Reality Checks: Presuming Innocence and Proving Guilt in Charter Welfare Cases

Abstract

Legal professionals have learned to take the neutrality and justice of laws and their underlying principles for granted: laws are presumed to be “innocent” and those who allege bias in the law are subject to the highest burden of proof. Likewise, in the social welfare context, the presumption that beneficiaries are “guilty”, while governments are innocent, pose formidable barriers to welfare recipients who claim their Charter rights have been violated. The author argues that, as the Supreme Court of Canada’s decision in Gosselin v Québec (Attorney General) illustrates, the outcome in Charter welfare cases is dictated less by the language of Charter provisions or traditional legal analysis, as by judges' willingness to test the presumptions of innocence and guilt advanced by governments against the reality of the existing welfare system and the actual experience of welfare recipients.

Keywords: Charter, welfare, social assistance, Gosselin, section 7, human rights, economic rights, Canada