Competence concerns in Charter adjudication: countering the anti-poverty incompetence argument.

• Author: Wiseman, David

Canadian courts are reluctant to impose anti-poverty obligations upon governments under the Canadian Charter of Rights and Freedoms. Concerns over the limits of the institutional competence of courts have played an explicit role in this reluctance. The anti-poverty incompetence argument that has thus emerged is an instance of a broader concern over competence that is evident across the spectrum of types of Charter cases.

This article traces the emergence of a judicial framework for recognizing and responding to competence concerns in early Charter adjudication and describes the main lines of its evolution in subsequent cases. At the same time, and for the most part remaining within the confines of issues and arguments contained in accumulated Charter case law, the article critically evaluates the ongoing application of the framework in anti-poverty Charter cases. The central argument of the article is that the case law on competence concerns cannot justify placing relatively greater limits on the availability or rigour of Charter protection for anti-poverty claims than for other types of claims. Indeed, the argument is that the case law in fact offers encouragement to courts to pursue responses that manage the concerns or improve competence, thereby allowing equally fulsome protection for anti-poverty claims.

Les tribunaux canadiens sont peu enclins a imposer des obligations de lutte antipauvrete aux gouvernements selon les termes de la Charte canadienne des droits et libertes. Les preoccupations quant aux limites a la competence institutionnelle des tribunaux ont particulierement motive ces hesitations. L'argument d'incompetence en matiere de revendications antipauvrete qui s'est manifeste reflete un souci plus large quant a la competence, souci qui est evident dans tous les types de causes intentees en vertu de la Charte.

Cet article trace l'emergence d'un cadre judiciaire qui recounaitrait et qui repondrait aux questions de competence manifestes dans les toutes premieres decisions prises en vertu de la Charte, tout en exposant les grandes ligues de l'evolution de ce cadre dans les decisions ulterieures. D'autant plus, et s'en tenant generalement aux questions et aux raisonnements souleves dans la jurisprudence accumulee de la Charte, l'article evalue d'un oeil critique l'application continue de ce cadre dans les decisions en matiere de lutte antipauvrete appuyees sur la Charte. La proposition centrale de l'article est que la jurisprudence traitant les questions de competence ne peut justifier l'elaboration de limites relativement plus considerables a la disponibilite ou a la rigueur de la protection de la Charte en reponse aux revendications antipauvrete. En effet, l'auteur propose que la jurisprudence offre en realite un encouragement aux tribunaux a proposer des reponses qui gerent les questions ou ameliorent la competence, permettant ainsi une protection aussi ample aux revendications antipauvrete.

Introduction I. Situating Competence as an Interpretive Consideration II. Competence Concerns in Charter Decisions A. Starting Out: The Irrelevance of Competence B. Recognizing Competence Challenges: Framework and Problems 1. The Foundational Framework for Competence Concerns 2. The Three Fundamental Challenges to Competence 3. The Four Responses to Competence Challenges 4. The Foundational Framework: Reprised and Theorized 5. The Foundational Framework and Anti-Poverty Incompetence 6. Three Problems with the Foundational Framework C. Subsequent Developments in Competence Concerns 1. Fiscal Impact, Competence, and Anti-Poverty Cases a. Competence in Anti-Poverty Cases: Overview and Assessment b. Fiscal Impact Magnitude as Competence Measure: Problems 2. Reconstructing Deference: A Normative Counterbalance a. The Paramountcy of Vulnerable Groups' Interests b. Vulnerable Groups' Interests as Counterbalance 3. Validating Creative Engagement or Competence-Building Conclusion Introduction

Over the first two decades of adjudication under the Canadian Charter of Rights and Freedoms, (1) Canadian courts have been reluctant to hold that the Charter requires governments to prevent poverty from undermining the rights and freedoms it protects. In other words, the courts have been unwilling to interpret and apply the Charter as imposing anti-poverty obligations upon governments. One argument offered by both judges and scholars in justifying this unwillingness is that courts lack the institutional competence to adjudicate anti-poverty Charter claims and, therefore, the availability or rigour of anti-poverty protection ought to be limited. In this article I take issue with this "anti-poverty incompetence argument".

The anti-poverty incompetence argument has played an express role in judicial hesitancy over anti-poverty Charter obligations since an early 1990s lower court decision rejecting a challenge to disqualification from social assistance due to the so-called "spouse-in-the-house" rule. (2) In the Supreme Court, it is evident as recently as the decision in Gosselin v. Quebec (A.G.), (3) which rejected a challenge to Quebec's use of reduced rates of social assistance as an "incentive" for participation in employability programs. In that case, Justice Arbour wrote a strong dissent in favour of a Charter right to adequate social assistance. Nevertheless, she accepted that the competence challenges associated with trying to define adequacy might render the right unenforceable. Even more recently, the incompetence argument appears to have informed the Court's decision in Chaoulli v. Quebec (A.G.), (4) which jeopardized Quebec's prohibition on private health insurance for medically necessary services available through the public health care system. (5) That case did not directly involve an anti-poverty adequate health care obligation, yet most members of the Court indicated their reluctance to recognize any such obligation. (6) For some of them, this reluctance was seemingly in part due to competence concerns. (7)

The anti-poverty incompetence argument forms part of a broader landscape of Charter case law addressing the competence concerns that have arisen across a spectrum of Charter claims--from challenges to mandatory retirement (8) to complaints about restrictions on tobacco-product marketing, (9) from claims about minority-language education facilities (10) to challenges to rape-shield laws. (11) The general judicial recognition of competence concerns dates back almost to the inception of Charter adjudication. (12)

In this article I primarily assess and criticize the anti-poverty incompetence argument from the perspective of the broader landscape of competence-related Charter decisions. Thus, for the purposes of this article, I largely refrain from questioning the judicial analysis of why and when the competence of courts is challenged. I also leave undisturbed the judicial position that anti-poverty claims can raise competence challenges. Instead, my argument is that the accumulated Charter case law on competence concerns cannot justify placing relatively greater limits on the availability or rigour of Charter protection offered to anti-poverty claims than to other types of claims. Moreover, I argue, the accumulated case law ought to prompt courts to pursue responses that manage the challenges or improve competence, thereby allowing equally fulsome protection for anti-poverty claims.

The argument advanced in this article proceeds in the following stages. In Part I, I situate the issue of the competence of courts as one of the three main types of considerations that are relied upon in Charter interpretation and enforcement by the judiciary. This includes illustrations of the appearance of each type of consideration in anti-poverty Charter cases. In Part II, I explain and assess the anti-poverty incompetence argument in terms of accumulated Charter decisions dealing with the issue of competence. In so doing, I build my counter-argument. I begin with the early position that competence concerns were irrelevant to Charter adjudication and then discuss the cases that overturned that position and established a foundational framework for recognizing and responding to competence concerns. This includes a brief confirmation that the framework is consistent with academic theories on court competence. I next explain how the foundational framework allows for the anti-poverty incompetence argument, using the basic parameters of a generic Charter challenge to inadequate social assistance as context. I then identify various problems with the foundational framework and the implications of those problems for the anti-poverty incompetence argument. Keeping the problems in view, I go on to consider subsequent applications of, and developments in, the foundational framework. This includes an identification and assessment of the extent to which those developments address the problems and support or counter the anti-poverty incompetence argument.

As such, the argument of this article is largely confined to the four corners of accumulated Charter decisions and does not purport to be sufficient to overcome the various competence-based objections to anti-poverty constitutional rights adjudication that can be found in, or extrapolated from, the academic literature. But since the debates in the academic literature and in case judgments inform one another, addressing the arguments as they arise in the case law at least provides a resource for addressing the academic arguments. Further, the treatment of competence concerns in Charter adjudication has received very little academic attention to date, yet competence concerns are clearly playing a role in a broad spectrum of Charter cases. Therefore, some effort to describe and assess the role of competence concerns in Charter decision making, even if only on its own terms, is overdue.

1. Situating Competence as an Interpretive Consideration

   In all types of Charter cases, anti-poverty...