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

20 National Journal of Constitutional Law 115-127, 2006

17 Pages Posted: 14 Jul 2014 Last revised: 14 Mar 2015

See all articles by Martha Jackman

Martha Jackman

University of Ottawa - Common Law Section

Date Written: 2006

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

Suggested Citation

Jackman, Martha, Reality Checks: Presuming Innocence and Proving Guilt in Charter Welfare Cases (2006). 20 National Journal of Constitutional Law 115-127, 2006. Available at SSRN: https://ssrn.com/abstract=2304528

Martha Jackman (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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