Social Assistance and the Charter: Is There a Right to Welfare in Canada?

• Author: Amber Elliot
• Position: Entered her third year of law at the University of Victoria in January of 2001
• Pages: 74-84

Is there a

Right to Welfare

in Canada?

Social Assistance and the Charter :

1C. Reich, “Individual

Rights and Social

Welfare: The Emerging

Legal Issues” (1965) 74

Yale L.J. 1245 at 1256.

2I. Johnstone, “Section

7 of the Charter and

Constitutionally

Protected Welfare”

(1988) 46 U.T. Fac. L.

Rev. 1 at 9.

3See J. Brodie,

“Restructuring and the

New Citizenship” in I.

Bakker, ed.,Rethinking

Restructuring: Gender

and Change in Canada

(Toronto: University of

Toronto Press, 1996),

126-140 for an

interesting discussion

about how the rise of

neo-liberalism has

disproportionately

affected women.

4Canadian Charter of

Rights and Freedoms, s.

7, Part I of the

Constitution Act, 1982,

being Schedule B to the

Canada Act 1982

(U.K.), 1982, c.11.

Amber Elliot

entered her third year

of law at the

University of Victoria

in January of 2001.

She completed her

Bachelor of Arts in

Political Science at

the University of

Calgary.

The idea of entitlement is simply that when individuals have insufficient

resources to live under conditions of health and decency, society has

obligations to provide support, and the individual is entitled to that

support as of right.

Charles Reich1

Introduction

Over the past several decades, the question of whether people have a

right to welfare has been vigorously debated. After the Great

Depression and World War II, a widespread consensus emerged

that people had the right, as citizens, to receive assistance when they needed

it. Governments accepted the idea that there were economic and structural

causes of poverty. If poverty is caused by forces that the individual cannot

control, “welfare entitlements are conceived as rights, not favours – a

fulfilment of the ideal that each person is entitled to his/her due as citizen.”2

In recent years, however, this “citizenship” perspective has come under

attack. The rise of neo-liberalism in the 1980s and 1990s led to the virtual

erosion of the Keynesian Welfare State.3Poverty became known as an

individualized problem and it was not long before the principle of

universality was abandoned in favor of the needs test. Today, governments

are eager to reduce social expenditures and reluctant to acknowledge that

individuals may be entitled to a level of social assistance that is sufficient to

meet their basic needs. In the present paper, I examine the issue of whether

there is a right to welfare. S. 7 of the Canadian Charter of Rights and Freedoms4

provides the focus for my analysis. I will show that while a strong case can be

made that s. 7 protects welfare rights, the arguments in favor of a

constitutional right to welfare may be of limited practical value.

Current Trends: Low Rates and Strict Eligibility Requirements

The issue of whether people have a right to a minimum level of

social assistance is one of growing concern for poverty law advocates and

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