convention on the Elimination of All Forms of Discrimination Against Women,⁸⁰ the Canadian government has assumed formal and legally binding obligations with respect to the rights and responsibilities which these agreements contain." Apart from their authority in international law, the international treaties which Canada has ratified are significant as a crucial source of reference in interpreting and applying the Canadian Charter. As Chief Justice Dickson argues in Slaight Communications Inc. v. Davidson:

The content of Canada's international human rights obligations is, in my [End of Page 392] view, and important indicia of the meaning of "full benefit of the Charter's protection." I believe 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 has ratified.⁸²

This approach is also consistent with the view expressed by then federal Justice Minister Jean Chretien during the Special Joint Committee deliberations on the Charter that, "the rights that we have agreed upon in international agreements should be reflected in the laws or the Charter of Rights that we will have in Canada.”¹³

In 1948, with other members of the United Nations General Assembly, Canada endorsed the Universal Declaration of Human Rights.⁸⁴ Article 1 of the Universal Declaration recognizes that: "All human beings are born free and equal in dignity and rights." Article 2 guarantees enjoyment of the rights contained in the Declaration without distinction based on race, colour, sex and other grounds. Article 7 provides that: "All are equal before the law and are entitled without any discrimination to equal protection of the law." Of particular significance for federal welfare policy, Article 25(1) provides that:

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

Other rights recognized under the Universal Declaration include the right to social security and to the social and economic rights which are indispensable to a person's dignity and to the free development of his or her personality under Article 22; the right to work, to free choice of employment, to protection against unemployment, and to remuneration ensuring "an existence worthy of human [End of Page 393] dignity, and supplemented, if necessary, by other means of social protection", under Article 23; and the right to education, under Article 26.

The principles set out in the Universal Declaration were given more concrete expression in the International Covenant on Economic, Social and Cultural Rights which, along with the International Covenant on Civil and Political Rights,⁸⁵ was adopted by the U.N. General Assembly in 1966, and was ratified by Canada after lengthy discussions with the provinces, in 1976. Unlike the Universal Declaration, which was intended to stand as a general statement of principle,⁸⁶ the International Covenant on Economic, Social and Cultural Rights creates binding obligations for those states which, like Canada, are parties to it.⁸⁷ Article 2(l) of the Covenant provides that:

Each State Party to the present Covenant undertakes to take steps ... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

Article 2(2) guarantees the rights set out in the Covenant without discrimination on the basis of sex, race, and social origin among other grounds." Article 6 of the Covenant guarantees "... the right to work, which includes the right of everyone to the opportunity to gain his living by work which she freely chooses or accepts..." Article 9 recognizes "... the right of everyone to social security, including social insurance."⁸⁹ Article 10 of the Covenant recognizes that, "[t]he widest possible protection and assistance should be accorded,to the family ... particularly ... while it is responsible for the care and education of dependent children..." Article 11(2), in terms similar to the Universal Declaration, [End of Page 394] guarantees:

...the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions."⁹⁰

Article 28 of the Covenant provides that its provisions "shall extend to all parts of federal States without any limitations or exceptions." Finally, under Articles 16 and 17 of the Covenant, States Parties are required to submit reports "on the measures which they have adopted and the progress made in achieving the observance of the rights recognized herein" to the United Nations Economic and Social Council. These periodic reports are reviewed by the U.N. Committee on Economic, Social and Cultural Rights, which is responsible for interpreting the provisions of the Covenant.⁹¹

In September 1992, the Canadian government submitted its Second Report on Canada's implementation of the rights contained under Articles 10-15 of the Covenant.⁹² In the discussion of the general measures adopted by Canada to comply with the Covenant, the Second Report refers to sections 7 and 15 of the Canadian Charter as being especially relevant to the issue of Canada's implementation of the rights guaranteed under the Covenant.⁹³ With regard to section 15 of the Charter in particular, the Second Report states that:

Section 15 applies to the full range of governmental action. Thus it serves to ensure that the rights enunciated by articles 10-15 of the International Covenant on Economic, Social and Cultural Rights are [End of Page 395] guaranteed without discrimination in Canada, as required by article 2(2) of the Covenant.⁹⁴

As for the steps taken by Canada to ensure the right to an adequate standard of living under Article 11 of the Covenant, the Second Report refers primarily to the Canada Assistance Plan as a source of standards and federal assistance to the provinces for the payment of social allowances to persons in need.⁹⁵ In the portion of the Second Report dealing with provincial measures to implement the Covenant, extensive reference is also made to the existence of provincial welfare programs funded under CAP⁹⁶

Canada's Second Report, and its compliance with the Covenant, were reviewed by the U.N. Committee on Economic, Social and Cultural Rights in May 1993. The Committee opens its Concluding Observationsy⁹⁷ with respect to Canada's performance under the Covenant by commenting favourably on the general strengthening of human rights protection in Canada through the Charter and other human rights legislation. The Committee goes on, however, to question the lack of any real progress in combating poverty in Canada over the past decade. The Committee states in this regard:

In view of the obligation arising out of article 2 of the Covenant to apply the maximum of available resources to the progressive realization of the rights recognized in the treaty, and considering Canada' enviable situation with regard to such resources, the Committee expressed concern about the persistence of poverty in Canada. There seems to have been no measurable progress in alleviating poverty over the past decade, nor in alleviating the severity of poverty among a number of particularly vulnerable groups.⁹⁸

The Committee takes particular note of the high rate of poverty among single mothers and children in Canada and the inaction of governments in this regard; the lack of procedures to ensure that welfare rates do not fall below the poverty line; evidence of hunger and of reliance on food banks; the problem of homelessness; and the characterization of social and economic rights in recent [End of Page 396] Canadian constitutional discussions and court decisions as mere policy objectives.⁹⁹ Among the measures which the Committee recommends that Canada adopt with a view to bring itself into compliance with the Covenant are concerted government action to eliminate the need for food banks; the incorporation into Canadian human rights legislation of more explicit reference to social, economic and cultural rights; and the adoption by Canadian courts of a broad and purposive approach to the Charter, so as to provide appropriate remedies against social and economic rights violations.¹⁰⁰

The issue of Canada's compliance with the Covenant was revisited by the U.N. Committee in May 1995, when it granted permission to the National AntiPoverty Organization (NAPO), the Charter Committee on Poverty Issues (CCPI), and the National Action Committee on the Status of Women (NAC) to appear before it to present a brief relating to the 1995 Budget Act.¹⁰¹ In their brief and at the hearing, the groups took the position that the repeal of CAP and its replacement with the CHST under the February 1995 Budget Act represents a major violation of Canada's obligations under the Covenant. In particular, the groups' brief points to the fact that:

[P]eople in poverty will no longer be guaranteed by federal law that they will be eligible for assistance - whatever the cause of their need; they will lose the federal guarantee of the right to initiate social assistance appeals. Similarly, their current right (in CAP) to refuse "workfare" (the requirement to perform work as a condition of receiving assistance) will be lost.¹⁰²

The brief argues that the repeal of CAP and its replacement with the CHST violates the Covenant in two regards: first, because the right to social assistance in Canada will effectively be lost, and second, because this legislative change amounts to a "deliberately retrogressive measure" in contravention of Articles 2, 6, 9, and 11 of the Covenant.¹⁰³

Following the hearing, the U.N. Committee wrote to Canada's Ambassador to [End of Page 397] the United Nations in the following terms:

The Committee ... wishes ... to underline the importance that it attaches to the pursuit of policies and programs which comply fully with Canada's obligations as a party to the Covenant. In this regard, if the legislation in question is enacted, the Committee would welcome observations by the Government on the issue of its conformity with the Covenant in the context of Canada's next periodic report, due later this year.

As the Committee's remarks make clear, the rights set out in the Covenant are an imperative source of direction for the federal government in establishing principles and conditions for federally-funded welfare programs. To the extent that such programs fail to respect the commitments which Canada has undertaken under the Covenant, including its obligation to take steps to the maximum of its available resources to ensure that Canadian women are guaranteed a right to social security and to an adequate standard of living, Canada will be in knowing violation of its international legal obligations.¹⁰⁴

Canada's international undertakings in the area of women's rights have a direct bearing on federal welfare policy in general and specifically on what program conditions and principles must be included under the CHST. In addition to the sex equality guarantees it has endorsed under the Universal Declaration and the International Covenant on Economic, Social and Cultural Rights, Canada has also ratified the Convention on the Elimination of All Forms of Discrimination Against Women in 1981.¹⁰⁵ Article 2 of the Convention commits States Parties to prohibiting and condemning discrimination against women "in all its forms", and to taking "all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination [End of Page 398] against women." Article 3 of the Convention states, in general terms that:

States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.

Among the specific guarantees set out in the Convention are the right to equal participation in public and political life and in the formulation of government policy under Article 7; the right to equality in education, career guidance and vocational training under Article 10; and the right to equality in employment, to free choice of employment, and to advanced vocational training and retraining, under Article 11(1). Article 11(2)(c) of the Convention provides that:

In order to prevent discrimination against women on the grounds of ... maternity and to ensure their effective right to work, States Parties shall take appropriate measures ... to encourage the provision of necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life ...

The recognition of the need for adequate supports for women as parents, and in their efforts to combine family and work responsibilities, is reflected in the provisions of the Convention on the Rights of the Child,¹⁰⁶ signed by Canada in 1990. Article 18 of the Convention requires States Parties to "render appropriate assistance to parents ... in the performance of their child-rearing responsibilities." Article 27(1) sets out "the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development." Article 27(3) states that:

States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.

The express provisions relating to women's social and economic equality under the Convention on the Elimination of all Forms of Discrimination Against Women are also reinforced by the Beijing Declaration and the Beijing Platform for Action, adopted by Canada along with other nations attending the Fourth [End of Page 399] World Conference on Women in Beijing, China, on September 15, 1995.¹⁰⁷ Canada was an active participant in the discussions and preparations leading up to the Conference, and during the actual meetings and discussions which took place in Beijing. Among the commitments made or reaffirmed by the Canadian government under the Beijing Declaration¹⁰⁸ are to: "[t]ake all necessary measures to eliminate all forms of discrimination against women and the girl child and remove all obstacles to gender equality and the advancement and empowerment of women" (Article 24); to "design, implement and monitor, with the full participation of women, effective, efficient and mutually reinforcing gender-sensitive policies and programmes" (Article 19); and to:

Promote women's economic independence, including employment, and eradicate the persistent and increasing burden of poverty on women by addressing the structural causes of poverty ... ensuring equal access for all women ... to productive resources, opportunities and public services. (Article 26)

The Beijing Platform for Action¹⁰⁹ identifies and examines specific obstacles to women's social, economic, political and legal equality at both the domestic and international levels, and proposes a series of strategic objectives and actions which Canada along with other participants at the Beijing Conference have undertaken to adopt and implement. On the issue of women and poverty, for example, the Platform for Action points to the fact that the number of women living in poverty has increased over the past decade disproportionately to the number of men; that, because of the gender division of labour and household responsibilities, women bear a disproportionate burden of dealing with poverty within the household; and that women's poverty is directly related to their lack of economic opportunities and autonomy.¹¹⁰

In terms of the impact on women of programs and services designed to alleviate poverty, the Platform for Action states that:

In too many countries, social welfare systems do not take sufficient account of the specific conditions of women living in poverty, and there is a tendency to scale back the services provided by such systems. The risk of falling into poverty is greater for women than for men, particularly in old age ... due to the unbalanced distribution of [End of Page 400] renumerated and unrenumerated work ... and ... obstacles to labour- market re-entry.¹¹¹

Among the measures which Canada commits, under the Platform for Action, to taking with a view to addressing the problem of poverty among women are to: "[a]nalyse, from a gender perspective, policies and programmes - including those related to macroeconomic stability, structural adjustment, external debt problems, taxation, investments, employment markets and all relevant sectors of the economy - .with respect to their impact on poverty, on inequality, and particularly on women";¹¹² to "[p]rovide adequate safety nets and strengthen State-based and community based support system, as an integral part of social policy, in order to enable women living in poverty to withstand adverse economic environments";¹¹³ and to "[i]ntroduce measures to integrate or reintegrate women living in poverty and socially marginalized women into productive employment and the economic mainstream."¹¹⁴ In addition to these specific anti-poverty measures, the Platform for Action also outlines remedial steps which Canada and other signatories of the Beijing Declaration commit themselves to pursuing in the field of education and training, women's health, the economy, human rights of women, power and decision-making, and institutional mechanisms for the advancement of women.

Together, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Beijing Declaration and Platform for Action provide clear direction to the federal government in terms of the form, content and objectives of welfare programs and policies. As a party to the Convention and the Beijing Declaration the Canadian government must not only act to eliminate all forms of discrimination against women in law or social practice. It must also act affirmatively to promote women's economic, social and political equality, including by ensuring that the social programs and services which are necessary for women to achieve such equality are firmly in place and accessible to women in all parts of the country.

As discussed in the first part of the paper, the only condition now imposed by the CHST in relation to provincial welfare programs is the one designed to [End of Page 401] guarantee the interprovincial mobility of welfare recipients.¹¹⁵ Over and above the requirement, under section 19(1) of the Federal-Provincial Fiscal Arrangements Act, that no period of minimum residency be imposed by a province as a condition of receipt of social assistance, the previous discussion points to the inclusion of five additional conditions and principles under section 19 of the Act.

First, provinces should be required, as they were under CAP, to provide assistance to any person in need, irrespective of the cause of need, in an amount which allows that person to meet her basic requirements in terms of food, clothing, housing, fuel, utilities, household supplies, personal requirements, child care, and support services. Provinces should not be permitted to refuse assistance based on judgments about the legitimacy of the reasons why assistance is needed. And benefit rates should be set at levels which do not leave recipients far below the poverty line, as is presently the case in most provinces.¹¹⁶ Instead, assistance should ensure the health, personal security and dignity of recipients and their families, as well as their ability to participate as full and equal members in their communities and in Canadian society.¹¹⁷

Second, section 19 of the Federal-Provincial Fiscal Arrangements Act should be amended to include anti-discrimination principles as a condition of receipt of CHST funds. In particular, provinces should be prohibited in the design or delivery of welfare programs and services from discriminating on the basis of sex, sexual orientation, race, national or ethnic origin, colour, religion, age, mental or physical disability, or other analogous grounds. The preceding section of the paper discussed provincial welfare policies and practices which discriminate on the basis of sex, including spouse-in-the-house rules and mandatory participation in work or training-related programs. Other examples of discrimination can also be found within existing provincial welfare programs, including discrimination on the basis of age, disability, and immigrant status of applicants.¹¹⁸ In view of the [End of Page 402] provinces' failure to respect existing Charter and human rights guarantees in the design and delivery of welfare programs, respect for non-discrimination principles should be made an explicit condition of federal funding towards provincial welfare programs and services.

Third; provinces should be required under the CHST, as they were under CAP, to provide persons directly affected with accessible and effective rights of appeal on matters relating to their initial or continuing eligibility for welfare assistance or welfare services. Applicants who are refused welfare assistance or services should be promptly informed in writing of the reasons why, and should have the right to appeal such decisions through a simple, accessible, expeditious and independent appeal process. Persons already receiving benefits or services should be provided with ample notice of any decision to reduce or terminate their assistance. Recipients at risk of having their benefits terminated should be provided with full reasons, and with a meaningful opportunity to respond before any decision is implemented. A right to appeal decisions by welfare officials to terminate benefits or services should be available, first to an independent provincial review board or tribunal, and subsequently to the superior courts.

Fourth, provinces should be required to recognize, as a fundamental program principle, the distinct needs and particular disadvantages which low-income women face, and the importance of designing and delivering welfare programs and services in a manner which ensures their security and promotes their social and economic equality. As the earlier sections of the paper argue, failure to adopt a gender-sensitive approach to the design and implementation of social welfare policies and programs can result in as much harm as benefit to the women who depend on them.

And finally, provinces receiving CHST funding should be required to recognize, as a fundamental welfare program principle, the need to increase opportunities for women to participate in welfare design and reform, and the need to make programs and services more accountable to the women who use them.¹¹⁹ The most effective way of ensuring that welfare programs and services [End of Page 403] meet women's real life needs is to actively solicit women's participation and input when programs are being created or reformed. Ongoing accountability to the women who use welfare programs and services is also necessary to ensure that programs and decision-makers continue to be responsive to women's needs and concerns, and that programs remain effective from women's perspective.

As discussed in the preceding section of the paper, a revision of the CHST to include the above described conditions is dictated by sections 7, 15 and 28 of the Charter, by section 36 of the Constitution Act, 1982 and by Canada's international human rights undertakings, particularly Articles 2, 9 and 11 of the International Covenant on Economic, Social and Cultural Rights, Article 27 of the Convention on the Rights of the Child, Articles. 2, 3 and 7 of the Convention on the Elimination of All Forms of Discrimination Against Women, and the provisions of the Beijing Declaration and Platform for Action.

In addition to the lack of adequate conditions and principles applicable to provincial welfare programs funded under the CHST, current enforcement mechanisms under the CHST are also deficient in two major respects. First, the federal and provincial governments' obligations to inform the public about welfare programs and services funded under the CHST are much less onerous than under CAP. Section 23.1 of the revised Federal-Provincial Fiscal Arrangements Act requires only that the Ministers of Finance, Health, and Human Resources Development may, together or individually, prepare a report on the administration and operation of the CHST for Parliament. This non-mandatory reporting [End of Page 404] requirement stands in sharp contrast to the reporting obligations under CAP.

Section 15 of the Canada Assistance Plan Regulations¹²⁰ requires the provinces, as a condition of receipt of federal funds, to maintain and make available for audit records and accounts relating to the determination of contributions payable to the province, and records relating to individual determinations of eligibility for assistance as well as to the amounts of assistance actually paid out. In addition, section 18 of CAP provides that:

The Minister shall, as soon as possible after the end of each year, prepare a report respecting the operation for that year of the agreements made under this Act and the payments made to the provinces under each of the agreements, and shall cause the report to be laid before Parliament forthwith on the completion thereof...

More effective still, is the requirement under section 23 of the Canada Health Act¹²¹ that the Minister of Health's annual report to Parliament relating to the operation of the Canada Health Act include relevant information on the extent to which the provinces have met the five national conditions under the Act.¹²² In the absence of similar reporting requirements under the CHST, provincial governments are not answerable in any way to Parliament for the federal monies spent on welfare programs and services, and neither level of government is accountable to the public. As the Social Planning Council of Metropolitan Toronto argues, this is especially disturbing given that almost half of the cash portion of the CHST comes from including CAP transfers in the new block fund.¹²³

Second, the wide discretion granted to the federal Cabinet under section 21 of the Federal-Provincial Fiscal Arrangements Act weakens the enforceability of CHST conditions, relative to those under CAP. As discussed earlier, CAP conditions are enforceable in two ways. First, since provincial compliance with the various conditions which CAP and the CAP Regulations contain is a mandatory term of federal-provincial shared-cost agreements, pursuant to section 7 of CAP, the federal government can simply refuse to make a payment to a province which is in breach of a condition. Second, as the Finlay case established, where the federal government chooses to continue , making shared-cost payments to a province even though the province is violating a CAP condition, an individual welfare beneficiary has standing to seek a judicial declaration that the payments [End of Page 405] are illegal, or an injunction prohibiting the federal government from continuing to make such payments.¹²⁴

Under the CHST as currently formulated, a province which does not respect the provincial residency condition under section 19 is at risk of having the cash portion of its CHST reduced in accordance with the procedures set out under sections 20 and 21 of the Act. These provisions require that the federal Minister of Human Resources Development first engage in a process of consultation and discussions with the offending province. Once the Minister is convinced that a province does not intend to remedy its non-compliance within a "reasonable" period, he or she must refer the matter to federal Cabinet. Under section 21 of the Act, Cabinet may in turn withhold or reduce the cash portion of the province's CHST by an amount it "considers to be appropriate, having regard to the gravity of the non-compliance."

As it now stands, in a case where Cabinet failed to make any deduction from the cash portion of the CHST of a province which was in violation of a CHST condition, the federal government could simply argue that, in accordance with the terms of section 21, Cabinet had reviewed the matter and had deemed that no deduction was "appropriate". By granting Cabinet such a wide discretion in deciding whether or not to penalize a province for its failure to respect a CHST condition, the Federal-Provincial Fiscal Arrangements Act makes it much less likely that a individual welfare recipient could succeed in an action, similar to the one brought by Jim Finlay, to have a federal payment declared illegal. At best under the CHST, Cabinet might be required by a court to meet its statutory obligation to consider whether any action against a non-compliant province was appropriate.

A number of changes to the CHST and its existing enforcement mechanisms are required, to effectively ensure provincial compliance with the conditions and principles recommended in the preceding section of the paper. First, as many commentators have argued, the federal government must maintain the cash portion of the CHST at a level which ensures the government's continuing ability to enforce national conditions and it must target a specific portion of the CHST directly to welfare programs and services. As the Caledon Institute for Social [End of Page 406] Policy argues:

The fiction that Ottawa "transfers" part of the CHST in the form of tax points - i.e., [tax room] transferred many years ago to the provinces - should be dropped. The CHST should pay a cash transfer that is fully indexed to the change in GNP Moreover, a specific portion of the CHST transfer should be allocated for welfare and specially indexed using a formula that includes indicators of demand, such as the percentage of each province's non-elderly population that is not employed.¹²⁵

Second, the reporting requirements under the CHST need to be expanded and reinforced. Effective enforcement of conditions and principles under the CHST demands that the federal Minister of Human Resources Development report at least annually to Parliament on the adminstration and operation of the CHST. The Minister's report should, as is now required under the Canada Health Act, also include information about provincial compliance with welfare-related conditions and principles imposed under the CHST In addition, the provinces should continue to be required to meet record keeping and reporting conditions in relation to federal moneys received and spent on welfare programs and services, and in relation to welfare assistance and service caseloads.¹²⁶

The conditions recommended for inclusion under the CHST relating to residency requirements, access to benefits, non-discrimination, and rights to appeal should be enforced by means of a deduction from a province's CHST, as described below. However, provincial compliance with the principles relating to gender equality and accountability would have to be measured primarily in terms of the actual programs and services which the provinces put in place. Comprehensive and effective reporting requirements are therefore necessary in order to enable the federal government, women's groups, and social policy analysts to determine whether provincial welfare programs and services are actually meeting the concerns which the new principles are designed to reflect. In short, comprehensive reporting requirements, imposed both on the federal and provincial governments, are imperative if inclusion of program principles under the CHST is to have any effect in terms of ensuring a welfare system which is more responsive to women's actual needs. Third, the wide discretion granted to Cabinet under Section 21 of the Federal-Provincial Fiscal Arrangements Act, relative to the enforcement of the conditions under section 19(1) of the Act, needs to be significantly circumscribed. Once the Minister of Human Resources Development determines that a province is [End of Page 407] knowingly and intentionally in breach of a condition under the CHST Cabinet should be required to deduct from that province's annual transfer an amount equivalent to what the province is estimated to have saved by failing to respect the applicable CHST condition. This approach to establishing the amount of a provincial penalty for breach of a national program condition is comparable to the one set out under section 20 of the Canada Health Act, in relation to impermissible user charges and extra-billing.¹²⁷

In addition to creating a more effective deterrent to provincial breaches of CHST conditions, this amendment overcomes the problem created by the wide grant of discretion to Cabinet under section 21 of the Federal-Provincial Fiscal Arrangements Act as it is now formulated. An additional measure is required, however, to address a case in which the federal government might choose not to act in the face of provincial non-compliance with a CHST condition. To deal with this situation an express provision should be included in the CHST which provides for an individual right of action on the part of a welfare beneficiary directly affected by a province's failure to respect the conditions set out under section 19 of the Act. Such a provision would provide statutory expression to the right of action recognized by the Supreme Court of Canada in the Finlay case, and would ensure that enforcement of CHST conditions was not dependant entirely on the political will of the federal government in power.¹²⁸

[End of Page 408]

As the earlier sections of the paper argued, the CHST as it is presently formulated is seriously deficient from the point of view of Canadian women. While CAP explicitly recognizes the role of the federal government in preventing and addressing the causes of poverty affecting so many women, this objective has been entirely abandoned under the CHST. Instead, the unconditionality of the CHST is likely to reinforce regressive welfare trends which are emerging in a number of provinces, and to contribute directly to an increase in the social and economic inequality and disadvantage of low-income women. In addition to heightening the level of insecurity among individual women who depend on welfare, the unconditionality of the CHST particularly in the area of entitlement, will also reinforce the view that poverty and the maintenance of a national social safety-net are no longer matters of pressing national concern. As a result, women will experience growing disparities in the level and quality of welfare-related programs and services according to the particular economic priorities and circumstances of the individual provinces in which they live. As the earlier discussion makes clear, these outcomes are fundamentally at odds with the values and principles enshrined under section 7 of the Charter, as well as under section 36 of the Constitution Act, 1982.

From an equality rights perspective, the CHST is even more objectionable. As discussed in the first part of the paper, the loss of national standards under the CHST will make it far more difficult for welfare to compete on an equal footing with medicare for increasingly scarce government dollars. Where efforts to reduce health care spending are widely decried as a threat to Canada's basic social fabric, cutbacks in welfare programs and services are portrayed as necessary to reduce economic inefficiencies and to combat the deficit. In this political climate a convincing claim can be made that, by conferring the benefit of national standards on all Canadians for health care while denying welfare recipients the same protection, the CHST in effect discriminates against the poor in a manner contrary to section 15.¹²⁹ When the impact of this choice is scrutinized in terms of its specific impact on low-income women, the argument that the difference in approaches to health and welfare under the CHST violates equality rights [End of Page 409] principles becomes more persuasive still.

In sum, the abandonment of the anti-poverty objectives of CAP, the repeal of the national conditions which CAP contains, and the "flexibility" favoured by the CHST, will together contribute to the transformation of the Canadian welfare state into one which is both more unequal at an interpersonal and interprovincial level, and one which is less concerned with addressing poverty as a major source of social, economic and political inequality for women in Canadian society. From the perspective of women generally, and of women on welfare in particular, the change in the direction of federal social welfare policy which the CHST represents is without question a regressive and even constitutionally suspect one.

The foregoing discussion and recommendations suggest how the CHST might be amended to incorporate principles and conditions which fulfil the federal government's commitment, under the Federal Plan for Gender Equality, to address the specific impact of the CHST and the current federal welfare reform process on Canadian women.¹³⁰ It was proposed that the CHST be amended to require that provinces provide assistance to all persons in need; that discrimination in programs and services be prohibited; that effective appeal procedures be available; and that promotion of gender equality, participation, and accountability be recognized as fundamental principles underlying provincial welfare programs and policy. It was also recommended that existing weaknesses in enforcement mechanisms under the CHST be addressed, including by imposing more stringent reporting requirements relating to the administration and operation of the CHST and by circumscribing the wide discretion granted to Cabinet in the matter of provincial non-compliance with CHST conditions.

As argued above, changes of this nature are necessary to meet Parliament and the federal government's obligations to ensure women's rights to security of the person and to equal protection and equal benefit of the law - obligations imposed by sections 7, 15, and 28 of the Charter and by international human rights law. Clearly the CHST as it now stands does not meet these obligations in the crucial area of federal welfare spending. The federal government's willingness to follow through on its undertaking to review and revise the CHST from a gender-sensitive perspective will be a true measure of its commitment to women's security and equality.

************************************************

^*The author wishes to thank Status of Women Canada for financial support towards the research for this paper, and Ruth Sullivan, Vince Calderhead, and Don McRae for helpful comments on earlier drafts.

¹R.S.C. 1985, c. C-1.

²Budget Implementation Act, 1995, S.C. 1995, c. 17 [hereinafter Budget Act]. S. 31 of the Budget provides that no payment under CAP shall be made after April 1, 1996, ands. 32 sets March 31, 2000 as the date of CAP's repeal.

³R.S.C. 1985, c. F-8, as amended.

⁴Ibid. s. 48.

⁵See e.g., Canadian Council on Social Development, Social Policy Beyond the Budget (Ottawa: Canadian Council on Social Development, April 1995); The Council of Canadians, Danger Ahead: Assessing the Implications of the Canada Health and Social Transfer (Ottawa: The Council of Canadians, March 1995); Ken Battle and Sherri Todman, How Finance Reformed Social Policy (Ottawa: Caledon Institute for Social Policy, April 1995); National Action Committee on the Status of Women, Submission of the National Action Committee on the Status of Women to the House of Commons Standing Committee on Finance Regarding Bill C-76 (Toronto: National Action Committee on the Status of Women, May 1995); Canadian Labour Congress, Canada: Two Visions - Two Futures: Submission to the Standing Committee on Finance Regarding Bill C-76 (Ottawa: Canadian Labour Congress, May 1995); Citizens for Public Justice, Will Ottawa Preserve National Equity? (Toronto: Citizens for Public Justice, May 1995); Sherri Todman and Ken Battle, Can We Have National Standards (Ottawa: Caledon Institute of Social Policy, May 1995); National Council of Welfare, The 1995 Budget and Block Funding (Ottawa: Supply and Services Canada, Spring 1995); Thomas J. Courchene, Redistributing Money and Power: A Guide to the Canada Health and Social Transfer (Vancouver: C.D. Howe Institute, 1995).

⁶See David P. Ross, E. Richard Shillington and Clarence Lochhead, The Canadian Fact Book on Poverty - 1994 (Ottawa: Canadian Council on Social Development, 1994); Donna S. Lero and Karen L. Johnson, 110 Canadian Statistics on Work and Family (Ottawa: Canadian Advisory Council on the Status of Women, 1994); Sandra Goundry, "The Socio-economic Status of Persons With Disabilities - A Fact Sheet", Memorandum # 2, in Sandra Goundry, Yvonne Peters and Rosalind Currie, Income Security Reform From a Disability Equality Rights Perspective: Proposals for an Analytical Framework (Winnipeg: Canadian Disability Rights Council, October 1994); National Council on Welfare, Poverty Profile 1994 (Ottawa: Supply and Services Canada, 1996); National Action Committee on the Status of Women, Review of the Situation of Women in Canada (Ottawa: National Action Committee on the Status of Women, 1993); Economic Council of Canada, The New Face of Poverty: Income Security Needs of Canadians (Ottawa: Supply and Services Canada, 1992); Jillian Oderkirk and Clarence Lochhead, "Lone Parenthood: Gender Differences" (Winter 1992) 27 Canadian Social Trends 16; David P. Ross and E. Richard Shillington, An Economic Profle of Persons With Disabilities in Canada (Ottawa: Department of the Secretary of State Canada, 1991); Indian and Northern Affairs Canada, Basic Departmental Data, 1994 (Ottawa: Supply and Services Canada, 1994); National Council of Welfare, Women and Poverty Revisited (Ottawa: Supply and Services Canada, 1990); Morley Gunderson, Leon Muszynski and Jennifer Keck, Women and Labour Market Poverty (Ottawa: Canadian Advisory Council on the Status of Women, 1990); National Council of Welfare, Sixty-five and Older (Ottawa: Supply and Services Canada, 1984); Sheilah Baxter, No Way to Live - Poor Women Speak Out (Vancouver: New Star Books, 1988).

⁷See e.g., National Council of Welfare, Women and Poverty Revisited, ibid.; Gunderson, Muszynski and Keck, Women and .Labour Market Poverty, ibid. at 192-195.

⁸See e.g., Canadian Advisory Council on the Status of Women, Submission to the Ministerial Task Force on Social Security Reform (Ottawa: Canadian Advisory Council on the Status of Women, March 1994); National Action Committee on the Status of Women, Presentation to the Standing Committee on Social Security Reform (Toronto: National Action Committee on the Status of Women, November 1994); National Action Committee on the Status of Women, Presentation to the Standing Committee on Finance (Toronto: National Action Committee on the Status of Women, November 1994); National Association of Women and the Law, The Federal Social Security Reform: Taking Gender Into Account (Ottawa: National Association of Women and the Law, November 1994); National Association of Women and the Law, The 1995 Federal Prebudget Consultation: Taking Gender Into Account (Ottawa, National Association of Women and the Law, November 1994); Havi Echenberg, Notes on the Federal Government's Proposals for Reform of the Income Security Component of the Canada Assistance Plan (Ottawa: Canadian Advisory Council on the Status of Women, November 1994); Havi Echenberg, Notes on the Federal Government's Proposals for Reform of the Social Services Component of the Canada Assistance Plan (Ottawa: Canadian Advisory Council on the Status of Women, November 1994); and see generally Therese lennissen, "The Federal Social Security Review: A Gender-Sensitive Critique", in Jane Pulkingham and Gordon Ternowetsky, eds., Remaking Canadian Social Policy: Social Security in the Late 1990s (Halifax: Femwood Publishing, 1996) 238.

⁹Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].

¹⁰Status of Women Canada, Setting the Stage for the Next Century: The Federal Plan,for Gender Equality (Ottawa: Status of Women Canada, 1995).

¹¹Ibid. at 23.

¹²Canada Assistance Plan, supra note 1 s. 2. See also Sherri Todman, The Let-Them-Eat-Cake Law (Ottawa: Caledon Institute of Social Policy, May 1995); Sherri Todman, CHST Spells COST for Disabled (Ottawa: Caledon Institute for Social Policy, May 1995); National Council of Welfare, The 1995 Budget, supra note 5; Echenberg, Notes on the Federal Government's Proposals for Reform of the Social Services Component of the Canada Assistance Plan, supra note 8.

¹³Canada Assistance Plan, supra note 1 s. 6(2)(a).

¹⁴Ibid.

¹⁵Ibid. s. 6(2)(c).

^16.Ibid. s. 6(2)(d).

¹⁷Ibid. s. 6(2)(e).

¹⁸Supra note 3.

¹⁹Ibid. ss. 14-16.

²⁰The overall objectives of CAP are set out in its preamble, in the following terms:

[T]he Parliament of Canada, recognizing that the provision of adequate assistance to and in respect of persons in need and the prevention and removal of the causes of poverty and dependence on public assistance are the concern of all Canadians, is desirous of encouraging the further development and extension of assistance and welfare services and programs throughout Canada by sharing more fully with the provinces the cost thereof..."

²¹Federal-Provincial Fiscal Arrangements Act, supra note 3 s. 13(1)(a).

²²Ibid. s. 13(1)(c). Section 19(1) of the Act sets out the no-minimum residency condition in the following terms:

19.(1) In order that a province may qualify for a full cash contribution referred to in section 14 for a fiscal year, the law of the province must not

(a) require or allow a period of residence in the province of Canada to be set as a condition of eligibility for social assistance or for the receipt or continued receipt thereof; or

(b) make or allow the amount, form or manner of social assistance to be contingent upon a period of such residence.

²³Section 6(2)(b) of the Charter guarantees the right "to move to and to take up residence in any province."

²⁴By imposing this condition, the CHST (like CAP) in fact responds to a weakness in section 6(3)(b) of the Charter, which allows the provinces to impose residency requirements as a condition of receipt of "publicly provided social services," so long as these are "reasonable"; see generally Martha Jackman, "Interprovincial Mobility Rights Under the Charter" (1985) 43 University of Toronto Faculty of Law Review 16.

²⁵For a critique of the impact of the CHST in the fields of health and education, see e.g., Health Action Lobby, A Prescription for Medicare: A Submission to the House of Commons Standing Committe on Finance and the Minister of Finance (Ottawa: Health Action Lobby, November 1995); Ra hel Macdonald, "Bad Medicine: Medicare Under Attack", in Contested Terrain: Exposing a Myths Behind Social Program Reforms (Ottawa: The Council of Canadians, 1995); Canadian Association of University Teachers, Brief the Standing Committee on Finance on Bill C-76 (Ottawa: Canadian Association of University Teachers, May 1995).

²⁶R.S.C. 19 5, c. C-6, ss. 7-12.

²⁷Federal-Provincial Fiscal Arrangements Act, supra note 3 s. 17(2).

²⁸Ibid. s. 13 (1)(b).

²⁹See for example Sherri Torjman, "Is CAP in Need of Assistance?", in Keith Banting and Ken Battle, eds., A New Social Vision for Canada: Perspectives on the Federal Discussion Paper on Social Security Reform (Kingston: School of Policy Studies, Queen's University, 1994) 99; Ian Morrison, Beyond Cost Sharing: The Canada Assistance Plan and National Welfare Standards (Toronto: Clinic Resource Office, June 1994); Allan Moscovitch, "The Canada Assistance Plan", in Sherri Torjman, ed., Fiscal Federalism for the 21st Century (Ottawa: Caledon Institute of Social Policy, 1993) 57; National Council of Welfare, The Canada Assistance Plan: No Time for Cuts (Ottawa: Supply and Services Canada,1991).

³⁰The implications of the CAP condition that provincial assistance must meet basic requirements was addressed by the Supreme Court of Canada in its 1993 decision in Finlay v. Canada (Minister of Finance), [1993] 1 S.C.R. 1080. After succeeding in his initial claim, in Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, that he had standing to bring a court action to enforce CAP conditions, Jim Finlay argued that, by reducing his monthly assistance to recover past overpayment, Manitoba was violating s. 6(2)(a) of CAP, since it was impossible for him to meet basic needs on the remaining amount. A majority of the Supreme Court decided, at 1125-1126, that by stating that assistance must "take into account" the basic requirements of a person in need, CAP "requires assistance to be provided in an amount that is compatible, or consistent, with an individual's basic requirements." While the Court held that s. 6(2)(a) "requires something more than mere 'consideration' of an individual's basic requirements", it found that the section did not "necessitate an exact fit in the sense of requiring a province to provide an amount of assistance that `fulfils' or `equals' basic requirements for each payment period." For a discussion of the 1993 Finlay decision see Margot Young, "Starving in the Shadow of Law: A Comment on Finlay v. Canada (Minister of Finance)" (1994) 5 Constitutional Forum 31; Arne Peitz, The Finlay Decision: What Next? (Winnipeg: Public Interest Law Centre, May 1993); Morrison, Beyond Cost-Sharing: The Canada Assistance Plan, supra note 29.

³¹See Frances Woolley, Women and the Canada Assistance Plan (Ottawa: Status of Women Canada, February 1995); and the papers and briefs cited supra note 8.

³²See e.g., Gunderson, Muszynski and Keck, Women and Labour Market Poverty, supra note 6; Susan D. Phillips, "Social Policy in Winter", in Keith G. Banting, Douglas M. Brown and Thomas J. Courchene, eds., The Future of Fiscal Federalism (Kingston: School of Policy Studies, Queen's University, 1994) 283.

³³Supra note 30.

³⁴See generally, Sheilah Turkington, "A Proposal to Amend the Ontario Human Rights Code: Recognizing Povertyism" (1993) 9 Journal of Law and Social Policy 134; Dennis Guest, The Emergence of Social Security in Canada, rev. 2d ed. (Vancouver: University of British Columbia Press, 1985); James J. Rice, "Politics of Income Security - Historical Developments and Limits to Future Change", in Brice Doern, Res. Coord., The Politics of Economic Policy (Toronto: University of Toronto Press, 1985) 221.

³⁵For a comprehensive review of recent provincial welfare reforms, and their particular impact on women, see Katherine Scott, Women and Welfare State Restructuring: Inventory of Canadian Income Security and Employment-Related Initiatives, (North York: Centre for Research on Work and Society, York University, 1995); and see also Ian Morrison and Gwyneth Pearce, "Under the Axe: Social Assistance in Ontario in 1995" (1995) 11 Journal of Law and Social Policy 1.

³⁶See Scott, Women and Welfare State Restructuring, ibid.

³⁷Turkington, "A Proposal to Amend the Ontario Human Rights Code", supra note 34 at 163-164.

³⁸See generally "Let’s STOP Poor Bashing", in 30 Million Good Reasons to Have National Standards for Welfare - An Action Guide from NAPO (Ottawa: National Anti-Poverty Organization, 1995) 11; Jean Swanson, "Discrimination Against Low Income People: What's it Like?" (December 1992) 21 Action Line 9; Beth French, "A Grinding Response to Poverty" The Globe and Mail (15 May 1992) A16; Pam Fleming, "Poor-nography Rages On" (May 1993) V:6 Flawline 1; Martha Jackman, "Constitutional Contact with the Disparities in the World: Poverty as a Prohibited Ground of Discrimination under the Canadian Charter and Human Rights Law" (1994) 2 Review of Constitutional Studies 76 at 89-95.

³⁹See generally Jean Swanson, "Robbing from the Poor to Give to the Rich: How the Liberals Are 'De-Forming' Social Policy", in Exposing the Myths Behind Social Program Reforms, supra note 25.

⁴⁰See for example Ruth Buchanan, "From the War Against Poverty to the War Against the Poor", in Women and Criminal Law: Proceedings of the Women and the Law Conference 1995 (Forthcoming, Moncton: Caucus des femmes et le droit, Ecole de droit, Universit6 de Moncton, 1996); Bonnie J. Fox, ed., Family Patterns, Gender Relations (Toronto: Oxford University Press, 1993); Barbara Roberts, "Trends in the Production and Enforcement of Female 'Dependence"' (1990) 4 Canadian Journal of Women and the Law 217; Michael D. Wright, "Women, Work and Welfare: The Thompson Report and Beyond" (1989) 5 Journal of Law and Social Policy 227; Mary Jane Mossman, "The Feminization of Poverty: Challenging Constitutional Reform to Respond to Women's Needs", in David Schneiderman, ed., Conversations Among Friends - Entre Amies: Proceedings of an Interdisciplinary Conference on Women and Constitutional Reform (Edmonton: Centre for Constitutional Studies, 1992) 83.

⁴¹Social Planning Council of Metropolitan Toronto, Re-writing the Contract with Canada: Submission to the Standing Committee on Finance Regarding Bill C-76, The Budget Implementation Act (Toronto: Social Planning Council of Metropolitan Toronto, May 1995) at 4; see also Canadian Council on Social Development, Social Policy Beyond the Budget, supra note 5; Charter Committee on Poverty Issues,

Bill C-76 and the Human Rights of the Poor: Notes for a Presentation Before the Standing Committee on Finance by the Charter Committee on Poverty Issues (Ottawa: Charter Committee on Poverty Issues, May 1995) 8.

⁴²Jackman, "Constitutional Contact with the Disparities in the World", supra note 38 at 95-100.

⁴³Robert Howse, "Another Rights Revolution? The Charter and the Reform of Social Regulation in Canada", in Judith Maxwell, Patrick Grady, and Robert Howse, Redefining Social Security (Kingston: School of Policy Studies, Queen's University, 1995) 99 at 135.

⁴⁴Supra note 6.

⁴⁵See for example National Action Committee on the Status of Women, National Women's Consultation on the Social Security Review Ottawa, December 3-5, 1994: Final Report of Recommendations (Toronto: National Action Committee on the Status of Women, December 1994); Jennissen, "The Federal Social Security Review", supra note 8; Woolley, Women and the Canada Assistance Plan, supra note 31.

⁴⁶Lisa Addario, "Cuts to Legal Aid: Women Stand to Lose the Most" (Fall 1995) 15:2 Jurfsfemme 1; and see generally National Council of Welfare, Legal Aid and the Poor (Ottawa: Supply and Services Canada, 1995).

⁴⁷See for example National Action Committee on the Status of Women, Submission of the National Action Committee on the Status of Women Regarding Bill C-76, supra note 5.

⁴⁸For a discussion of the cost-cutting aspect of the 1995 Budget and the CHST, see Ken Battle, Constitutional Reform by Stealth (Ottawa: Caledon Institute for Social Policy, May 1995); The Council of Canadians, Danger Ahead, supra note 5; Michael Mendelson, Looking for Mr. Good-Transfer: A Guide to the CHST Negotiations (Ottawa: Caledon Institute for Social Policy, October 1995).

⁴⁹S. 52(1) of the Constitution Act, 1982, provides that: "The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect."

⁵⁰For a history of section 28 see Penny Kome, The Taking of Twenty-Eight.- Women Challenge the Constitution (Toronto: Women's Press, 1983); Chaviva Hosek, "Women and the Constitutional Process", in Keith Banting and Richard Simeon, eds., And No One Cheered: Federalism, Democracy and the Constitution Act (Toronto: Methuen, 1983) 14; and see also Katherine J. de Jong, "Sexual Equality: Interpreting Section 28", in Anne F. Bayefsky and Mary Eberts, eds., Equality Rights and the Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985) 493.

⁵¹[1989] 2 S.C.R.143.

⁵²[1989] 1 S.C.R. 1296. See also Symes v. Canada, [1993] 4 S.C.R. 695 at 754-755, per Iacobucci J.; Miron v. Trudel, [1995] 2 S.C.R. 418 at 488, per McLachlin J.; Egan v. Canada, [1995] 2 S.C.R. 513 at 530, per LaForest J.

⁵³For an expanded discussion of the difference between a formal and substantive approach to equality, see for example Francine Fournier, “Égalité et droits à 1'égalité", in Lynn Smith, ed., Righting the Balance - Canada's New Equality Rights (Saskatoon: The Canadian Human Rights Reporter, 1986) 25; Lynn Smith, "A New Paradigm for Equality Rights", in ibid. at 351; Sheilah L. Martin, "Persisting Equality Implications of the "Bliss" Case", in Sheilah L. Martin and Kathleen E. Mahoney, eds., Equality and Judicial Neutrality (Toronto: Carswell, 1987) 195; Gwen Brodsky and Shelagh Day, Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back? (Ottawa: Canadian Advisory Council on the Status of Women, 1989); Colleen Sheppard, "Recognition of the Disadvantaging of Women: The Promise of Andrews v. Law Society of British Columbia (1989) 35 McGill Law Journal 207; and see also Status of Women Canada, The Federal Plan for Gender Equality, supra note 10 at 10-11.

⁵⁴[1995] 2 S.C.R. 418 at 488.

⁵⁵Thibaudeau v. Canada, [1995] 2 S.C.R. 627 at 701; see also Rodriguez v. The Queen, [1993] 3 S.C.R. 519 at 549.

⁵⁶See generally, Nitya Iyer, "Categorical Denials: Equality Rights and the Shaping of Social Identity" (1993) 19 Queen's Law Journal 179; Nitya Duclos (Iyer), "Disappearing Women: Racial Minority Women in Human Rights Cases" (1993) 6 Canadian Journal of Women and the Law 25.

⁵⁷S.C. 1970-71-72, c. 63.

⁵⁸Symes v. Canada, supra note 52 at 769.

⁵⁹[1992] 2 S.C.R. 679 at 701-702. In his discussion of the appropriate remedy in the Schachter case, Justice Lamer criticized the Nova Scotia Court of Appeal's decision, in Reference Re Family Benefts Act (1987), 75 N.S.R. (2d) 338, to strike down the province's family benefits legislation because the program denied benefits to sole support fathers. In Justice Lamer's view, given the overall purposes of the Charter, reading sole support fathers into the legislation would have been a more appropriate remedy than striking down the legislation, and thereby depriving single mothers and their children of support.

⁶⁰Dartmouth/Halifax County Regional Housing Authority v. Sparks (1993), 101 D.L.R. (4th) 224 at 233-234 (N.S.C.A.); R. v. Rehberg (J.) (1993), 127 N.S.R. (2d) 331 (N.S.S.C.); Schaff v. The Queen (1993), 18 C.R.R. (2d) 143 at 158 (T.C.C.).

⁶¹For a discussion of the use of fraud provisions under the federal Criminal Code to prosecute women in New Brunswick accused of violating spouse-in-the-house rules under provincial welfare regulations, see Anne Dugas-Norsman, "L'Affaire Anne-Marie Parisd", in Women and Criminal Law: Proceedings of the Women and the Law Conference 1995, supra note 40. In the Ontario context see Erlee Carruthers, "Prosecuting Women for Welfare Fraud in Ontario: Implications for Equality" (1995) 11 Journal of Law and Social Policy 241.

⁶²R. v. Rehberg, supra note 60 at 351-52; and see generally Ian Morrison, Spouse-in-the-house Charter Challenge (Toronto: Clinic Resource Office, November 1995).

⁶³By requiring that assistance must be made available to all those in need, s. 6(2)(a) of CAP precludes a province from requiring that recipients participate in workfare programs as a condition of assistance. In addition, s. 15(3)(a) of CAP provides that cost-shared work-related projects cannot require participation as a condition of assistance; see generally Morrison, Beyond Cost-,sharing, supra note 29; Mark A. Drumbl, "Exploring the Constitutional Limits of Workfare and Learnfare" (1994) 10 Journal of Law and Social Policy 107.

⁶⁴For a general review and critique of recent Canadian and American workfare initiatives, including their particular impact on women, see e.g., Felicite Stairs, "Sole Support Mothers and Opportunity Planning in the Thompson Report" (1989) 5 Journal of Law and Social Policy 165; Paula Rochman, "Working for Welfare: A Response to the Social Assistance Review Committee" (1989) 5 Journal of Law and Social Policy 198; National Council on Welfare, Social Security Backgrounder # 4: Working for Welfare (Ottawa: National Council on Welfare, 1994); Patricia M. Evans, "Linking Welfare to Jobs: Workfare Canadian Style" (May 1995) 16:4 Policy Options 5; Deena White, "Quebec's Employability Development Programs: A View from the Inside" (May 1995) 16:4 Policy Options 25; Christopher McAll, "Le cercle vicieux de 1'aide social" (May 1995) 16:4 Policy Options 29; Ernie S. Lightman, "You Can Lead a Horse to Water, but...: The Case Against Workfare in Canada", in John Richards et al., Helping the Poor: A Qualified Case for "Workfare" (Vancouver: C.D. Howe Institute, 1995) 151; Workfare Watch (Toronto: Social Planning Council of Metropolitan Toronto, February 1996).

⁶⁵See for example National Council of Welfare, Women and Poverty Revisited, supra note 6; Gunderson, Muszynski and Keck, Women and Labour Market Poverty, supra note 6; Rochman, "Working for Welfare", ibid.; Social Assistance Review Committee, Transitions (Toronto: Queen's Printer, 1988) 318.

⁶⁶See for example Shelagh Day, "Constitutional Reform: Canada's Equality Crisis", in Schneiderman, Conversations Among Friends, supra note 40, 95 at 98; National Association of Women and the Law, The Federal Social Security Reform: Taking Gender into Account, supra note 8 at 55.

⁶⁷See generally Martha Jackman, "The Protection of Welfare Rights Under the Charter" (1988) 20 Ottawa Law Review 257 at 259-283.

⁶⁸See for example John D. Whyte, "Fundamental Justice: The Scope and Application of Section 7 of the Charter" (1983) 13 Manitoba Law Journal 455; Jackman, "The Protection of Welfare Rights Under the Charter", ibid.; Ian Morrison, "Security of the Person and the Person in Need: Section 7 and the Right to Welfare" (1988) 4 Journal Law and Social Policy 33; Ian Johnstone, "Section 7 of the Charter and the Right to Welfare" (1988) 46 University of Toronto Faculty of Law Review 1; Lucie Lamarche, "La nouvelle Loi sur la sécurité du revenu au Québec: quelques réflexions d'actualité" (1991) 21 Revue de droit, Université de Sherbrooke 335; Teressa Scassa, "Social Welfare and Section 7 of the Charter: Conrad v. Halifax (County of)" (1994) 17 Dalhousie Law Journal 187; Martha Jackman, "Poor Rights: Using the Charter to Support Social Welfare Claims" (1993) 19 Queen's Law Journal 65.

⁶⁹Law Reform Commission of Canada, Medical Treatment and the Criminal Law (Working Paper 26) (Ottawa: Law Reform Commission of Canada, 1980) at 6. This definition was quoted by Justice Wilson in her decision in Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177 at 207.

⁷⁰[1989] 1 S.C.R. 927 at 1003-1004.

⁷¹Scassa, "Social Welfare and Section 7 of the Charter", supra note 68 at 197.

⁷²Singh v. Canada, supra note 69 at 212-216; ldziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631 at 656.

⁷³[1985] 2 S.C.R. 653 at 661.

⁷⁴Jennifer Nedelsky, "Reconceiving Autonomy: Sources, Thoughts and Possibilities" (1989) 1 Yale Journal of Law and Feminism 7 at 27.

⁷⁵See generally Jackman, "The Protection of Welfare Rights under the Charter", supra note 68 at 305-322.

⁷⁶Section 36(2) commits the federal government "to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable level of taxation."

⁷⁷See Jackman, "The Protection of Welfare Rights Under the Charter", supra note 68 at 299-305.

⁷⁸Pierre E. Trudeau, < i>Income Security and Social Services: Working Paper on the Constitution (Ottawa: Queen's Printer, 1969) at 66.

⁷⁹19 December 1966, Can.T.S. 1976 No. 46, 993 U.N.T.S. 3.

⁸⁰18 December 1979, Can. T.S. 1982 No. 31, 1249 U.N.T.S. 13.

⁸¹Under international law, the federal state is fully responsible for sub-state compliance with the provisions of a treaty. While the Canadian government has been able to avoid this responsibility in other international agreements, through the use of a "federal-state" clause, it is not permitted to do so under the International Covenant on Economic, Social and Cultural Rights. The fact that Canadian domestic law limits the federal government's ability to legislate directly within areas of provincial jurisdiction does not absolve the Canadian government from its international law duty to ensure that Canadians enjoy the rights set out under the human rights treaties which Canada has ratified. National conditions attached to federal welfare spending is an obvious way for the federal government to meet the strictures of both international and domestic law in this area.

⁸²[1989] 1 S.C.R. 1038 at 1056-1057; Re Public Service Employee Relations Act, [1987] 1 S.C.R. 313 at 349. For a general discussion of the relationship between the Charter and international human rights law, see Anne F. Bayefsky, International Human Rights Law: Use in Canadian Charter of Rights and Freedoms Litigation (Toronto: Butterworths, 1992).

⁸³Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Minutes of Proceedings and Evidence, First Session of the Thirty-second Parliament, 1980-1981, Issue no. 3 at 28 (12 November 1981).

⁸⁴GA Res. 217A (III), U.N.Doc. A/810(1948).

⁸⁵19 December 1966, Can. T.S. 1976 No. 47, 999 U.N.T.S. 171.

⁸⁶It is now accepted by many legal scholars, however, that the Universal Declaration has achieved the status of customary international law, and hence applies to Canada to the same extent as conventional international law; see for example John Claydon, "International Human Rights Law and the Interpretation of the Canadian Charter of Rights and Freedoms" (1982) 4 Supreme Court Law Review 287 at 288-89.

⁸⁷For a discussion of the Covenant and its implementation measures, see Philip Alston and Gerard Quinn, "The Nature and Scope of States Parties' Obligations Under the International Covenant on Economic, Social and Cultural Rights" (1987) 9 Human Rights Quarterly 156.

⁸⁸Section 2(2) provides that: "The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

⁸⁹These rights are reiterated in their application to children under the Convention on the Rights of the Child, 20 November 1989, Can. T.S. 1992 No. 3; U.N.Doc. A/RES/44/25. In particular, Article 26 of the Convention sets out "for every child the right to benefit from social security, including social insurance ..."; see also infra note 120.

⁹⁰Craig Scott argues that comparative case law under the European Social Charter and the evolving views of the U.N. Committee on Economic, Social and Cultural Rights, charged with responsibility for interpreting the Covenant, make it likely that the Committee will interpret Articles 9 and 11 in tandem as generating a right to a judicial or quasi-judicial appeal of decisions to reduce or to deny assistance; see Craig M. Scott, "Covenant Constitutionalism and the Canada Assistance Plan" (1995) 6 Constitutional Forum 79 at 82; Craig Scott and Patrick Macklem, "Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution" (1992) 141 University of Pennsylvania Law Review 1 at 102-104.

⁹¹See Alston and Quinn, "The Nature and Scope of States Parties' Obligations Under the International Covenant on Economic, Social and Cultural Rights", supra note 87.

⁹²Multiculturalism and Citizenship Canada, International Covenant on Economic, Social and Cultural Rights - Second Report of Canada on Articles 10-15 (Ottawa: Supply and Services Canada, 1992) [hereinafter Second Report]. Earlier reports dealing with the implementation of Articles 6-9, 10-12, and 13-15 were submitted by Canada in 1980, 1983, and 1985; see Bayefsky, International Human Rights Law, supra note 82 at 678.

⁹³Second Report, ibid. at 5.

⁹⁴Ibid.

⁹⁵Ibid. at 8, 15.

⁹⁶Ibid. at 38-146.

⁹⁷United Nations Economic and Social Council, Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties Under Articles 16 and 17 of the Covenant: Concluding Observations of the Committee on Economic, Social and Cultural Rights (Canada), Geneva, 10 June 1993, FJC. 12/1993/5. The Committee's report is reproduced at (1993) 20 CH.R.R. C/1.

⁹⁸Ibid. para. 12.

⁹⁹Ibid. paras. 13-24.

¹⁰⁰Ibid. paras. 25-32.

¹⁰¹Charter Committee on Poverty Issues, National Anti-Poverty Organization and National Action Committee on the Status of Women, Re: The International Covenant on Economic, Social and Cultural Rights and Proposed Legislation by Canada (Bill C-76) to Eliminate the Canada Assistance Plan (CAP) - Presentation to the Committee on Economic, Social and Cultural Rights by Non-Governmental Organization from Canada (Ottawa: National Anti-Poverty Organization, May 1 1995). For a discussion of this initiative and its legal significance, see Scott, "Covenant Constitutionalism and the Canada Assistance Plan", supra note 90.

¹⁰²Committee on Economic, Social and Cultural Rights, Concluding Observations, supra note 97 para. 18.

¹⁰³Ibid. paras. 24-26.

¹⁰⁴Scott, "Covenant Constitutionalism and the Canada Assistance Plan", supra note 90; and see also Lucie Lamarche, "Le droit international des droits économiques de la personne et le Quart monde occidental: a-t-on parlé pour ne rien dire?", in L'actualité de la Déclaration universelle des droits de l'Homme - Cahier des communications du Collogue du 10 décembre 1993 (Montréal: Commission des droits de la personne du Québec, Département des sciences juridiques de I'U.Q.A.M. and Société québécoise de droit international. December 1993) 35.

¹⁰⁵Supra note 80. For a discussion of the Convention and the general issue of the international protection of women's rights, see The United Nations and the Advancement of Women, 1945-1995 (New York: Department of Public Information, United Nations, 1995); Rebecca J. Cook, ed., Human Rights of Women: National and International Perspectives (Philadelphia: University of Philadelphia Press, 1994).

¹⁰⁶Supra note 89.

¹⁰⁷United Nations Fourth World Conference on Women, Report of the Fourth World Conference on Women (Beijing, 4-15 September 1995), A/CONF.177/20, 17 October 1995 at 157.

¹⁰⁸Annex I to the Report of the Fourth World Conference on Women, ibid. at 5-8.

¹⁰⁹Annex II to the Report of the Fourth World Conference on Women, ibid. at 4-135.

¹¹⁰Ibid. at 21-23.

¹¹¹Ibid. at 22 (para. 52).

¹¹²Ibid. at 23 (para. 58(b)).

¹¹³Ibid. at 24 (para. 58(g)).

¹¹⁴Ibid. at 24-25 (para. 58(1)).

¹¹⁵Supra note 22.

¹¹⁶In 1994, provincial welfare rates ranged from 24 per cent to 55 per cent of the poverty line for single employable persons, and from 46 per cent to 72 per cent of the poverty line for a family of four; see National Council of Welfare, Welfare Incomes 1994 (Ottawa: Supply and Services Canada, 1995) at 27-28.

¹¹⁷This conception of adequacy was put forward by a coalition of anti-poverty groups and activists (including the author) during discussions leading up to the Charlottetown Accord Referendum. The "Alternative Social Charter" proposed the constitutional entrenchment of "an equal right to well-being", including a right to "a standard of living that ensures adequate food, clothing, housing, child care, support services and other requirements for security and dignity of the person and for full social and economic participation in their communities and in Canadian society"; see "Draft Social Charter", in Joel Bakan and David Schneiderman, eds., Social Justice and the Constitution: Perspectives on a Social Union for Canada (Ottawa: Carleton University Press, 1992) 155.

¹¹⁸See for example Scott, Women and Welfare State Restructuring: Inventory of Canadian Income Security and Employment-Related Initiatives, supra note 35; National Council of Welfare, Welfare in Canada: The Tangled Safety Net (Ottawa: Supply and Services Canada, 1987); Roeher Institute, Comprehensive Disability Income Security Reform (Toronto: Roeher Institute, 1992); Yvonne Peters, "Understanding the Values and Assumptions Underpinning Canada's Social Security System", Memorandum # 1, in Income Security Reform From a Disability Rights Perspective, supra note 6. 119. In keeping with these recommendations, sections 13 and 19 of the Federal-Provincial Fiscal Arrangements Act should be amended as follows:

13.(1) Subject to this part, a Canada Health and Social Transfer may be provided to a province for a fiscal year for the purposes of

(c) maintaining the national standards set out in section 19(1); and

(d) promoting the shared principles set out in section 19(3).

1.9.(1) In order that a province may qualify for a full cash contribution referred to in section 14 for a fiscal year, the laws of the province

(c) must provide financial aid or other assistance to any person in the province who is in need, irrespective of the cause of need, in an amount or manner that takes into account the basic requirements of that person in terms of food, clothing, housing, fuel, utilities, household supplied, personal requirements, child care and support services;

(d) must not, in the design or delivery of programs and services, discriminate on the basis of sex, race, national or ethnic origin, colour, religion, age, mental or physical disability, or other analogous grounds;

(e) must maintain an effective and accessible procedure for appeals by persons who are directly affected by decisions relating to their initial or continuing eligibility for assistance or services, including to a provincial review board and, on appeal, to a superior court;

(3) A province receiving a cash contribution referred to in section 14 for a fiscal year does so recognizing

(a) the distinct needs and particular disadvantages which low-income women face, and the importance of designing and delivering programs and services in a manner which ensures their security and promotes their social and economic equality;

(b) the need to increase opportunities for women to participate in welfare design and reform, and the need to make programs and services more accountable to the women who use them.

¹²⁰C.R.C. 1978, c. 382.

¹²¹Supra note 26.

¹²²See Health Canada, Canada Health Act Annual Report 1994-1995 (Ottawa: Supply and Services Canada, 1995).

¹²³Social Planning Council of Metropolitan Toronto, Re-writing the Contract with Canada, supra note 41 at 5.

¹²⁴The Federal Court Trial Division, in the Finlay case, found that the recovery of overpayment under Manitoba's Social Allowances Act did violate the CAP condition that provincial benefits meet basic requirements. On that basis the Trial Division issued an injunction against the federal Minister of Finance enjoining payment to Manitoba under CAP so long as provincial legislation was in violation of CAP; Finlay v. Canada (Minister of Finance) (1989), 57 D.L.R. (4th) 211. As discussed, supra note 30, the Supreme Court of Canada came to the opposite conclusion on the issue whether Manitoba's system for recovering overpayment violated CAP.

¹²⁵Torjman and Battle, Can we Have National Standards?, supra note 5 at 7.

¹²⁶For a discussion of the existing "data gap" in this area, see National Council of Welfare, The Tangled Safety Net, supra note 118 at 116-118; National Council of Welfare, The 1995 Budget and Block Funding,supra note 5 at 23.

¹²⁷Section 20 of the Canada Health Act provides that where a province permits physicians to extra-bill, contrary to section 18 of the Act, or where it permits a hospital to impose user charges, contrary to section 19 of the Act, an amount equivalent to the amount estimated by the Minister of Health to have been charged to patients shall be deducted from the province's cash contribution under section 5 of the Act. For a general review of these provisions, see Martha Jackman, "The Regulation of Private Health Care Under the Canada Health Act and the Canadian Charter" (1995) 6 Constitutional Forum 54.

¹²⁸In keeping with these recommendations, sections 21 and 23.1 of the Federal-Provincial Fiscal Arrangements Act should be amended as follows:

21. (1) Where, on the referral of a matter under section 20, the Governor in Council is of the opinion that the province does not or has ceased to comply with the conditions set out in section 19, the Governor in Council shall, by order, direct that there shall be deducted from the cash contribution to the province for a fiscal year an amount that the Minister of Human Resources Development estimates that the province has saved by failing to comply with the conditions in section 19.

(5) This Part shall be enforceable at the instance of any party or of any person adversely affected upon application to a court of competent jurisdiction.

23.1 The Minister of Human Resources Development shall, as soon as possible after the end of each fiscal year, prepare a report respecting the administration and operation of this Part for that year, including all relevant information on the extent to which the provinces have satisfied the conditions and principles in section 19, and shall cause the report to be laid before each House of Parliament.

¹³⁰Status of Women Canada, The Federal Plan for Gender Equality, supra note 10 at 23.

End of Document

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