Contents
Part
I: OVERVIEW
Part II: STATEMENT OF FACTS
Part III: LEAF'S POSITION ON THE ISSUES
Part IV: THE LAW
Part V: ORDER REQUESTED
PART
I: OVERVIEW
1. The Women's
Legal Education and Action Fund ("LEAF") is a national,
non-profit organization whose mandate is to promote the equality rights
of Canadian women through litigation, research, public education and
other law reform efforts. By order of Chief Justice McMurtry, dated
15 November 2000, LEAF was granted leave to intervene in this appeal.
2. At issue is whether
Regulation 366 under the Family Benefits Act as amended by O.Reg. 409/95,
and Regulation 537 under the General Welfare Assistance Act, as amended
by O.Reg. 410/95 ("the Regulations"), which define "spouse"
to determine eligibility for social assistance violate s. 15 and s.
7 of the Canadian Charter of Rights and Freedoms.
3. The Regulations
impose a legal presumption that if a welfare applicant or recipient
lives in the same dwelling as a person of the opposite sex, the two
are "spouses". The recipient or applicant must produce evidence
to rebut this presumption. Even where the individuals do not consider
themselves "spouses", have no legal obligation to support
each other, and have no meaningful financial interdependence, they are
deemed "spouses" if the social and familial aspects of their
relationship amount to cohabitation and they meet the minimal threshold
of having "a mutual agreement or arrangement regarding their financial
affairs". Of all welfare recipients, only single parents –
of whom 95% are women – are categorically denied assistance in
their own right when they are deemed to be living with a "spouse".
Further, of all receipients who do not live with a putative "spouse",
only single parent recipients are denied benefits unless there is "no
reasonable prospect of reconciliation" with a "spouse".
4. LEAF takes the
position that (a) the Regulations violate equality rights under s. 15(1)
of the Charter by discriminating on the enumerated ground of sex; (b)
the Regulations violate equality rights under s. 15(1) of the Charter
by discriminating on the analogous ground of being a single mother on
social assistance; (c) the Regulations violate women's rights to liberty
and security of the person under s. 7 of the Charter by depriving poor
women of economic support for basic survival, violating their privacy,
and placing women at increased risk of domestic violence; and (d) these
violations are not demonstrably justifiable under s. 1 of the Charter.
PART II: STATEMENT OF FACTS
5. LEAF adopts the
facts as set out in the Respondents' factum. LEAF also highlights the
following facts which relate to the social, economic, legal and historical
context in which the Regulations operate and which appropriately situate
the constitutional inquiry. Before reviewing the socio-economic context,
LEAF outlines the relevant legislative history. Excerpts of the relevant
statutes and regulations are reproduced at Schedule B of the factum.
A.
Legislative History
6. Since its introduction,
social assistance for single mothers in need has been premised on the
idealized family with clearly demarcated gender roles which assume a
male breadwinner and a female dependent caring for children. The state
has stepped in to provide support only where the male "breadwinner"
is absent or unable to fulfil his role, and where the female "dependent"
is deemed by community standards to be morally "deserving"
of assistance.
Janet Mosher,
"Managing the Disentitlement of Women: Glorified Markets, the
Idealized Family and the Undeserving Other" in Restructuring
Caring Labour: Discourse, State Practice and Everyday Life (2000)
at 38-39
Margaret Little
and Ian Morrison, "‘The Pecker Detectors are Back': Regulation
of the Family Form in Ontario Welfare Policy" (1999), 34:2 Journal
of Canadian Studies 110 at 112-113
Margaret Leighton,
"Handmaids' Tales: Family Benefits Assistance and the Single-Mother-Led
Family" (1987), 45 University of Toronto Faculty of Law Review
324 at 327
7. Mothers' allowance,
introduced in 1920, was available only to women whose husbands had died
or were permanently disabled, who were responsible for the care of young
children, and who were considered "fit and proper person[s] to
receive an allowance." To determine if women were "fit and
proper", state workers scrutinized women's conduct in relation
to various moral issues, including cleanliness, sobriety, governance
of children, and, especially, chastity. Any implication of sexual "misbehaviour"
could disentitle a recipient.
Little and Morrison,
"Regulation of Family Form", supra at 113-114
Leighton, "Handmaids'
Tales", supra at 328-331
8. Although the
range of "morally deserving" mothers gradually grew to include
mothers who were deserted wives (1921), foster mothers (1921), divorced
women (1955), and unwed mothers (1957), the law expressly continued
to make eligibility conditional upon these women being "fit and
proper" or "suitable person[s] to receive an allowance".
By the 1950s, "suitability" was determined largely in relation
to financial honesty and a woman's sexual conduct.
Little and Morrison,
"Regulation of Family Form", supra at 114
9. In 1966, Ontario
consolidated its benefits programs in a single statute. Although the
"suitable person" clause was dropped, to be eligible for benefits,
the law still required that a single mother be living as a "single
person". By law, then, women continued to face intense and invasive
state scrutiny of their relations, sexual and otherwise, with men. This
scrutiny involved surveillance of homes to identify if a man visited,
unannounced visits by caseworkers, searches through bedrooms, closets
and bathrooms for evidence of a male presence, and questioning of landlords,
neighbours and co-workers: "If there was a man in the house, the
law presumed that it was his responsibility - not the state's - to provide
for the woman and children".
Mosher, "Managing
Disentitlement", supra at 38
Affidavit of
Margaret Little, Respondents' Record, Tab 15 at 626, 632-633
10. Although the
law was amended in 1982 to include benefits for single fathers, male
recipients then made up less than 1% of the single parent welfare caseload.
In 1995, men remained at less than 6% of the single parent welfare caseload.
Leighton, "Handmaids'
Tales", supra at 334
Affidavit of
Nancy Vander Plaats, Respondents' Record, Tab 10, Exhibit E at 234-235
11. In 1987, in
settling a Charter challenge launched by LEAF, the government amended
the regulations to define "spouse" in relation to whether
the individuals had, by statute, court order or domestic contract, a
legal obligation to support each other. Thus, in line with support obligations
under the Family Law Act, persons of the opposite sex were deemed "spouses"
only after they had lived together continuously for at least three years.
To protect women's privacy, the 1987 regulations also stated that "sexual
factors" would not be investigated or considered in a spousal determination.
The government announced that these amendments were made with the express
intent to "move away from intrusive investigations into private
conduct towards a system which looks at the objective needs of sole
support parents".
Mosher, "Managing
Disentitlement", supra at 39
Vander Plaats
Affidavit, Respondents' Record, Tab 10, Exhibit G at 238
12. The impugned
Regulations, introduced in 1995, replaced the "three year"
cohabitation rule with a presumption that as soon as a single woman
resides with a man, that man is her spouse and is providing her and
her children with economic support; and with a requirement that a single
mother living apart from a "spouse" is entitled to support
only where there is "no reasonable prospect of reconciliation"
with an absent "spouse". The 1995 Regulations were introduced
at the same time that the government initiated a 1-800 hotline and encouraged
people, under a promise of anonymity, to report suspected welfare fraud.
Ontario, Ministry
of Community and Social Services News Release: "Government Combats
Fraud and Tightens Welfare Rules" (23 August 1995)
Little Affidavit,
Respondents' Record, Tab 15 at 633, para 38; and Exhibit F at 931-932
13. The FBA Regulations
and regulations under statutes that replaced the GWAA were amended in
2000 to extend the definition of "spouse" to individuals residing
with a person of the same sex. However, LEAF submits that this extension
in no way departs from the underlying premise that personal intimacy
implies economic dependence. The 2000 amendments are not at issue in
this appeal. In any event, LEAF submits that they merely impose patriarchal
structures on same sex relationships and mask the prejudicial impacts
and stereotypes about women that are reinforced by the Regulations.
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B.
Social and Economic Context in which the Regulations Operate
1. Women are Economically More Vulnerable than Men
14. Women remain
economically disadvantaged relative to men. In Canada more women than
men live in poverty. In 1993, 56% of all people below Statistics Canada's
Low Income Cut Off ("LICO") were women, and 20% of all women
in Canada lived below this poverty line.
Statistics Canada,
Women in Canada: A Statistical Report (1995) at 84-85
15. Not only are
women at greater risk of poverty, but when they are poor, they also
experience greater depths of poverty than men. Of all family configurations,
single mothers and their children experience both the greatest risk
and greatest depth of poverty. Two-thirds of Ontario's single mothers
and their children live in poverty. In 1980-1996, on average, single
mother-led families in Canada lived about $10,000 below Statistics Canada's
LICO.
National Council
of Welfare, Poverty Profile 1996 (1998) at 53
Affidavit of
Brigitte Kitchen, Respondents' Record, Tab 11 at 282-283
2.
Who are Welfare Recipients in Ontario?
16. In Ontario,
54% of all welfare recipients are women. Single parents make up 30%
of all those on social assistance, but almost all single parents on
assistance – some 95% – are women. Of all women on welfare,
51% are single mothers.
Vander Plaats
Affidavit, Respondents' Record, Tab 10 at 158, Exhibit E at 234-235
17. Some 50% of
women on welfare have experienced domestic violence involving physical
and/or sexual abuse and are on welfare after leaving violent relationships.
All four claimants in this case had left abusive relationships. For
these women, having an income independent of any control or ownership
by a man secures for them the financial and psychological integrity
that is essential if they are to to heal from past abuse and to re-build
their own and their children's lives free of violence.
Little Affidavit,
Respondents' Record, Tab 15 at 638; Cross-examination of Margaret
Little, Appellant's Record, Vol. 3, Tab 1 at 120-123, 187-189, Q524-537,
Q837-841
Affidavit of
Usha Gici George, Respondents' Record, Tab 13 at 543-546
Affidavit of
Robert Fulton, Respondents' Record, Tab 17 at 943
3. Social and Economic Disadvantage of Single Mothers
18. A number of
factors explain the gendered dimension of poverty in Canada and the
economic disadvantage of single mothers in particular.
19. Systemically,
women earn lower incomes than men and women are also often required
to limit their paid workforce participation to care for children.
Moge v. Moge,
[1992] 3 S.C.R. 813 at 861-862
20. Over 80% of
single parent families in Canada are headed by women. Most single parents
are women because, overwhelmingly, single women care for children born
where the mother was never married or in a common law relationship,
and, overwhelmingly, women retain custody of children upon separation
and divorce. For most women, assuming primary responsibility for childcare
when a relationship ends simply entails continuing the duties they fulfilled
during the relationship.
Kitchen Affidavit,
Respondents' Record, Tab 11 at 280
Moge v. Moge,
supra at 863
Young v. Young,
[1993] 4 S.C.R. 3 at 49-50
21. When a relationship
ends, single mothers experience a sharp drop in income, while men usually
retain or improve their former standard of living. Statistics Canada
figures reveal that in the year following divorce, on average, the income-relative-to-needs
of women with children drops by over 40%, while that of men rises 18%.
After divorce or separation, most men have incomes that place them well
above the poverty line, while most mothers with custody have incomes
below the poverty line even when support payments are received. Most
single mothers are single and poor following divorce or separation.
Frances Wooley,
"Intra-Family Inequality: Implications for the Design of Income
Support" (Ottawa: Canadian Advisory Council on the Status of
Women, 1994) at 4-5
Moge v. Moge,
supra at 855
Willick v. Willick,
[1994] 3 S.C.R. 670 at 715-716
Kitchen Affidavit,
Respondents' Record, Tab 11 at 281
22. The profile
of single mothers is very different from single fathers. Single fathers
tend to be older, to care for older children, and to have more established
careers and higher incomes. Single fathers also remarry or establish
new relationships more quickly than single mothers.
Kitchen Affidavit,
Respondents' Record, Tab 11 at 280
23. Women, and in
particular single mothers, face specifically gendered barriers to escaping
poverty. Women's education, training and employment are more frequently
interrupted in order to have and care for children. This has a continuing
adverse effect on their ability to enter or re-enter the paid labour
force. Lack of available and/or affordable childcare limits the number
of hours women can work outside the home, which affects women's ability
to find, keep and advance in paid employment. In addition, taking time
off work to care for sick children and family members puts single mothers
at increased risk of losing their jobs. Finally, when they find work,
women's incomes are lower and more precarious because women are concentrated
in jobs that are lower paid and less stable than men's jobs.
Kitchen Affidavit,
Respondents' Record, Tab 11 at 283-287
M. Gunderson,
L. Muszynski, J. Keck, Women and Labour Market Poverty (Ottawa: Canadian
Advisory Council of the Status of Women, 1990) at 18-19
Vander Plaats
Affidavit, Respondents' Record, Tab 10 at 156-157
4. Stigma that Relates to Receipt of Social Assistance
24. Numerous negative
stereotypes and social prejudices persist against individuals on welfare.
These include the notions that welfare recipients are not genuinely
in need, make fraudulent claims, waste their money, and are able to
work but are too lazy and unmotivated to do so. In addition, very specific
stereotypes and prejudices stigmatize women and single mothers on welfare.
These include the notions that "welfare mothers" are immoral
and promiscuous, have lots of children in order to boost the size of
their welfare cheque and abuse the system by staying on welfare when
they are not in need.
Vander Plaats
Affidavit, Respondents' Record, Tab 10 at 158-160
Erlee Carruthers,
"Prosecuting Women for Welfare Fraud in Ontario" (1995),
11 Journal of Law & Social Policy 214 at 250-252
Affidavit of
Bruce Porter, Respondents' Record, Tab 14 at 589-594
Little Affidavit,
Respondents' Record, Tab 15 at 628
CHRA Review Panel,
Promoting Equality: A New Vision (2000) at 109-110
25. The reality
is that less than 3% of single mothers on welfare are under the age
of 20. Most single mothers on welfare are in their mid- to late-20s
and 30s. On average, single mothers on welfare have slightly fewer children
than mothers not on welfare. And most single mothers use welfare only
once and for a relatively short period of time. Half of single mother
recipients use welfare following divorce or separation and rely on it
for less than two years. As an overall average, single mother recipients
exit the welfare system within 3½ years to 4 years.
National Council
of Welfare, Profiles of Welfare: Myths and Realities (1998) at 1-3
Kitchen Affidavit,
Respondents' Record, Tab 11, Exhibit C at 426
Porter Affidavit,
Respondents' Record, Tab 14 at 590-591
Little Affidavit,
Respondents' Record, Tab 15, Exhibit e at 862-865
26. Despite many
studies exposing the fallacy of these stereotypes, they persist. Moreover,
stereotypes about welfare fraud are becoming increasingly prevalent
in response to the government crackdown on welfare fraud of which the
Regulations are a part. There remains a presumption that in certain
circumstances women receiving welfare are "cheating" and "that
personal intimacy implies illegitimate financial intimacy".
Mosher, "Managing
Disentitlement", supra at 43
Shelley Gavigan,
"Legal Forms, Family Forms, Gendered Norms: What is a Spouse?",
(1999) 14:1 Canadian Journal of Law and Society 127 at 144-145 and
footnote 84
5. Who was Affected by the Impugned Regulations?
27. The impugned
regulations came into effect on 1 October 1995. By April 1996, 10,013
welfare recipients had been declared ineligible due directly to the
new definition of "spouse". Of those declared ineligible for
benefits, 89% were women; 79% were sole support parents; and of the
sole support parents rendered ineligible, 96% were single mothers.
Cross-Examination
of Kevin Costante, Appellant's Record, Vol 1, Tab 23, Ex. Q, at 119
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PART
III: LEAF'S POSITION ON THE ISSUES
28. LEAF's intervention
relates only to the constitutionality of the impugned Regulations. LEAF
submits that (a) the Regulations violate the right to equality under
s. 15(1) by discriminating against women on the basis of sex; (b) the
Regulations violate s. 15(1) by discriminating on the analogous ground
of being a single mother on social assistance; (c) the Regulations violate
women's rights to liberty and security of the person under s. 7; and
(d) that these violations are not demonstrably justifiable under s.
1 of the Charter.
PART IV: THE LAW
A.
Government's Obligations to Disadvantaged Groups
29. Under s. 15(1)
of the Charter, government has an obligation to ensure that the laws
it makes "tak[e] into account their possible impact on already
disadvantaged classes of persons". In addition, s. 15(1) "require[s]
that the government not be the source of further inequality".
Rodriguez v.
British Columbia (Attorney General), [1993] 3 S.C.R. 519 at 549, per
Lamer C.J.C. (dissenting but not with respect to this comment)
Thibaudeau v.
Canada, [1995] 2 S.C.R. 627 at 655, per L'Heureux-Dubé J. (dissenting
but not with respect to this comment)
Eldridge v. British
Columbia (Attorney General), [1997] 3 S.C.R. 624 at 677-678
30. LEAF submits
that the present Regulations violate s. 15(1) because they fail to take
into account the real needs and circumstances of an already disadvantaged
group and exacerbate the depth of disadvantage and inequality that poor
women and poor single mothers experience.
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B. The Regulations Violate Section 15's Equality Guarantees
31. While Law v.
Canada is the most recent comprehensive analysis of s. 15, LEAF has
deep concerns with the case, including the unduly individualistic analysis
of human dignity Law adopts and the fact that Law incorporates into
the s. 15(1) analysis some factors relating to the purpose of the impugned
law that properly belong in a s. 1 analysis. LEAF does not rely on either
of those two aspects of Law in making its arguments in this case.
32. To establish
a s. 15(1) violation, it is necessary to show that: (a) the law, in
purpose or effect, creates a distinction which denies one of the equality
rights; (b) the distinction is based on an enumerated or analogous ground;
and (c) the distinction is substantively discriminatory.
Law v. Canada,
[1999] 1 S.C.R. 497 at 548
33. Each step of
the s. 15 analysis is made with reference to s. 15's purposes which
are
"... to prevent the violation of essential human dignity and freedom
through the imposition of disadvantage, stereotyping, or political and
social prejudice, and to promote a society in which all persons enjoy
equal recognition at law as human beings or as members of Canadian society,
equally capable and equally deserving of concern, respect and consideration."
Law v. Canada,
supra at 549
34. Whether s. 15
is violated must be assessed subjectively and objectively from the claimants'
perspective – here, women and single mothers on welfare: "All
of that individual's or that group's traits, history and circumstances
must be considered in evaluating whether a reasonable person in circumstances
similar to those of the claimant would find that the [regulation] which
imposes different treatment has the effect of demeaning his or her dignity."
Law v. Canada,
supra at 532-533
35. Most importantly,
the Supreme Court of Canada has repeatedly emphasized that s. 15 claims
must be examined in the broader social, political, historical and legal
context within which the impugned law operates and within which the
claims arise:
"Determining
whether legislation violates these purposes [of s. 15] requires examining
the legislation in the context in which it applies, with attention to
the interests it affects, and the situation and history in Canadian
society of those who are treated differently by it. ...
"... The analysis
of discriminatory impact must be conducted with a careful eye to the
context of who is affected by the legislation and how it affects them."
Corbière
v. Canada, [1999] 2 S.C.R. 203 at para. 63-64, per L'Heureux-Dubé
J. (dissenting but with respect to this comment)[emphasis in the original]
Law v. Canada,
supra at 531-541
R. v. Turpin,
[1989] 1 S.C.R. 1296 at 1331-1332
36. The present
s. 15 analysis must give due consideration to the context outlined earlier
in this factum: (a) women's and single mother's pre-existing social
and economic disadvantage; (b) the historical treatment of women on
social assistance; (c) the damaging and persistent stereotypes and prejudices
that are directed towards social assistance recipients in general and
towards women and single mothers on social assistance in particular;
(d) the fact that a large percentage of women on social assistance have
left violent domestic relationships; and (e) the fact that, overwhelmingly,
those affected by the Regulations are women. To this context, one must
also add due consideration of the nature of the interest at stake –
the right of those in extreme poverty to receive assistance to secure
the basic necessities of life.
Law v. Canada,
supra at 534-541
37. LEAF submits
that the comparative analysis proposed by the Appellant is unduly narrow,
and is conducted within the four corners of the legislation without
reference to the broader context. Further, the Appellant's comparison
between "common law couples" and married couples begs the
very question which is at issue: by deeming individuals to be spouses
when they owe each other no legal obligations of support, and thus reinforcing
prejudicial stereotypes about sex and economic dependence, do the Regulations
discriminate contrary to the Charter?
38. LEAF's comparative analysis is supported by the Supreme Court of
Canada which has ruled that, where the law defines an individual as
a spouse, the constitutionality of the law's impact must be analyzed
with reference to the treatment of that individual. This focus on the
individual, combined with a full contextual analysis, properly reveals
that the legal definition of spouse can have a differential impact upon
different individuals who may be deemed a spouse, and reveals the real
and qualitatively distinct impact these Regulations have on women.
M. v. H., [1999]
2 S.C.R. 3 at para. 61
1. The Regulations
Create Differential Treatment
39. The 1995 Regulations
define a "spouse" as a person of the opposite sex who resides
with a welfare applicant/recipient if the two have a "mutual agreement
regarding their financial affairs" and the "social and familial
aspects" of their relationship "amount to cohabitation".
40. The Regulations
treat women and single parents on social assistance differently from
all others who may be deemed "spouses" under provincial law.
This occurs in five ways:
(a) Only applicants
and recipients of social assistance are defined as a "spouse"
as soon as a person of the opposite sex begins to reside with them,
even in the absence of any legal obligation to support one another:
see para. (d)(iii) of the definition of "spouse" in each Regulation.
In particular,
this contrasts sharply with the Family Law Act which, for the purposes
of determining support obligations, defines a "spouse" to
include only individuals who are legally married, and unmarried individuals
who have cohabited continuously for not less than three years, or who
are in a relationship of some permanence and are the natural or adoptive
parents of a child.
Family Law Act,
R.S.O. 1990, c. F-3, ss. 29, 30, 31
(b) Only applicants
and recipients of social assistance must by law rebut a presumption
that a person of the opposite sex is their "spouse" as soon
as that person begins to reside with them: see s. 1(3) of each Regulation.
(c) Of all welfare
recipients, only single parents are categorically denied assistance
in their own right once they are deemed to be or have a "spouse".
All other welfare recipients have their benefit level re-assessed in
light of the resources and income of a "spouse", but if their
overall income is found to be below established levels of need, a partial
top up allowance is paid out: see s. 2(7)(b) of Regulation 366; s. 7(8)
of Regulation 537.
(d) Of all welfare
recipients, only single parents are categorically denied assistance
unless they are living apart from their "spouse" "by
reason of separation with no reasonable prospect of reconciliation":
see s. 2(7)(b) of Regulation 366; s. 7(8) of Regulation 537.
(e) As a result
of this regime, women and single parents on social assistance are subject
to heightened and invasive state scrutiny of their personal relationships.
41. This differential
treatment denies women and single mothers on social assistance equal
benefit and protection of the law by disqualifying them from receiving
social assistance.
2. The Distinction
is Based on Prohibited Grounds
42. LEAF submits
that the above differences are based on two prohibited grounds: the
enumerated ground of sex and the analogous ground of being a single
mother on welfare.
43. Section 15 of
the Charter protects disadvantaged groups against both direct and indirect
discrimination. Even where a law is framed in neutral terms – does
not draw explicit distinctions on the basis of prohibited grounds –
it can create distinctions based on prohibited grounds if its operation
disproportionately affects individuals or groups identified by those
grounds.
Janzen v. Platy
Enterprises Ltd., [1989] 1 S.C.R. 1252 at 1284-1291, esp. at 1290-1291
[sexual harassment is indirect discrimination on the basis of sex]
Rodriguez v.
British Columbia, supra at 555-557, per Lamer C.J.C. [laws against
assisted suicide indirectly discriminate on the basis of physical
disability]
Eldridge v. British
Columbia, supra at 670-675 [funding for health care apply to all but
indirectly discriminate on the basis of disability]
44. To find discrimination
in the operation of a facially neutral law, it is not necessary that
only members of the claimant group be affected by the law, and it is
not necessary that all members of the claimant group be equally affected
by the law.
Rodriguez v.
British Columbia, supra at 556-557
Janzen v. Platy,
supra at 1288-1290
Brooks v. Canada
Safeway Ltd, [1989] 1 S.C.R. 1219 at 1247
Symes v. Canada,
[1993] 4 S.C.R. 695 at 769
45. Contrary to
the Appellant's submissions, the fact that the Regulations apply to
women and men, to single mothers and single fathers, does not preclude
a finding of discrimination against either women or single mothers.
The Appellant's analysis denies the substantive effect of the Regulations
in the real world. Their analysis also fails to comply with the Supreme
Court of Canada's express direction that even where a law is "applicable
to everyone", to identify discrimination, it is of "crucial
importance" to consider the law's effect from the claimant's perspective:
who is affected? and are they affected in a manner related to a prohibited
ground?
Corbière
v. Canada, supra at para. 63-64, per L'Heureux-Dubé J.
Rodriguez v.
British Columbia, supra at 548-549, 555
Janzen v. Platy,
supra at 1284-1285, 1288-1290
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a. Distinctions in Relation to Sex
46. The Regulations
distinguish on the basis of sex because 89% of the individuals they
affect are women. In addition, the Regulations have significant gender-specific
impacts:
(a) because women
and single mothers live in deeper poverty than men, the consequences
of terminating their benefits are more devastating;
(b) women also
experience the Regulations' burdens in a qualitatively different way
because
(i) they perpetuate
a long history of state scrutiny of women's personal lives;
(ii) they reinforce
the prejudicial stereotype that women's intimate relationships with
men invariably involve economic dependence or exchange; and
(iii) the fact
that women are at greater risk of domestic violence means that they
experience the loss of income independent of male control in a qualitatively
different and more prejudicial way.
b. Distinctions in Relation to Single Mothers on Assistance
47. The Regulations
also discriminate against single mothers on social assistance:
(a) In numerical
terms, single mothers are disproportionately affected by the Regulations.
Single mothers make up almost 95% of single parents receiving welfare
and make up almost 76% of all individuals disqualified from receiving
benefits due to the 1995 spousal definition.
(b) Single mothers
are also disproportionately disadvantaged in relation to the degree
and the qualitative experience of the law's burden. In addition to the
qualitative difference that all women on welfare experience (outlined
above), single mothers on welfare experience the burden in qualitatively
distinct ways because
(i) the Regulations
reinforce prejudicial stereotypes that relate specifically to single
mothers on welfare and their propensity to "cheat" the welfare
system;
(ii) the loss of
income independent of male control places single mothers at serious
prejudice because only they, and not their putative spouse, have a legal
obligation to provide their children with the necessaries of life; and
(iii) the Regulations
impose added burdens which apply only to single parents (categorical
denial of benefits in their own right; the "no reconciliation"
rule which puts women escaping domestic violence at greater risk).
c. "Single
Mothers on Social Assistance" are an Analogous Ground
48. Being a "single
mother on social assistance" is analogous to the prohibited grounds
of distinction which are enumerated in s. 15(1).
49. Marital status
has already been accepted as an analogous ground under s. 15(1). Thus,
as it is a matter of marital status, the condition of being a single
mother is also analogous.
Miron v. Trudel,
[1995] 2 S.C.R. 418 at 497-500
50. Single mothers
on social assistance also share many of the historical, social, political
and economic characteristics of disadvantage which the Supreme Court
of Canada has relied upon to identify analogous grounds.
Miron v. Trudel,
supra at 495-496
Vriend v. Alberta,
[1998] 1 S.C.R. 493 at 546
51. The historical
treatment of single mothers on welfare and their profound economic disadvantage
has already been noted above. In addition, single mothers on welfare
often experience multiple layers of discrimination based on grounds
enumerated in s. 15(1), including sex, race, disability and age, and
grounds analogous to them, such as poverty.
Little Affidavit,
Respondents' Record, Tab 15, Exhibit C at 747-753, 824-826
Fulton Affidavit,
Respondents' Record, Tab 17, Exhibit B at 967-968
Martha Jackman,
"Constitutional Contact with Disparities in the World" (1994),
2:1 Review of Constitutional Studies 76 at 81-83
Canadian Panel
on Violence Against Women, Changing the Landscape (1993) at 64
52. The persistent
negative stereotypes and social stigma directed at single mothers on
social assistance have also been noted. As a result, these women are
politically vulnerable to having their interests overlooked. Their political
marginalization is reinforced by government programs that emphasize
the need to "combat welfare fraud", to tighten welfare eligibility
to force welfare recipients back to work, and to save Ontario taxpayers'
money.
MCSS, News Release
(23 August 1995)
Mosher, "Managing
Disentitlement", supra at 43-47, esp. at 47
53. All but three provincial and territorial human rights codes, for
some purposes, prohibit discrimination on the basis of a ground related
to receiving welfare. In these provinces, discrimination is prohibited
on the basis of "receipt of public assistance" (Ontario, Saskatchewan,
and Nova Scotia); "source of income" (Alberta, Manitoba, Prince
Edward Island and the Yukon); "social condition" (Québec)
and "social origin" (Newfoundland). The relevant statutory
excerpts are reproduced at Schedule B to the factum.
54. Further, the
2000 review of the Canadian Human Rights Act, chaired by former Supreme
Court Justice Gerard La Forest, recommended that "social condition",
as it relates to social and economic disadvantage, be added as a prohibited
ground of discrimination in the Canadian Human Rights Act.
Promoting Equality:
A New Vision, supra at 106-113
55. This constellation
of socio-economic, legal and political indices of disadvantage has led
a number of courts to recognize that the purposes of s. 15(1) are engaged
in protecting welfare recipients, single mothers, and single mothers
on social assistance from discrimination. In particular, the Nova Scotia
Supreme Court recognized single mothers on social assistance as an analogous
group in ruling that province's spouse-in-the-house regulation unconstitutional.
R. v. Rehberg
(1993), 127 N.S.R. (2d) 331 (N.S.S.C.) at 351-352 [single mothers
on social assistance]
Dartmouth/Halifax
County Regional Housing Authority v. Sparks (1993), 101 D.L.R. (4th)
224 (N.S. C.A.) at 233-234 [single mothers]
Schachter v.
Canada (Employment and Immigration Commission), [1992] 2 S.C.R. 697
at 701-702 [single mothers]
Federated Anti-Poverty
Groups v. British Columbia (Attorney General) (1991), 70 B.C.L.R.
(2d) 325 (B.C.S.C.) at 344 [welfare recipients]
3. The Distinction
is Discriminatory
56. Apart from their
disproportionate numerical impact on women, the 1995 Regulations perpetuate
damaging stereotypes and impose qualitatively distinct burdens on women.
57. Although either
men or women may be disqualified from benefits under the Regulations,
this does not preclude a finding that the impact is discriminatory in
relation to women and single mothers. The Supreme Court of Canada has
expressly recognized that men and women will experience identical treatment
in qualitatively different ways because of the broader social and political
context and this qualitative difference can establish discrimination
under s.15(1).
Weatherall v.
Canada (Attorney General), [1993] 2 S.C.R. 872 at 877-878
see also: Janzen
v. Platy, supra at a1284-1285, 1288-1290
58. Taking into
account the full context in which the Regulations operate, LEAF submits
that a law that deems a woman to be a "spouse" against her
will and that forces a woman into economic dependence upon a man who
has no legal obligation to support her, is experienced in a qualitatively
different and gender-specific way that discriminates contrary to s.
15(1).
a. The Regulations
Reinforce Prejudicial Stereotypes
59. First, the Regulations
are discriminatory because they reflect and entrench a number of stereotypes
and prejudices about women. In particular, they reinforce the stereotype
that women's intimate relationships with men invariably involve an economic
exchange and that any involvement with a man necessarily implies economic
dependence or exchange.
60. The Regulations
reinforce additional stereotypes that specifically prejudice single
mothers on assistance: that single mothers are inherently prone to commit
welfare fraud and so must be subject to extra scrutiny; that reliance
on social assistance is a social evil; and that social welfare recipients
represent an unwarranted and illegitimate burden on the public fisc.
As one commentator writes:
"The ‘welfare
cheater' does not present a genderless face to the public. The problems
of abuse and overuse perceived to exist in the system are increasingly
being blamed on the large number of women who can't seem to find a man
or, in his stead, a job."
Carruthers, "Prosecuting
Women for Welfare Fraud", supra at 241, 248-250
Leighton, "Handmaids'
Tales", supra at 327
R. v. Rehberg,
supra at 351-352
61. In particular, the differential treatment between single mothers
and other categories of welfare recipients reinforces the view that
the law is less concerned with the actual needs of single mothers living
in poverty, than with their potential unification with a male "breadwinner".
Leighton, "Handmaids'
Tales", supra at 336
b. The Regulations
Have Concrete Discriminatory Effects
62. The Regulations
also have a number of concrete effects with qualitatively gender-specific
impacts which seriously compromise the equality of women and single
mothers on social assistance.
63. First, enforcement of the Regulations perpetuates a degrading and
intrusive scrutiny of women's lives and relationships, continuing the
state's long history of monitoring poor women's relations with men as
a condition of receiving social assistance. This scrutiny is particularly
demeaning in view of the reverse onus which, by law, requires women
to provide evidence that their male co-resident is not their spouse;
and in view of the fact that even if a male co-resident is found not
to be a "spouse", the status of their relationship will be
reviewed annually.
Regulation 366,
as am., s. 1(3); Regulation 537, as am., s. 1(3)
Vander Plaats
Affidavit, Respondents' Record, Tab 10, Exhibit H at 253
64. For women and
single mothers on social assistance, deciding to reside with a man means
the automatic loss of independent support in her own right, regardless
of whether any financial support is in fact available, desired or forthcoming
from the man, and irrespective of whether the woman and her children
have an actual and continuing need for assistance. LEAF stresses that
unlike married spouses or common-law spouses under the Family Law Act,
a deemed "spouse" under the Regulations may owe the woman
no legal obligation of support.
65. The possibility
that a woman or single mother with a deemed "spouse" may apply
for general welfare benefits as part of a "couple" does not
mitigate the prejudicial effect of the definition of "spouse".
On the contrary, it compounds the experience of discrimination.
66. A woman can only apply for general welfare benefits if the male
"spouse" consents and both are eligible. The "couple's"
eligibility is then based on total household income, even if the man
in fact contributes no economic support to the woman and her children.
Where a "couple" qualifies for benefits, only one welfare
cheque is issued and, by general practice, it is issued to the male
"head of the household". Accordingly, even if a woman is able
to convince a male "spouse" to apply for general welfare benefits
with her, she receives no money in her own name. The financial security
of the mother and her children is placed entirely at the largesse of
a man who has no legal obligation to support either her or her children.
Regulation 537,
s. 4 (eligibility); s. 9(1), (3), Forms 1 and 3 (application for benefits)
Vander Plaats
Affidavit, Respondents' Record, Tab 10 at 164, 172
67. In abusive relationships,
men often exert control over women and prevent them from leaving the
relationship by restricting their access to money. By requiring single
mothers and women on social assistance to rely on their male co-resident
for support, the Regulations replicate the precise form of economic
insecurity that is particularly threatening to women who have experienced
abuse.
George Affidavit,
Respondents' Record, Tab 13 at 544-546, Exhibit C at 579
68. If the male
"spouse" is ineligible for assistance as an individual or
as part of a reconstituted family unit, the Regulations again force
the woman or single mother into the idealized and traditional female
role of depending on a man for support.
69. The requirement
that single parents be separated with "no prospect of reconciliation"
before they can receive benefits may force women to take conclusive
steps to end relationships which are beneficial to them and their children;
may foreclose reconciliation efforts within relationships that otherwise
may have been salvaged; may affect women's ability to maintain healthy
parenting relationships with the fathers of their children; and may
make women feel coerced to return to an ex-spouse.
Vander Plaats
Affidavit, Respondents' Record, Tab 10 at 168-171, also at 173
George Affidavit,
Respondents' Record, Tab 13 at 546-547
70. Finally, the
Regulations, in their specific and cumulative effects, force women to
make choices about how to manage new and existing personal relationships
in a way that responds to the exigencies of the social assistance regime
rather than their own and their children's own needs and priorities.
see: Ontario,
Report of the Social Assistance Review Committee: Transitions (1988)
at 20
71. The requirement
that a single mother demonstrate she has "no reasonable prospect
of reconciliation" with a spouse imposes added burdens on single
mothers who have left abusive relationships. Any steps towards separation
beyond those which are absolutely necessary (i.e. divorce proceedings
rather than separation) place victims of domestic violence at greater
and even life-threatening risk of retaliation from their spouse.
Vander Plaats
Affidavit, Respondents' Record, Tab 10 at 164-165, 167-168, 171
George Affidavit,
Respondents' Record, Tab 13 at 546-549
Carruthers, "Prosecuting
Women for Welfare Fraud", supra at 254-256
72. The fact that
individual applicants and recipients must complete a "Determination
of Spousal Status" questionnaire does not relieve against a finding
of discrimination. The Supreme Court of Canada has expressly ruled that
"individual testing, without more, does not negate discrimination.
The individual must be tested against a realistic standard". Moreover,
the mere fact that an individual's situation is considered "will
not necessarily defeat a s. 15(1) claim as the focus of the inquiry
must always remain upon the central question of whether, viewed from
the perspective of the claimant, the differential treatment imposed
by the legislation has the effect of violating human dignity."
B.C. v. B.C.G.S.E.U.,
[1999] 3 S.C.R. 3 at 44; also at 38, 40-44
M. v. H., supra
at para. 70
Law v. Canada,
supra at 538
Winko v. B.C.
(Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 at para. 90
73. LEAF submits
that the "individual testing" that occurs in enforcing the
Regulations is highly flawed and violates human dignity contrary to
the Charter for the following reasons:
(a) The "testing" is unrealistic and violates personal autonomy.
Individuals can be deemed "spouses" when they do not consider
themselves spouses, in the absence of a legal obligation of support
and in the absence of actual meaningful economic interdependence. Trivial
factors such as whether the individuals share a phone line or share
the use of a television are considered to determine if they are "spouses".
Government directives state that even if the individuals split all costs
50/50, this "does not in and of itself mean financial independence."
(b) Second, the
criteria that may identify a "spouse" are exceedingly vague.
The government's directions expressly state that "there is no correct
number of questions that must be answered in a certain way" to
establish a spousal relationship.
(c) Third, where
women must rebut a legal presumption that they have a spouse, this vague
"individual testing" never allows them to know the case they
must meet.
Vander Plaats
Affidavit, Respondents' Record, Tab 10 at 165-166, Exhibit H at 249,
259, 260
74. LEAF submits
that where the criteria for being a "spouse" are so nebulous,
where the caseworker's discretion to declare a spouse is so broad, and
where a reverse onus is in effect, discriminatory stereotypes and prejudices
will operate to fill the gaps. Such a flawed "test" fails
to mitigate the multiple and prejudicial impacts upon human dignity
detailed above.
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C.
The Regulations Violate Section 7 of the Charter
75. A s. 7 violation
is established where, first, there is a breach of one of the s. 7 interests
– life, liberty or security of the person; and second, the law
responsible for the breach violates the principles of fundamental justice.
LEAF submits that the Regulations violate the rights to liberty and
security of the person contrary to the principles of fundamental justice.
Reference re
ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123
at 1140
Blencoe v. British
Columbia (Human Rights Commission) (2000), 190 D.L.R. (4th) 513 (S.C.C.)
at 536-537; 2000 S.C.C. 44 at para. 47-48
1. Security
of the Person
76. Under "security
of the person", s. 7 protects an individual from physical interference
by the state and also protects an individual from "serious state-imposed
psychological stress" resulting from "state interference with
an individual interest of fundamental importance".
Blencoe v. B.C.,
supra at 540-541, para. 55-57
New Brunswick
(Minister of Health) v. G.(J.), [1999] 3 S.C.R. 46 at 76-78
77. Psychological
incursions will violate the right to security of the person where "the
state interferes in profoundly intimate and personal choices of an individual";
interferes with interests that are "basic to individual autonomy"
or "basic to individual dignity"; or interferes with an individual's
"ability to make essential life choices".
Blencoe v. B.C.,
supra at pp. 540-541, 550-552, para. 55-57, 81-86
78. The combination of stigmatization, loss of privacy, and disruption
of family or social life may cause serious psychological stress so as
to engage an individual's security of person. Whether state action causes
serious psychological stress must be assessed objectively.
G.(J.), supra
at 77-78
79. LEAF submits
that the impugned Regulations violate security of the person because:
(a) they subject
women on social assistance to highly invasive investigations into the
minutiae of all aspects (save sexual) of her personal relationships;
(b) they subject
women on social assistance to public humiliation and stigmatization
by making it a condition of her receiving assistance that the state
be permitted to question her landlord, neighbours, friends, co-workers
and others about her personal relationships and in so doing reveal to
these persons that the woman receives welfare, a fact that subjects
the woman to added stigma and prejudice;
(c) they are unduly
vague and so subject women to ongoing stress and uncertainty because
a woman never knows which interactions between herself and her co-resident,
or between her family and her co-resident, may "tip the balance"
such that the Director could find that she lives with a "spouse";
(d) they subject
women and single mothers escaping domestic violence to the risk of further
abuse and harassment by ex-partners by (i) terminating support in the
face of actual need, leaving women without the financial wherewithal
to reside apart from a violent partner; and (ii) by requiring them to
prove that there is "no reasonable prospect of reconciliation"
with a "spouse";
(e) their enforcement
can force a woman to choose to between continuing an emotionally supportive
relationship with a co-resident and losing benefits for the necessaries
of life.
Decision of SARB,
Appeal Book, Tab 4 at 145
Little Affidavit,
Respondents' Record, Tab 15 at 635-636
Vander Plats
Affidavit, Respondents' Record, Tab 10 at 164-165
George Affidavit,
Respondents' Record, Tab 13 at 544-546
Re Pitts (1985),
51 O.R. (2d) 302 (Div. Ct.) at 314
Irwin Toy v.
Québec (Attorney General), [1989] 1 S.C.R. 927 at 1003-1004
2. Liberty
80. LEAF submits
that the Regulations also violate women's right to liberty under s.7.
The Supreme Court of Canada has ruled that "the liberty interest
is rooted in fundamental notions of human dignity, personal autonomy,
privacy and choice in decisions regarding an individual's fundamental
being." The liberty interest also encompasses a "reasonable
expectation of privacy". Thus, the right to liberty is violated
when the state interferes with an individual's right to make inherently
personal and private choices. Within this sphere of inherently personal
choices – including an individual's right to choose with whom they
will associate and where they will live – the state cannot interfere
to "impose any one conception of the good life".
Blencoe v. B.C.,
supra at pp. 537-540, para. 49-54
R. v. Morgentaler,
[1988] 1 S.C.R. 30 at 166
B.(R.) v. Children's
Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 at 368
Godbout v. Longueuil
(City), [1997] 3 S.C.R. 844 at 893
81. LEAF submits
that the Regulations violate women's right to liberty because
(a) the investigations
into women's personal relationships that are triggered by the Regulations
violate women's reasonable expectation of privacy. While it might be
reasonable for the government to make inquiries into actual financial
support provided by one co-resident to another, and into the existence
of actual legal obligations of support, the government's inquiry into
all facets of a woman's or single mother's relationship with a male
co-resident is an unreasonable invasion of privacy.
Falkiner v. Ontario
(Ministry of Community and Social Services) (1996), 140 D.L.R. (4th)
115 (Ont. Div. Ct.) at 172, per Rosenberg J.
(b) by deeming
a male co-resident to be a "spouse", the Regulations violate
women's and single mother's autonomy to structure their personal relationships.
The Regulations force these women into a particular family form which
the state considers beneficial, namely a "traditional" nuclear
family with a male breadwinner and a female dependent raising children.
In addition, they assume and reinforce women's financial dependence
on men where there is or may be personal intimacy. In this way the Regulations
fail to respect the inherently personal and private choices women may
make in shaping their social and sexual lives and they limit women's
freedom to shape relationships with men who do not owe them or their
children a legal obligation of support.
3. Principals of Fundamental Justice
82. LEAF submits
that the above violations of liberty and security of the person are
not in accordance with the principles of fundamental justice. First,
a deprivation of an individual's s. 7 rights cannot be in accordance
with fundamental justice when effected through a law that is arbitrary
or unfair, or has the effect of infringing another Charter right, here
s. 15 of the Charter.
R. v. Jones,
[1986] 2 S.C.R. 284 at 303
Morgentaler,
supra, at 175
R. v. Mills,
[1999] 3 S.C.R. 668 at 714
83. While the state
has an interest in ensuring that welfare is paid to those in need, there
is no evidence that those whose benefits were terminated due to the
impugned definition of spouse were not in need and had access to other
sources of funds. By focusing on matters extraneous to whether actual
financial benefits and legal obligations of support flow to women and
single mothers from their male co-residents, the Regulations are arbitrary
and unfair. Rather than using criteria that are relevant to determine
actual need, the Regulations rely upon gender-related stereotypes to
determine entitlement to benefits, and so violate s. 15.
84. Second, LEAF
submits that the definition of "spouse" is overly vague and
is therefore unable to set a limit that is consistent with the principles
of fundamental justice. The criteria by which a "spouse" is
identified are too vague to give a woman subject to the Regulations
due notice of when her actions may lead the Director to find a spousal
relationship and are too vague to enable her to fairly meet the reverse
onus of disproving the existence of a "spouse".
R. v. Nova Scotia
Pharmaceutical Society, [1992] 2 S.C.R. 606 at 626-627, 635, 638,
639
85. Third, LEAF
submits that the violations of s. 7 do not fairly balance the interest
of the state and the individual. In effecting this balance, LEAF stresses
that international human rights instruments should be considered in
giving substance to s. 7's concept of "fundamental justice".
The Supreme Court of Canada has confirmed that "the Charter should
generally be presumed to provide protection at least as great as that
afforded by similar provisions in international human rights documents
which Canada has ratified."
Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at
para. 70
Ref. re: Public
Service Employee Relations Act, [1987] 1 S.C.R. 313 at 348-350
Re B.C. Motor
Vehicle Act, [1985] 2 S.C.R. 486 at 503, 512
86. Canada is a
signatory to a number of international human rights instruments that
recognize the right of every person and their family to have an adequate
standard of living, including adequate food, clothing and shelter. Given
the international recognition of such rights, LEAF submits that where
a person in real economic need is denied social assistance to support
such fundamental rights and that denial is made in violation of a s.
7 interest, it cannot be in accordance with the principles of fundamental
justice.
Universal Declaration
of Human Rights (1948), Article 25
International
Covenant on Economic, Social and Cultural Rights (1976), Article 11
Convention of
the Rights of the Child (1992), Article 27
United Nations
Economic and Social Council, "Concluding Observations of the
Committee on Economic, Social and Cultural Rights (Canada)",
Geneva, 10 June 1993, E/C.12/1993/5; (1993), 20 C.H.R.R. C/1 at C/7
D. The Violations are Not Demonstrably Justifiable
under Section 1
87. To establish
that a limit on constitutional rights and freedoms is reasonable and
demonstrably justified in a free and democratic society, (a) the legislation's
objective must be sufficiently pressing and substantial to warrant overriding
a constitutionally protected right; and (b) the means chosen to implement
the objective must be proportional to the objective. The means must
be "rationally connected" to the objective, they must impair
the constitutional right "as little as possible", and there
must be a proportionality between the effects of the impugned legislation
and the legislation's objective. The onus for justifying a limitation
on a Charter right rests on the party seeking to uphold that limitation.
Each part of the s. 1 test must be satisfied on the basis of cogent
and persuasive evidence.
R. v. Oakes,
[1986] 1 S.C.R. 103 at 136-139
88. Legislatures and courts have independent obligations to ensure that
laws conform with Charter principles. Judicial deference to the legislature
must not extend too far as the court cannot abdicate its role in determining
if government choices fall within the constitution's limits.
"To carry
judicial deference to the point of accepting Parliament's view simply
on the basis that the problem is serious and the solution difficult,
would be to diminish the role of the courts in the constitutional process
and to weaken the structure of rights upon which our constitution and
our nation is founded."
RJR-MacDonald
v. Canada, [1995] 3 S.C.R. 199 at 332
1. Objective
of the Impugned Amendment to the Regulations
89. LEAF rejects
the proposed objective that the Regulations were amended in order to
ensure equality for common law and married couples. Justification on
this basis wholly ignores the crux of the dispute which is that individuals,
who lack the actual support and legal obligations for support that common
law and married couples have, are nevertheless deemed to be spouses
and treated as such. On the contrary, LEAF submits that the overriding
objective of the Regulations is to reduce government spending by reducing
the number of women and single mothers on social assistance.
MCSS News Release
(23 August 1995)
Falkiner v. Attorney
General of Ontario (11 January 1995) (Ont. Div. Ct.), Respondents'
Record, Tab 4 at 28 [decision on motion for interim injunction]
90. To meet the
s.1 test, the governmental objective must be not merely legitimate,
or even merely "pressing and substantial"; it must be sufficiently
pressing and substantial to warrant overriding constitutionally protected
rights.
R. v. Oakes,
supra at 135-136, 138
R. v. Keegstra,
[1990] 3 S.C.R. 697 at 735-737, 755-757
Singh v. Canada,
[1985] 1 S.C.R. 177 at 218
R. v. Big M Drug
Mart, [1985] 1 S.C.R. 295 at 352
91. In this context
LEAF underscores that the Supreme Court of Canada has clearly and repeatedly
recognized that "budgetary considerations cannot be used to justify
a violation under s. 1." The guarantees of the Charter would be
illusory if they could be overridden simply in pursuit of administrative
and budgetary convenience. The lack of institutional resources can never
be used as a basis for rendering a Charter guarantee meaningless:
"[I]n a period
of economic restraint competition over scarce resources will almost
always be a factor in the government distribution of benefits. Moreover,
recognition of the constitutional rights and freedoms of some will in
such circumstances almost inevitably carry a price which must be borne
by others. Accordingly, to treat such price ... as a justification for
denying the constitutional rights of the [claimants] would completely
vitiate the purpose of entrenching rights and freedoms."
McKinney v. Guelph
University, [1990] 3 S.C.R. 229 at 403
Schachter v.
Canada, supra at 709
Singh v. Canada,
supra at 218-219
R. v. Askov,
[1990] 2 S.C.R. 1199 at 1213, 1224-1226, 1237
Adler v. Ontario,
[1996] 3 S.C.R. 609 at 675, per L'Heureux-Dubé J. (dissenting
but not with respect to this comment)
92. LEAF submits
that the government's cost cutting objective and deficit reduction policy
which underlie it are the product of and compound the social and economic
marginalization and political exclusion of women and single mothers
on social assistance. The objective is discriminatory in intent and
effect. It cannot be constitutionally sanctioned as sufficiently pressing
and substantial when the objective is achieved at the expense of the
most disadvantaged in society. Saving money in this way conflicts sharply
with the values and principles that the Supreme Court of Canada has
ruled are essential to a free and democratic society, including "respect
for the inherent dignity of the human person, commitment to social justice
and equality ... and faith in social and political institutions which
enhance the participation of individuals and groups in society".
R. v. Oakes,
supra at 136
2. The Impingement
on Charter Rights is not Proportional
93. LEAF submits
that the Regulations also fails the s. 1 proportionality test.
94. Rational connection:
LEAF submits that the Appellant has failed to demonstrate that to fulfill
its objective, it was necessary to impair the constitutional rights
at issue in the case. LEAF submits that the Regulations' definition
of spouse are "arbitrary" and "unfair", are based
on "irrational considerations" including prejudicial stereotypes
about women and single mothers on assistance, and are not "rationally
connected" to the objective of either the Family Benefits Act or
General Welfare Asistance Act which is to provide assistance to persons
in need.
95. Minimal impairment:
LEAF also submits that the Appellant has failed to demonstrate that
it has "minimally impaired" the Charter rights at issue. Options
less violative of Charter rights were available: the impugned Regulations
in fact repealed regulations that were less prejudicial to these rights.
Moreover, "individual testing" using the spousal questionnaire
fails to provide minimal impairment because the questionnaire's criteria
are exceedingly vague, subject to extremely broad and unstructured discretion,
and employed in the context of a reverse onus. Finally, the prejudicial
impacts upon the rights of the most disadvantaged, detailed above, cannot
be characterized as "minimal": in this case, the most disadvantaged
women are subject to extreme prejudice in relation to rights related
to basic survival.
96. Disproportionate
deleterious effects: Finally, LEAF submits that in light of the nature
of the rights at stake and the "severity of the deleterious effects"
of the Regulations, they cannot be "justified by the purpose [they
are] intended to serve." The Regulations severely compromise the
security and equality of one of the most disadvantaged groups in society
by denying them an entitlement to minimal social assistance in relation
to the necessaries of life. The values of a free and democratic society
cannot countenance such a deleterious burden on such fundamental needs
to justify a reduction in government spending.
R. v. Oakes,
supra at 139-140
97. For all these
reasons, LEAF submits that the Regulations violate both s. 15 and s.7
of the Charter; these violations are not justified under s.1.
PART V: ORDER REQUESTED
98. LEAF supports
the order for relief as requested by the Respondents.
ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 22nd DAY OF DECEMBER
2000.
_________________________________
Fay C. Faraday
Kerri Froc
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