The Politics of Poverty: Why the Charter Does Not Protect Welfare Rights

• Author: Mary Shaw
• Position: University of Victoria, Faculty of Law
• Pages: 1-9

APPEAL VOLUME 12 n 1

THE POLITICS OF POVERTY:

WHY THE CHARTER DOES NOT PROTECT WELFARE

RIGHTS

Mary Shaw, University of Victoria - Faculty of Law

Mary Shaw wrote this paper while a third year student at the University of Victoria, Faculty of Law. She is

currently working as a legislative analyst with the B.C. Ministry of Education.

CITED: (2007) 12 Appeal 1-9

Canada’s Charter of Rights and Freedoms (“Charter”) contains no explicit right to wel-

fare;1 yet in recent years, the Charter has become a principal site of struggle for state support

of persons in poverty. Those who advocate recognition of an entrenched right to welfare argue

that, based upon a jurisprudence that identif‌ies human dignity as the fundamental value un-

derlying Charter rights and freedoms, it is indefensible to leave the right to basic necessities of

life outside the realm of Charter protection.2 This claim is both legal, in that their conclusion is

reached through deductive reasoning based upon legal principles such as substantive equality

and security of the person, and deeply political, because their understanding of human dignity

is informed by their politics. However, the political claim upon which the legal arguments are

founded is subsumed within and disguised by court decisions that must be articulated in terms

of facts and law.

Welfare rights advocates’ conception of human dignity is founded upon a particular un-

derstanding of the nature and causes of poverty and the proper relationship between citizens

and the state. This conception is out of step with the dominant political consensus. Welfare

rights advocates believe that poverty exists because of social and economic factors beyond

the individual’s control.3 From this perspective, they argue that the state has a responsibility

to provide the resources necessary to ensure that everyone has the means to provide for basic

food, housing and shelter, and they seek to strengthen this responsibility by making it a legal

obligation.

Though this understanding of poverty may once have been dominant, political trends over

the last twenty-f‌ive years have inf‌luenced Canadians’ ideas about poverty and about what the

state can or should be expected to do about it. Current welfare policies ref‌lect the presump-

1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982

(U.K.), 1982, c. 11 [Charter].

2 See Gwen Brodsky & Shelagh Day, “Beyond the Social and Economic Rights Debate: Substantive Equality Speaks to Pov-

erty” (2002) 14 C.J.W.L. 185; See also Martha Jackman, “What’s Wrong With Social and Economic Rights?” (2000) 11:2

N.J.C.L. 235.

3 I use the term “welfare rights” to refer to an individual’s right to suff‌icient food, shelter, clothing, education, health care,

and the corresponding positive obligation on the state to ensure to provide these things directly or suff‌icient money to buy

these things to those who do not have them.