F. Pearl Eliadis, The J.W. McConnell Family Foundation1
Pearl Eliadis is Chief Knowledge Officer at The J.W. McConnell Family Foundation. Much of the work underlying this article was done when Ms Eliadis was a Senior Research Director with the Policy Research Initiative.
Acontemporary view of policy development posits that legal policy perspectives should function as policy drivers rather than as policy outcomes (Eliadis, 2004). In Canada, this is not generally done, because the norms that underpin horizontal policy initiatives are frequently implicit. Many of these norms were, however, set in a different era and are being overtaken by domestic and international law. That is, the legal policy approach to norms shifts over time, and thus needs to be part of an ongoing process of analysis and frontloading into government policy making at the centre. This article adopts this approach and applies it to policy issues related to poverty and exclusion.
In early 2002, the Quebec government introduced Bill 112, An act to combat poverty and social exclusion.2 Bill 112 was the result of eight years of social activism following the Bread and Roses protest march of the Quebec Federation of Women in 1995, and it brings together several anti-poverty initiatives in a single integrated legislative framework.
No federal or provincial jurisdiction in Canada has ever targeted poverty directly or comprehensively in legislation. Rather, the traditional approach has been to use distinct initiatives aimed at the component parts of poverty – temporary low income, lack of housing, and job skills – to raise income at a point in time. Bill 112 sparked an inquiry into Canada’s approach to poverty and gave rise to the research project that is the source of this article. A joint initiative of the Policy Research Initiative and Justice Canada (Quebec Regional Office), the project investigated the following questions.
Does it matter that poverty is addressed in a more integrated way?
Are rights relevant to povertyoriented policy?
Is there a policy-relevant link between exclusion and poverty?
What does legal policy offer to the equation?
The first part of this article addresses these questions through guidance from the courts and international law as a support for policy makers. The second part offers practical suggestions for designing policy from the poverty-exclusion nexus. This includes recommendations for policy makers to integrate legal policy more explicitly in the policy development process, and to ensure policy development in this priority area is responsive to, and informed by, the needs of persons living in poverty.
A Shifting Landscape
Poverty is generally described in terms of its primary feature, namely inadequate income. However, academics and other professionals, both in Canada and abroad, are recasting poverty in terms of capabilities and power as much as income or financial resources.
Bill 112 defines poverty as follows.
2. [Definition]: For the purposes of this Act, “poverty” means the condition of a human being who is deprived of the resources, means, choices and power necessary to acquire and maintain economic self-sufficiency and favour active inclusion in Quebec society.
The United Nations and its agencies approach poverty from a more integrative perspective, expressed in terms of social features as well as in economic terms.
[A] human condition characterized by the sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living and other civil, cultural, economic, political and social rights (UNOHCR, 2003, emphasis added).
Fundamental changes are occurring to the definition of poverty itself. It is increasingly understood that it is closely bound up with exclusion, and these social aspects are fundamental to understanding both the concept and its real-life impacts on people. A more integrated approach also subsumes many other indicators – illiteracy, increased ill health, gender inequality, environmental degradation, and racialized impacts – all of which can be aspects of being poor.
Benchmarking Canada’s Policy
How does Canada’s policy framework on poverty and exclusion fare when assessed against the evolving conceptual basis of poverty discussed in the preceding section?
The first observation is that there is no federal-level, comprehensive policy framework to address poverty and exclusion. Instead, the goals are typically seen as raising people above a low-income cut-off line to address needs at times when people are without sufficient earnings. In terms of actual results, these policies and programs, operating through various levels of government, have been largely successful, and form a strong social safety net. That said, there are concerns for the future.
When the Canada Health and Social Transfer (CHST)3 was introduced in 1996, the federal government’s contributions decreased and were substantially lower than they would have been under the previous system. These reductions were passed on to the provinces and then to citizens through tighter eligibility criteria and a range of programs, such as work-forwelfare schemes.4 Canada does not fare as well as many OECD countries, and the economic well-being of certain vulnerable groups, such as recent immigrants, has slipped (CCSD, 2004). Recent community-level studies show that low-income, working-age adults are falling behind in income security and net wealth, and many cannot find stable employment or accumulate enough assets to stay off welfare. In addition, many Canadians – in the general public and among those in receipt of social assistance – are dissatisfied with the income security system (St. Christopher House, 2004).
How poverty is perceived and sustains itself is viewed as a function of social phenomena, such as a lack of power and choice, and the vicious circle between lack of income and other complex social indicators. One of these is exclusion.
Exclusion from What? The Equality Rights Test
There is no explicit right of freedom from poverty in Canada. But when one looks at poverty from a broader definition, there is a group of associated rights that, when combined with a test of membership and exclusion from Canadian society, can make some claims justiciable before the courts on the basis of protected rights. Persons receiving social assistance, for instance – a large group of persons living in poverty in Canada – are now entitled to section 15 Charter equality rights (regardless of province of residence).5
In the course of research for this paper, decisions of the Supreme Court of Canada and courts of appeal that dealt with equality rights were examined to assess whether judicial consideration was given to the relationship between exclusion and equality. On analysis, 10 of these cases made explicit reference to exclusion as a marker of equality rights, and half of those occurred within the context of social assistance or social security programs. (See the accompanying textbox.)
The role exclusion plays in equality rights thus appears reasonably well established in Canadian case law under section 15 of the Charter. The link to poverty is only one step removed. A Canadian example of how the nexus between poverty and exclusion played out in an equality rights case under the Charter is illuminating. The Alberta Court of Appeal struck down a social assistance scheme for poor, widowed, older women in Gwinner v. Alberta (Human Resources and Employment). The Court held that the scheme failed to consider the assets of beneficiaries when assessing their need for the program. The program was alleged to be both over-inclusive, in that it benefited women who were asset rich, and under-inclusive, because it excluded women who are similarly situated, that is, who are older and have lost the financial support of a former spouse. The scheme was struck down, because it was considered by the Court to infringe constitutional equality rights under section 15 of the Charter.
While policy makers do not have to demonstrate a precise fit between a program and the targeted group, policy design does have to be rational and evidence-based. Distinctions must not violate human dignity. In a case called Falkiner, Ontario courts struck down a “spouse in the house” regulation that focused on income as the marker of poverty. Policy makers believed that the real income of welfare recipients was kept artificially low if there was cohabitation with another person, not technically a spouse, and thus whose income was not taken into account. In these circumstances, the other person was deemed to be a spouse. This assumption may or may not have been accurate, but by failing to consider the impact of the regulation on the capabilities and life choices of persons on social assistance (especially single women, according to the evidence in the case), the government had effectively diminished their capacity to enter into stable relationships, thus creating a form of exclusion that existed for no one else in society. (Falkiner has been appealed to the Supreme Court of Canada.)
Designing Policy from the Poverty–Exclusion Nexus
The focus of this article is the intersection of the concepts of poverty and exclusion, and the implications for policy makers of that intersection. While income-based measures remain important, they should be placed in an overall context or framework based on a broader, context-sensitive definition of poverty. The first specific strategy is against poverty.
A National Strategy Against Poverty
There is no comprehensive policy framework to address poverty and exclusion at the federal level. This is particularly challenging in Canada, because of the federal structure. As a result of the jurisdictional complexity of poverty issues across federal and provincial lines, a comprehensive strategy against poverty is more likely to succeed if located within the framework of co-operative federalism and section 36 of the Constitution Act.6 The federal-provincial Social Union Framework Agreement provides a good model, despite the perception that it may not have lived up to its potential in the past (especially in light of the recent creation of the Canada Social Transfer).
In developing a national strategy, policy makers need to consider the broader impacts of interventions on the life choices and circumstances of poor people, as well as the possibility that policy measures (especially those that remove or restrict benefits) may create unfair exclusions, as occurred in the Falkiner case. Policy-relevant research on poverty targeted to vulnerable groups experiencing exclusion therefore should also be sensitive to the interactions of interventions (stacking), and to wider indicators of actual resources (protecting asset accumulation). More proactive measures would include ensuring better financial tools appropriate to low-income persons and looking at access to certain health benefits (e.g., drug and dental) for persons who are working poor (St. Christopher House, 2004).
Integration of Legal Norms
As noted above, the legal policy framework changes over time. As well, the concepts of exclusion and poverty are being understood in tandem, and together are being seen to invoke equality rights. These developments are critical for horizontal policy making, but have not been generally or explicitly accepted or integrated in federal policy-making circles. This is the case even though aspects of the capabilities framework may be implicit in certain sectors of policy research in law-based departments such as Justice Canada.
Consideration of an updated normative framework, particularly one that incorporates the legal policy side of the equation, should be integrated very early in the process, ensuring that appropriate, policy-relevant research is informed by legal developments. It should be emphasized that this consideration would not necessarily be in the form of a legal opinion requested of a departmental legal services branch. Nor would it replace the legal assessment of Charter compliance that occurs at the back end of the policy process. Rather, it would be a front-end integration of legal policy considerations.
Overview of Relevant Case Law
In Corbière v. Canada (Minister of Indian and Northern Affairs),  2 S.C.R. 203, the Supreme Court of Canada considered the exclusion of off-reserve Aboriginal band members from band governance.
In Egan v. Canada,  2 S.C.R. 513, the Supreme Court of Canada considered the exclusion of persons from old age social security legislation because of sexual orientation.
In Falkiner v. Ontario (Ministry of Community and Social Services, Income Maintenance Branch) (2000), 49 O.R. (3d) 564 (C.A.). [Leave to appeal to S.C.C. granted  S.C.C.A. 297], the Ontario Court of Appeal considered the constitutionality of a social assistance regulation that limited access to benefits when a person cohabited with another person of the opposite sex.
In Gosselin v. Quebec (Attorney General),  4 S.C.R. 429, the court considered the exclusion from supplementary payments under a welfare scheme on the basis of age.
In Gwinner v. Alberta (Human Resources and Employment)  AJ 1045, the Alberta Court of Appeal considered the exclusion of divorced and separated women from a social assistance scheme designed for older widows.
In Granovsky v. Canada (Minister of Employment and Immigration),  1 S.C.R. 703, 2000 SCC 28, the court stated that “exclusion and marginalization (of persons with disabilities) are generally not created by the individual with disabilities but are created by the economic and social environment and, unfortunately, by the state itself.”
In Halpern v. Canada (2003), 225 D.L.R. (4th) 529 (Ont. C.A.), the Court held that because same-sex couples are excluded from the institution of marriage, this exclusion perpetuates the view that same-sex relationships are less worthy of recognition than opposite-sex relationships.
In Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497, the Supreme Court of Canada considered the exclusion of a younger person from the Canada Pension Plan.
M. v. H.,  2 S.C.R. 3, dealt with the exclusion of gays and lesbians from the operation of family law legislation.
In Polewsky v. Home Hardware Stores Limited (2003), 60 O.R. (3rd) 600 (Div. Court), the court considered the legality of the fee to file a claim in Small Claims court where the applicant was poor.
In Vancouver Society of Immigrant and Visible Minority Women v. M.N.R.,  1 S.C.R. 10, the Court examined whether the denial of charitable status to a communitybased organization constituted “exclusion from membership and participation in Canadian society.”
In Vriend v. Alberta,  1 S.C.R. 493,  S.C.J. No. 29, the Court considered the exclusion of gays and lesbians from provincial human rights law protections in Alberta.
Charter and Human Rights Norms
Front-loading legal norms is not as wide ranging or onerous an endeavour as might appear at first glance. The number of grounds in the Charter and in human rights laws is finite (at least at any given point in time), and the known or likely consequences of a policy can be taken into consideration as a function of policy objectives.
At the domestic level, the courts have rendered several decisions that have substantively changed our understanding of equality and its relationship to exclusion and the rights of persons in vulnerable or at-risk groups. When people are excluded from government programs in a manner that constitutes exclusion from membership and participation in Canadian society, courts are willing to wade into social policy areas to redress the balance using equality rights. The research link between who is identified as vulnerable and which groups are considered to be discrete and insular minorities for the purposes of section 15 of the Charter are thus closely connected, and this includes groups of persons living in poverty.7
International Law and Domestic Law: Bridging the Gap
As part of a national strategy to address poverty, Canadian policy makers need to deal with the integration of international human rights standards and domestic law and policy. A proposed approach uses an international law filter. When policy proposals are being researched in their early stages, researchers would, as a matter of course, review applicable international treaties and covenants to which Canada is a party, assessing the compliance of the proposal with international law. This process would apply to policy proposals being implemented through legislative instruments (as is now the case) and to other kinds of policy instruments.
In its guidelines to the federal public service, the Privy Council Office directs policy makers to ensure conformity with international obligations in the law-making process, but as regards other instruments (e.g., policies, guidelines, partnerships, and negotiated rule making), policy makers are simply encouraged to consider the effects of international obligations (Canada, PCO, 2001). Given the burgeoning number of new instruments, and the active encouragement by the PCO and other central agencies to use law making as an instrument of last resort, a change to these guidelines is especially appropriate.
The conceptual and normative foundations of poverty and exclusion have shifted considerably over the past two decades. These changes have not been fully integrated into social policy development across the federal government’s policy research agendas.
It may be difficult to see the need for reorientation of policy approaches in Canada because, for the most part, current approaches seem to work well in terms of broad averages. In comparison to other countries whose poverty levels are much worse, there seems to be little cause for concern. If a law or policy violates a person’s rights or freedoms, there are legal recourses. Further, international instruments that address human rights and freedoms may be perceived by some to be directed at developing countries where the poverty situation is much worse. While Canada undoubtedly remains one of the best countries in the world with respect to addressing poverty, none of these arguments is especially persuasive.
First, parallel research in this PRI project shows that the changing fabric of our society requires new approaches to address new problems and new aspects of traditional problems. A related legal development is the trend to viewing poverty in relation to exclusion, in particular using a judicial test of exclusion from membership and participation in Canadian society, which has evolved as a litmus test for determining whether government policies violate equality rights. The exclusion test ensures that government policies respect the rule of law, are consistent with the values expressed in the Charter, and reflect the values contained in international instruments Canada has ratified. Much of the case law on this point has been rendered over the past decade.
Second, the courts should be a venue of last resort. Compliance with the rule of law and sensitivity to emerging norms is as much the business of the policy maker as it is of the judiciary. The issue of accountability for compliance with international norms is, in particular, a matter of concern. If international instruments are not intended for Canada then, of course, Canada should not sign them. As a matter of principle, the courts have repeatedly stated that adherence to international instruments signals Canada’s intent to comply. As a matter of practice, adherence to standards that Canada has promoted and adopted should be a basic feature of the development of policy across legislative and non-legislative instruments.
Statues and Regulations
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 (U.K.), 1982, c. 11.
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.
Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3, reprinted in R.S.C. 1985, App. II, No. 5.
An Act to combat poverty and social exclusion, S.Q. c. 61.
Authors and Reports Cited
Canada, PCO (Privy Council Office). 2001. Chapter 1.1, “Choosing the Right Tools to Accomplish Policy Objectives.” Guide to Making Federal Acts and Regulations. 2nd ed. <http://www.pco-bcp.gc.ca/default.asp?page=publications&Language=E&doc=legislation/lmgcatalog_e.htm>.
CCSD (Canadian Council on Social Development). 2004. “What Kind of Canada? A Call for a National Debate on the Canada Social Transfer.” <http://www.ccsd.ca/pr/2004/social_transfer/st.htm>. Accessed April 28, 2004.
Eliadis, F. Pearl, 2004. “Normative Approaches to Policy: Integrating Legal Policy Perspectives.” Horizons 6, no. 4. Ottawa: Policy Research Initiative.
Quebec, Commission des droits de la personne et des droits de la jeunesse. 2002. Mémoire à la Commission des affaires sociales de l’Assemblé nationale : Projet de loi No. 112 – Loi Visant à Lutter Contre la Pauvreté et L`Exclusion Sociale, September. <http://www.cdpdj.qc.ca/fr/publications/liste.asp?Sujet=48&noeud1=1&noeud2=6&cle=0>.
SRDC (Social Research and Demonstration Corporation). 2002. Making Work Pay: Final Report on the Self-Sufficiency Project for Long- Term Welfare Recipients. Ottawa, July.
St. Christopher House. 2004. “What Works When Income Doesn’t? Income Strategies for Working-Age Adults.” Project report, Spring. Unpublished; copy on file with author.
UNDP (United Nations Development Programme). 2002. Human Development Report 2002. <http://undp.org/annualreports/2002/english>.
———. 2003. Human Development Report, 2003. <http://www.undp.org/annualreports/2003/english>.
UNOHCHR (United Nations, Office of the High Commissioner for Human Rights). 2002. Draft Guidelines: A Human Rights Approach to Poverty Reduction Strategies. <http://www.eldis.org/static/DOC10335.htm>.
P. Eliadis would like to acknowledge the contribution of Leah Spicer, a law student at the University of Windsor, who assisted with the larger work from which this article was drawn. The views expressed herein are those of the author.
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
36. (1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to
promoting equal opportunities for the well-being of Canadians;
furthering economic development to reduce disparity in opportunities; and
providing essential public services of reasonable quality to all Canadians. (2) Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.
Recent case law suggests that the principal bar to a finding of poverty as an analogous ground under section 15 of the Charter may be more the result of the fact that no one has brought a convincing factual and historical record to court, as opposed to an inherent prohibition against poverty as ground for equality rights (see the recent decision from Ontario in the Polewsky decision).