Constitutional Castaways: Poverty and the Mclachlin Court

Abstract

The author argues that the Supreme Court has not fulfilled the expectations of marginalized groups that government action and inaction would be subject to Canadian Charter scrutiny. Instead it has perpetuated exclusion, disadvantage and discrimination against the poor. By exploring the few poverty-related cases the McLachlin Court has heard over the past 10 years and those it has refused to hear, the author discusses how the Court has knowingly endorsed interpretations of the Charter that are injurious to the rights of poor people. The paper concludes by suggesting what is required of the Court in order for poor people's status as “constitutional castaways” to finally change: namely, recognizing poverty as a prohibited ground of discrimination under section 15; rejecting the notion that the Charter offers no positive rights protection to the poor; and taking seriously the access to justice concerns of people living in poverty.

Keywords: Canada, poverty, human rights, Charter, discrimination, equality, section 15, access to justice, welfare, McLachlin, Supreme Court