Open Justice or 'Just Us'?: The Poor, the Courts and the Charter

Abstract

The right to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms, and the right to equality under section 15, provide a firm basis for addressing inadequacies and inequities in legislation affecting Canadians living in poverty. Yet few welfare-related claims brought by low income plaintiffs have succeeded in the courts. The failure of Charter-based challenges by people living in poverty ultimately reflects an artificial and outmoded distinction between negative and positive rights. Judicial reliance on this distinction results in the mischaracterization of cost concerns as grounds to deny substantive rights, rather than as a consideration in determining the appropriate remedy for poverty-related rights violations. Judicial deference to the legislature in social assistance cases fails to recognize that deficiencies in social assistance legislation and programs are the direct result of political exclusion of the poor, and points to a systemic unresponsiveness to the needs of poor Canadians.

Keywords: Charter, Canada, law, Rights, Freedoms, equality, life, liberty, security, poverty, economic, poor, social, welfare, constitution, social assistance