Gosselin v. Québec (Attorney General)

Louise Gosselin was born in 1959. She has led a difficult life, complicated by a struggle with psychological problems and drug and alcohol addictions. From time to time she has tried to work, attempting jobs such as cook, waitress, salesperson, and nurse’s assistant, among many. But work would wear her down or cause her stress, and she would quit. For most of her adult life, Ms. Gosselin has received social assistance.

In 1984, the Quebec government altered its existing social assistance scheme in an effort to encourage young people to get job training and join the labour force. Under the scheme, which has since been repealed, the base amount payable to welfare recipients under 30 was lower than the base amount payable to those 30 and over. The new feature was that, to receive an amount comparable to that received by older people, recipients under 30 had to participate in a designated work activity or education program.

Ms. Gosselin contends that the lower base amount payable to people under 30 violates: (1) s. 15(1) of the Canadian Charter of Rights and Freedoms (“Canadian Charter ”), which guarantees equal treatment without discrimination based on grounds including age; (2) s. 7 of the Canadian Charter , which prevents the government from depriving individuals of liberty and security except in accordance with the principles of fundamental justice; and (3) s. 45 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12 (“Quebec Charter”). She further argues that neither of the alleged Canadian Charter violations can be demonstrably justified under s. 1.

On this basis, Ms. Gosselin asks this Court to order the Quebec government to pay the difference between the lower and the higher base amounts to all the people who: (1) lived in Quebec and were between the ages of 18 and 30 at any time from 1985 to 1989; (2) received the lower base amount payable to those under 30; and (3) did not participate in the government programs, for whatever reason. On her submissions, this would mean ordering the government to pay almost $389 million in benefits plus the interest accrued since 1985. Ms. Gosselin claims this remedy on behalf of over 75 000 unnamed class members, none of whom came forward in support of her claim.

In my view, the evidence fails to support Ms. Gosselin’s claim on any of the asserted grounds. Accordingly, I would dismiss the appeal.

In 1984, in the face of alarming and growing unemployment among young adults, the Quebec legislature made substantial amendments to the Social Aid Act, R.S.Q., c. A-16, creating a new scheme — the scheme at issue in this litigation. Section 29(a) of the Regulation respecting social aid, R.R.Q. 1981, c. A-16, r. 1, made under the Act continued to cap the base amount of welfare payable to those under 30 at roughly one third of the base amount payable to those 30 and over. However, the 1984 scheme for the first time made it possible for people under 30 to increase their welfare payments, over and above the basic entitlement, to the same (or nearly the same) level as those in the 30-and-over group.

The new scheme was based on the philosophy that the most effective way to encourage and enable young people to join the workforce was to make increased benefits conditional on participation in one of three programs: On-the-job Training, Community Work, or Remedial Education. Participating in either On-the-job Training or Community Work boosted the welfare payment to a person under 30 up to the base amount for those 30 and over; participating in Remedial Education brought an under-30 within $100 of the 30-and-over base amount. The 30-and-over base amount still represented only 55 percent of the poverty level for a single person. For example, in 1987, non-participating under-30s were entitled to $170 per month, compared to $466 per month for welfare recipients 30 and over. According to Statistics Canada, the poverty level for a single person living in a large metropolitan area was $914 per month in 1987. Long-term dependence on welfare was neither socially desirable nor, realistically speaking, economically feasible. The Quebec scheme was designed to encourage under-30s to get training or basic education, helping them to find permanent employment and avoid developing a habit of relying on social assistance during these formative years.

The government initially made available 30 000 places in the three training programs. The record indicates that the percentage of eligible under-30s who actually participated in the programs averaged around one-third, but it does not explain this participation rate. Although Ms. Gosselin filed a class action on behalf of over 75 000 individuals, she provided no direct evidence of any other young person’s experience with the government programs. She alone provided first-hand evidence and testimony as a class member in this case, and she in fact participated in each of the Community Work, Remedial Education and On-the-job Training Programs at various times. She ended up dropping out of virtually every program she started, apparently because of her own personal problems and personality traits. The testimony from one social worker, particularly as his clinic was attached to a psychiatric hospital and therefore received a disproportionate number of welfare recipients who also had serious psychological problems, does not give us a better or more accurate picture of the situation of the other class members, or of the relationship between Ms. Gosselin’s personal difficulties and the structure of the welfare program.

Ms. Gosselin challenged the 1984 social assistance scheme on behalf of all welfare recipients under 30 subject to the differential regime from 1985 to 1989 (when, for reasons unrelated to this litigation, it was replaced by legislation that does not make age-based distinctions). As indicated above, she argued that Quebec’s social assistance scheme violates s. 7 and s. 15(1) of the Canadian Charter , and s. 45 of the Quebec Charter. She asks the Court to declare s. 29(a) of the Regulation — which provided a lesser base welfare entitlement to people under 30 — to have been invalid from 1987 (when it lost the protection of the notwithstanding clause) to 1989, and to order the government of Quebec to reimburse all affected welfare recipients for the difference between what they actually received and what they would have received had they been 30 years of age or over, for a total of roughly $389 million, plus interest.

The trial judge, Reeves J., held that the claim was not supported by the evidence and that the distinction made by Quebec’s social assistance regime was not discriminatory under s. 15(1) of the Canadian Charter because it was based on genuine considerations that corresponded to relevant characteristics of the under-30 age group, including the importance of providing under-30s with incentives to get training and work experience in the face of widespread youth unemployment: [1992] R.J.Q. 1647. He dismissed Ms. Gosselin’s s. 7 claim, holding that s. 7’s protection of security of the person does not extend to economic security and does not create a constitutional right to be free from poverty. He also rejected the claim under s. 45 of the Quebec Charter on the ground that s. 45 does not create an entitlement to a particular level of state assistance.

All three judges of the Quebec Court of Appeal agreed that s. 7 of the Canadian Charter was not engaged in this case: [1999] R.J.Q. 1033. Mailhot J.A. found this case indistinguishable from Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, and dismissed the s. 15(1) claim accordingly. Baudouin J.A. found that Quebec’s social assistance scheme breached s. 15(1), but he found the breach justified in a free and democratic society under s. 1 of the Canadian Charter . Robert J.A. would have found that the social assistance scheme breached s. 15(1) of the Canadian Charter and was not saved by s. 1, but he would have dismissed the claim for damages as inappropriate. On s. 45 of the Quebec Charter, only Robert J.A. found a breach, for which he held damages unavailable.

This case raises the important question of how to determine when the differential provision of government benefits crosses the line that divides appropriate tailoring in light of different groups’ circumstances, and discrimination. To what extent does the Canadian Charter restrict a government’s discretion to extend different kinds of help, and different levels of financial assistance, to different groups of welfare recipients? How much evidence is required to compel a government to retroactively reimburse tens of thousands of people for alleged shortfalls in their welfare payments, arising from a conditional benefits scheme? These issues have implications for the range of options available to governments throughout Canada in tailoring welfare programs to address the particular needs and circumstances of individuals requiring social assistance.

The specific legal issues are found in the stated constitutional questions:

1. Did s. 29(a) of the Regulation respecting social aid, R.R.Q. 1981, c. A-16, r. 1, adopted under the Social Aid Act, R.S.Q., c. A-16, infringe s. 15(1) of the Canadian Charter of Rights and Freedoms on the ground that it established a discriminatory distinction based on age with respect to individuals, capable of working, aged 18 to 30 years?

2. If so, is the infringement justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ?

3. Did s. 29(a) of the Regulation respecting social aid, R.R.Q. 1981, c. A-16, r. 1, adopted under the Social Aid Act, R.S.Q., c. A-16, infringe s. 7 of the Canadian Charter of Rights and Freedoms on the ground that it deprived those to whom it applied of their right to security of the person contrary to the principles of fundamental justice?

4. If so, is the infringement justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ?

A further issue is whether s. 29(a) of the Regulation violates s. 45 of the Quebec Charter, and if so, whether a remedy is available.

A preliminary issue arises in connection with s. 33 of the Canadian Charter — the “notwithstanding clause”. By virtue of An Act respecting the Constitution Act, 1982, R.S.Q., c. L-4.2, the Quebec legislature withdrew all Quebec laws from the Canadian Charter regime for five years from their inception. This means that the Act is immune from Canadian Charter scrutiny from June 23, 1982 to June 23, 1987, and the programs part of the scheme is immune from April 4, 1984 to April 4, 1989 (see An Act to amend the Social Aid Act, S.Q. 1984, c. 5, ss. 4 and 5). It could be argued, therefore, that the scheme is protected from Canadian Charter scrutiny on s. 7 or s. 15(1) grounds for the whole period except for the four months from April 4, 1989 to August 1, 1989. This raises the further question of whether evidence on the legislation’s impact outside the four-month period subject to Canadian Charter scrutiny can be used to generate conclusions about compliance with the Canadian Charter within the four-month period. In view of my conclusion that the program is constitutional in any event, I need not resolve these issues.

Section 15(1) of the Canadian Charter provides that “[e]very 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.”

To establish a violation of s. 15(1), the claimant must establish on a civil standard of proof that: (1) the law imposes differential treatment between the claimant and others, in purpose or effect; (2) one or more enumerated or analogous grounds are the basis for the differential treatment; and (3) the law in question has a purpose or effect that is discriminatory in the sense that it denies human dignity or treats people as less worthy on one of the enumerated or analogous grounds. In this case, the first two elements are clear, and the analysis focuses on whether the scheme was discriminatory.

My colleague Bastarache J. and I agree that Law remains the governing standard. We agree that the s. 15(1) test involves a contextual inquiry to determine whether a challenged distinction, viewed from the perspective of a reasonable person in the claimant’s circumstances, violates that person’s dignity and fails to respect her as a full and equal member of society. We agree that a distinction made on an enumerated or analogous ground violates essential human dignity to the extent that it reflects or promotes the view that the individuals affected are less deserving of concern, respect, and consideration than others: Law, supra, at para. 42; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 171, per McIntyre J. We agree that a claimant bears the burden under s. 15(1) of showing on a civil standard of proof that a challenged distinction is discriminatory, in the sense that it harms her dignity and fails to respect her as a full and equal member of society. We agree that, if a claimant meets this burden, the burden shifts to the government to justify the distinction under s. 1.

Where we disagree is on whether the claimant in this particular case has met her burden of proof. We both examine the contextual factors enunciated in Law, but we reach different conclusions with respect to the adequacy of the factual record, the nature of the inferences we can draw from that record, and the deference owed to the findings of the trial judge. Whatever sympathy Ms. Gosselin’s economic circumstances might provoke, I simply cannot find that she has met her burden of proof in showing that the Quebec government discriminated against her based on her age. In my respectful view, she has not demonstrated that the government treated her as less worthy than older welfare recipients, simply because it conditioned increased payments on her participation in programs designed specifically to integrate her into the workforce and to promote her long-term self-sufficiency.

We must approach the question of whether the scheme was discriminatory in light of the purpose of the s. 15 equality guarantee. That purpose is to ensure that governments respect the innate and equal dignity of every individual without discrimination on the basis of the listed or analogous grounds: Law, supra, at para. 51. The aspect of human dignity targeted by s. 15(1) is the right of each person to participate fully in society and to be treated as an equal member, regardless of irrelevant personal characteristics, or characteristics attributed to the individual based on his or her membership in a particular group without regard to the individual’s actual circumstances. As Iacobucci J. put it in Law (at para. 51):

[T]he purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or 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.

Discrimination occurs when people are marginalized or treated as less worthy on the basis of irrelevant personal characteristics, without regard to their actual circumstances. The enumerated and analogous grounds of s. 15 serve as “legislative markers of suspect grounds associated with stereotypical, discriminatory decision making”; differential treatment based on these grounds invites judicial scrutiny: Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, at para. 7, per McLachlin and Bastarache JJ. However, not every adverse distinction made on the basis of an enumerated or analogous ground constitutes discrimination: see Corbiere. Some group-based distinctions may be appropriate or indeed promote substantive equality, as envisaged in s. 15(2): see Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37.

Section 15(1) seeks to ensure that all are treated as equally worthy of full participation in Canadian society, regardless of irrelevant personal characteristics or membership in groups defined by the enumerated and analogous grounds: see D. Greschner, “The Purpose of Canadian Equality Rights” (2002), 6 Rev. Const. Stud. 291. The focus is not on whether or not the claimant is subject to a formal distinction, but on whether the claimant has in substance been treated as less worthy than others, whether or not a formal distinction exists: Andrews, supra, at pp. 164-69, per McIntyre J.; Law, supra, at para. 25; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3.

Section 15’s purpose of protecting equal membership and full participation in Canadian society runs like a leitmotif through our s. 15 jurisprudence. Corbiere addressed the participation of off-reserve Aboriginal band members in band governance. Eaton and Eldridge spoke of the harms of excluding disabled individuals from the larger society: Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624. Vriend dealt with a legislature’s exclusion of the ground of sexual orientation from a human rights statute protecting individuals from discrimination based on a range of other grounds: Vriend v. Alberta, [1998] 1 S.C.R. 493. Granovsky resonated with the language of belonging: “Exclusion and marginalization are generally not created by the individual with disabilities but are created by the economic and social environment and, unfortunately, by the state itself”: Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28, at para. 30.

To determine whether a distinction made on an enumerated or analogous ground is discriminatory, we must examine its context. As Binnie J. stated in Granovsky, supra, at para. 59, citing U.S. Supreme Court Marshall J.’s partial dissent in Cleburne v. Cleburne Living Centre, Inc., 473 U.S. 432 (1985): “[a] sign that says ‘men only’ looks very different on a bathroom door than a courthouse door”. In each case, we must ask whether the distinction, viewed in context, treats the subject as less worthy, less imbued with human dignity, on the basis of an enumerated or analogous ground.

The need for a contextual inquiry to establish whether a distinction conflicts with s. 15(1)’s purpose is the central lesson of Law. The issue, as my colleagues and I all agree, is whether “a reasonable person in circumstances similar to those of the claimant would find that the legislation which imposes differential treatment has the effect of demeaning his or her dignity” having regard to the individual’s or group’s traits, history, and circumstances: Law, at para. 60, followed in Lovelace, supra, at para. 55. As an aid to determining whether a distinction has a discriminatory purpose or effect under part (3) of this test, Law proposes an investigation of four contextual factors relating to the challenged distinction: (1) pre-existing disadvantage; (2) correspondence between the ground of distinction and the actual needs and circumstances of the affected group; (3) the ameliorative purpose or effect of the impugned measure for a more disadvantaged group; and (4) the nature and scope of the interests affected.

Both the purpose of the scheme and its effect must be considered in making this evaluation. I agree with Bastarache J. that the effects of the scheme are critical. However, under Law, the context of a given legislative scheme also includes its purpose. Simply put, it makes sense to consider what the legislator intended in determining whether the scheme denies human dignity. Intent, like the other contextual factors, is not determinative. Our case law has established that even a well-intentioned or facially neutral scheme can have the effect of discriminating: BCGSEU, supra. The scheme here is not facially neutral: we are dealing with an explicit distinction. The purpose of the distinction, in the context of the overall legislative scheme, is a factor that a reasonable person in the position of the complainant would take into account in determining whether the legislator was treating him or her as less worthy and less deserving of concern, respect and consideration than others.

I emphasize that a beneficent purpose will not shield an otherwise discriminatory distinction from judicial scrutiny under s. 15(1). Legislative purpose is relevant only insofar as it relates to whether or not a reasonable person in the claimant’s position would feel that a challenged distinction harmed her dignity. As a matter of common sense, if a law is designed to promote the claimant’s long-term autonomy and self-sufficiency, a reasonable person in the claimant’s position would be less likely to view it as an assault on her inherent human dignity. This does not mean that one must uncritically accept the legislature’s stated purpose at face value: a reasonable person in the claimant’s position would not accept the exclusion of women from the workplace based merely on the legislature’s assertion that this is for women’s “own good”. However, where the legislature is responding to certain concerns, and where those concerns appear to be well founded, it is legitimate to consider the legislature’s purpose as part of the overall contextual evaluation of a challenged distinction from the claimant’s perspective, as called for in Law. This is reflected in the questions Iacobucci J. asked in Law: “Do the impugned CPP provisions, in purpose or effect, violate essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice?”; “Does the law, in purpose or effect, perpetuate the view that people under 45 are less capable or less worthy of recognition or value as human beings or as members of Canadian society?” (para. 99 (emphasis added)).

2. Applying the Test

The Regulation at issue made a distinction on the basis of an enumerated ground, age. People under 30 were subject to a different welfare regime than people 30 and over. The question is whether this distinction in purpose or effect resulted in substantive inequality contrary to s. 15(1)’s purpose of ensuring that governments treat all individuals as equally worthy of concern, respect, and consideration. More precisely, the question is whether a reasonable person in Ms. Gosselin’s position would, having regard to all the circumstances and the context of the legislation, conclude that the Regulation in purpose or effect treated welfare recipients under 30 as less worthy of respect than those 30 and over, marginalizing them on the basis of their youth.

To answer this question, we must consider the four factors set out in Law. None of these factors is a prerequisite for finding discrimination, and not all factors will apply in every case. The list of factors is neither absolute nor exhaustive. In addition, the factors may overlap, since they are all designed to illuminate the relevant contextual considerations surrounding a challenged distinction. Nonetheless, the four factors provide a useful guide to evaluating an allegation of discrimination, and I will examine each of them in turn.

A key marker of discrimination and denial of human dignity under s. 15(1) is whether the affected individual or group has suffered from “pre‑existing disadvantage, vulnerability, stereotyping, or prejudice”: Law, at para. 63. Historic patterns of discrimination against people in a group often indicate the presence of stereotypical or prejudicial views that have marginalized its members and prevented them from participating fully in society. This, in turn, raises the strong possibility that current differential treatment of the group may be motivated by or may perpetuate the same discriminatory views. The contextual factor of pre-existing disadvantage invites us to scrutinize group-based distinctions carefully to ensure that they are not based, either intentionally or unconsciously, on these kinds of unfounded generalizations and stereotypes.

Many of the enumerated grounds correspond to historically disadvantaged groups. For example, it is clear that members of particular racial or religious groups should not be excluded from receiving public benefits on account of their race or religion. However, unlike race, religion, or gender, age is not strongly associated with discrimination and arbitrary denial of privilege. This does not mean that examples of age discrimination do not exist. But age-based distinctions are a common and necessary way of ordering our society. They do not automatically evoke a context of pre-existing disadvantage suggesting discrimination and marginalization under this first contextual factor, in the way that other enumerated or analogous grounds might.

To expand on the earlier example, a sign on a courthouse door proclaiming “Men Only” evokes an entire history of discrimination against a historically disadvantaged class; a sign on a barroom door that reads “No Minors” fails to similarly offend. The fact that “[e]ach individual of any age has personally experienced all earlier ages and expects to experience the later ages” (P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at p. 52-54) operates against the arbitrary marginalization of people in a particular age group. Again, this does not mean that age is a “lesser” ground for s. 15 purposes. However, pre-existing disadvantage and historic patterns of discrimination against a particular group do form part of the contextual evaluation of whether a distinction is discriminatory, as called for in Law. Concerns about age-based discrimination typically relate to discrimination against people of advanced age who are presumed to lack abilities that they may in fact possess. Young people do not have a similar history of being undervalued. This is by no means dispositive of the discrimination issue, but it may be relevant, as it was in Law.

Both as a general matter, and based on the evidence and our understanding of society, young adults as a class simply do not seem especially vulnerable or undervalued. There is no reason to believe that individuals between ages 18 and 30 in Quebec are or were particularly susceptible to negative preconceptions. No evidence was adduced to this effect, and I am unable to take judicial notice of such a counter-intuitive proposition. Indeed, the opposite conclusion seems more plausible, particularly as the programs participation component of the social assistance scheme was premised on a view of the greater long-term employability of under-30s, as compared to their older counterparts. Neither the nature of the distinction at issue nor the evidence suggests that the affected group of young adults constitutes a group that historically has suffered disadvantage, or that is at a particular risk of experiencing adverse differential treatment based on the attribution of presumed negative characteristics: see Lovelace, supra, at para. 69.

With regard to this contextual factor, Ms. Gosselin is in the same position as Mrs. Law. In Law, Iacobucci J. stated (at para. 95):

Relatively speaking, adults under the age of 45 have not been consistently and routinely subjected to the sorts of discrimination faced by some of Canada’s discrete and insular minorities. For this reason, it will be more difficult as a practical matter for this Court to reason, from facts of which the Court may appropriately take judicial notice, that the legislative distinction at issue violates the human dignity of the appellant.

If anything, people under 30 appear to be advantaged over older people in finding employment. As Iacobucci J. also stated in Law, with respect to adults under 45 (at para. 101):

It seems to me that the increasing difficulty with which one can find and maintain employment as one grows older is a matter of which a court may appropriately take judicial notice. Indeed, this Court has often recognized age as a factor in the context of labor force attachment and detachment. For example, writing for the majority in McKinney, [[1990] 3 S.C.R. 229], LaForest J. stated as follows, at p. 299:

Barring specific skills, it is generally known that persons over 45 have more difficulty finding work than others. They do not have the flexibility of the young, a disadvantage often accentuated by the fact that the latter are frequently more recently trained in the more modern skills.

Iacobucci J. went on to note that “[s]imilar thoughts were expressed in Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, at pp. 998-99, per Iacobucci J., and at pp. 1008-9, per McLachlin J., [. . . and] Moge v. Moge, [1992] 3 S.C.R. 813, at pp. 881-83, per McLachlin J.”

Given the lack of pre-existing disadvantage experienced by young adults, Ms. Gosselin attempts to shift the focus from age to welfare, arguing that all welfare recipients suffer from stereotyping and vulnerability. However, this argument does not assist her claim. The ground of discrimination upon which she founds her claim is age. The question with respect to this contextual factor is therefore whether the targeted age-group, comprising young adults aged 18 to 30, has suffered from historic disadvantage as a result of stereotyping on the basis of age. Re-defining the group as welfare recipients aged 18 to 30 does not help us answer that question, in particular because the 30-and-over group that Ms. Gosselin asks us to use as a basis of comparison also consists entirely of welfare recipients.

I conclude that the appellant has not established that people aged 18 to 30 have suffered historical disadvantage on the basis of their age. There is nothing to suggest that people in this age group have historically been marginalized and treated as less worthy than older people.

(b) Relationship Between Grounds and the Claimant Group’s Characteristics or Circumstances

The second contextual factor we must consider in determining whether the distinction is discriminatory in the sense of denying human dignity and equal worth is the relationship between the ground of distinction (age) and the actual characteristics and circumstances of the claimant’s group: Law, at para. 70. A law that is closely tailored to the reality of the affected group is unlikely to discriminate within the meaning of s. 15(1). By contrast, a law that imposes restrictions or denies benefits on account of presumed or unjustly attributed characteristics is likely to deny essential human worth and to be discriminatory. Both purpose and effect are relevant here, insofar as they would affect the perception of a reasonable person in the claimant’s position: see Law, at para. 96.

I turn first to purpose in order to evaluate whether or not the rationale for the challenged distinction corresponded to the actual circumstances of under-30s subject to differential welfare scheme. The evidence indicates that the purpose of the challenged distinction, far from being stereotypical or arbitrary, corresponded to the actual needs and circumstances of individuals under 30. In the late 1960s and early 1970s, the unemployment rate among young Quebecers was relatively low, as jobs were readily available. However, circumstances changed dramatically in the course of the ensuing years. First, North America experienced a deep recession in the early 1980s, which hit Quebec hard and drove unemployment from a traditional rate hovering around 8 percent to a peak of 14.4 percent of the active population in 1982, and among the young from 6 percent (1966) to 23 percent. At the same time, the federal government tightened eligibility requirements for federal unemployment insurance benefits, and the number of young people entering the job market for the first time surged. These three events caused an unprecedented increase in the number of people capable of working who nevertheless ended up on the welfare rolls.

The situation of young adults was particularly dire. The unemployment rate among young adults was far higher than among the general population. People under 30, capable of working and without any dependants, made up a greater proportion of welfare recipients than ever before. Moreover, this group accounted for the largest — and steadily growing — proportion of new entrants into the welfare system: by 1983 fully two-thirds of new welfare recipients were under 30, and half were under the age of 23. In addition to coming onto the welfare rolls in ever greater numbers, younger individuals did so for increasingly lengthy periods of time. In 1975, 60 percent of welfare recipients under 30 not incapable of working left the welfare rolls within six months. By 1983, only 30 percent did so.

Behind these statistics lay a complex picture. The “new economy” emerging in the 1980s offered diminishing prospects for unskilled or under-educated workers. At the same time, a disturbing trend persisted of young Quebecers dropping out of school and trying to join the workforce. The majority of unemployed youths in the early 1980s were school drop-outs. Unemployed youths were, on average, significantly less educated than the general population, and the unemployment rate among young people with fewer than eight years of education stood at 40 percent to 60 percent. Lack of skills and basic education were among the chief causes of youth unemployment.

The government’s short-term purpose in the scheme at issue was to get recipients under 30 into work and training programs that would make up for the lower base amount they received while teaching them valuable skills. The differential regime of welfare payments was tailored to help the burgeoning ranks of unemployed youths obtain the skills and basic education they needed to get permanent jobs. The mechanism was straightforward. In order to increase their welfare benefits, people under 30 would be required to participate in On-the-job Training, Community Work or Remedial Education Programs. Participating in the training and community service programs would bring welfare benefits up to the basic level payable to the 30-and-over group, and in the education program to about $100 less.

The government’s longer-term purpose was to provide young welfare recipients with precisely the kind of remedial education and skills training they lacked and needed in order eventually to integrate into the workforce and become self-sufficient. This policy reflects the practical wisdom of the old Chinese proverb: “Give a man a fish and you feed him for a day. Teach him how to fish and you feed him for a lifetime.” This was not a denial of young people’s dignity; it was an affirmation of their potential.

Simply handing over a bigger welfare cheque would have done nothing to help welfare recipients under 30 escape from unemployment and its potentially devastating social and psychological consequences above and beyond the short-term loss of income. Moreover, opposition to the incentive program entirely overlooks the cost to young people of being on welfare during the formative years of their working lives. For young people without significant educational qualifications, skills, or experience, entering into the labour market presents considerable difficulties. A young person who relies on welfare during this crucial initial period is denied those formative experiences which, for those who successfully undertake the transition into the productive workforce, lay the foundation for economic self-sufficiency and autonomy, not to mention self-esteem. The longer a young person stays on welfare, the more difficult it becomes to integrate into the workforce at a later time. In this way, reliance on welfare can contribute to a vicious circle of inability to find work, despair, and increasingly dismal prospects.

Instead of turning a blind eye to these problems, the government sought to tackle them at their roots, designing social assistance measures that might help welfare recipients achieve long-term autonomy. Because federal rules in effect at the time prohibited making participation in the programs mandatory, the province’s only real leverage in promoting these programs lay in making participation a prerequisite for increases in welfare. Even if one does not agree with the reasoning of the legislature or with its priorities, one cannot argue based on this record that the legislature’s purpose lacked sufficient foundation in reality and common sense to fall within the bounds of permissible discretion in establishing and fine-tuning a complex social assistance scheme. Logic and common sense support the legislature’s decision to structure its social assistance programs to give young people, who have a greater potential for long-term insertion into the workforce than older people, the incentive to participate in programs specifically designed to provide them with training and experience. As indicated above, the government’s purpose is a relevant contextual factor in the s. 15(1) analysis insofar as it relates to how a reasonable person in the claimant’s circumstances would have perceived the incentive-based welfare regime. In this case, far from ignoring the actual circumstances of under-30s, the scheme at issue was designed to address their needs and abilities. A reasonable person in the claimant’s circumstances would have taken this into account.

Turning to effect, Ms. Gosselin argues that the regime set up under the Regulation in fact failed to address the needs and circumstances of welfare recipients under 30 because the ability to “top up” the basic entitlement by participating in programs was more theoretical than real. She argues that, notwithstanding the legislature’s intentions, the practical consequence of the Regulation was to abandon young welfare recipients, leaving them to survive on a grossly inadequate sum of money. In this way the program did not correspond to their actual needs, she argues, and amounted to discriminatory marginalization of the affected group.

The main difficulty with this argument is that the trial judge, after a lengthy trial and careful scrutiny of the record, found that Ms. Gosselin had failed to establish actual adverse effect. Reeves J. cautioned against generalizing from Ms. Gosselin’s experience, and against over-reliance on opinion statements by experts in this regard, given the absence of any evidence to support the experts’ claims about the material situation of individuals in the under-30 age group. He concluded: [translation] “It is therefore highly doubtful that the representative plaintiff, acting on behalf of some 75 000 individuals, has discharged her burden of proof concerning whether the law had adverse effects on them” (p. 1664).

I can find no basis upon which this Court can set aside this finding. There is no indication in the record that any welfare recipient under 30 wanting to participate in one of the programs was refused enrollment. Louise Gosselin, who in fact participated in each of the three programs, was the only witness to provide first-hand testimony about the programs at trial. There is no evidence that anyone who tried to access the programs was turned away, or that the programs were designed in such a way as to systematically exclude under-30s from participating. In fact, these programs were initially available only to people under 30 (and, in the case of the Remedial Education Program, to heads of single-parent households 30 and over); they were opened up to all welfare recipients in 1989. As the trial judge emphasized, the record contains no first-hand evidence supporting Ms. Gosselin’s claim about the difficulties with the programs, and no indication that Ms. Gosselin can be considered representative of the under-30 class. It is, in my respectful opinion, utterly implausible to ask this Court to find the Quebec government guilty of discrimination under the Canadian Charter and order it to pay hundreds of millions of taxpayer dollars to tens of thousands of unidentified people, based on the testimony of a single affected individual. Nor does Ms. Gosselin present sufficient evidence that her own situation was a result of discrimination in violation of s. 15(1). The trial judge did not find evidence indicating a violation, and my review of the record does not reveal any error in this regard.

It is unnecessary to engage in the exercise of surmising how many program places would have been required had every eligible welfare recipient under 30 chosen to participate. In fact, contrary to her allegation, Ms. Gosselin’s own experience clearly establishes that participation was a real possibility. For most of the relevant period, Ms. Gosselin’s benefits were increased as a result of program participation. On those occasions when Ms. Gosselin dropped out of programs, the record indicates that this was due to personal problems, which included psychological and substance abuse components, rather than to flaws in the programs themselves. Ms. Gosselin’s experience suggests that even individuals with serious problems were capable of supplementing their income under the impugned regime.

Ms. Gosselin also objects to the fact that the Remedial Education Program yielded less of an increase in benefits than the other programs, leaving participants in that program with a lower basic entitlement than the older group. However, this seems to amount to little more than an incentive for young individuals to prefer some programs (On-the-job Training or Community Work) over another (Remedial Education). In addition, it is worth noting that the government provided books and other materials to Remedial Education participants free of charge. The decision to structure the programs in this particular fashion may be good or bad policy, but it does not establish a breach of the claimant’s essential human dignity, or a lack of correlation between the provision and the affected group’s actual circumstances.

My colleague Bastarache J. relies on the conclusion of Robert J.A., dissenting, that, based on the expert evidence, there were not enough places available in the programs to meet the needs of all welfare recipients under 30. This evidence was before the trial judge, who rejected it as insufficient and specifically cautioned against over-reliance on the experts’ opinions. With respect, I am of the view that it is not open to this Court to revisit the trial judge’s conclusion absent demonstrated error. Furthermore, my colleague appears to accept in the course of his s. 7 analysis that Ms. Gosselin’s problems cannot be attributed solely to the age-based distinction she challenges under s. 15. He states, “[i]n this case, the threat to the appellant’s right to security of the person [i.e., her poverty] was brought upon her by the vagaries of a weak economy, not by the legislature’s decision not to accord her more financial assistance or to require her to participate in several programs in order for her to receive more assistance” (para. 217). And again: “[The appellant] has not demonstrated that the legislation, by excluding her, has reduced her security any more than it would have already been, given market conditions” (para. 222); “nor did the underinclusive nature of the Regulation substantially prevent or inhibit the appellant from protecting her own security” (para. 223).

My colleague Bastarache J. also relies on the claim that only a very small percentage of welfare recipients under 30 actually received the base amount allocated to those 30 and over, because the majority of participants tended to opt for the lower-paying Remedial Education Program (Robert J.A. cites a figure of 11.2 percent, apparently from an economist’s 1988 report). The first point is, again, that the trial judge did not find Ms. Gosselin’s statistical and expert evidence convincing, particularly given the absence of first-hand testimony from actual class members. But there are other problems. There is no evidence about why only about one-third of eligible welfare recipients participated in the programs. Nor is there evidence about the actual income of under-30s who did not participate; clearly “aid received” is not necessarily equivalent to “total income”.

For these reasons, the appellant has not shown that the impugned Regulation effectively excluded her or others like her from the protection against extreme poverty afforded by the social security scheme. Rather, the effect was to cause young people to attend training and education programs as a condition of receiving the full “basic needs” level of social assistance. I do not believe that making payments conditional in this way violated the dignity or human worth of persons under 30 years of age. The condition was not imposed as a result of negative stereotypes. The condition did not effectively consign the appellant or others like her to extreme poverty. Finally, the condition did not force the appellant to do something that demeaned her dignity or human worth.

The long-term effects of the Regulation are also relevant in considering how a reasonable person in the claimant’s position would have viewed the government program. The argument is that it imposed short-term pain. But the government thought that in the long run the program would benefit recipients under 30 by encouraging them to get training and find employment. We do not know whether it did so; the fact that the scheme was subsequently revamped may suggest the contrary. The point is simply this: Ms. Gosselin has not established, on the record before us, that the scheme did not correspond to the needs and situation of welfare recipients under 30 in the short or the long term, or that a reasonable person in her circumstances would have perceived that the government’s efforts to equip her with training rather than simply giving her a monthly stipend denied her human dignity or treated her as less than a “full perso[n]” (Bastarache J., at para. 258).

It may well be that some under-30s fell through the cracks of the system and suffered poverty. However, absent concrete evidence, it is difficult to infer from this that the program failed to correspond to the actual needs of under-30s. I find no basis to interfere with the trial judge’s conclusion that the record here simply does not support the contention of adverse effect on younger welfare recipients. This makes it difficult to conclude that the effect of the program did not correspond to the actual situation of welfare recipients under 30.

I add two comments. Perfect correspondence between a benefit program and the actual needs and circumstances of the claimant group is not required to find that a challenged provision does not violate the Canadian Charter . The situation of those who, for whatever reason, may have been incapable of participating in the programs attracts sympathy. Yet the inability of a given social program to meet the needs of each and every individual does not permit us to conclude that the program failed to correspond to the actual needs and circumstances of the affected group. As Iacobucci J. noted in Law, supra, at para. 105, we should not demand “that legislation must always correspond perfectly with social reality in order to comply with s. 15(1) of the Charter”. Crafting a social assistance plan to meet the needs of young adults is a complex problem, for which there is no perfect solution. No matter what measures the government adopts, there will always be some individuals for whom a different set of measures might have been preferable. The fact that some people may fall through a program’s cracks does not show that the law fails to consider the overall needs and circumstances of the group of individuals affected, or that distinctions contained in the law amount to discrimination in the substantive sense intended by s. 15(1).

Second, we cannot infer disparity between the purpose and effect of the scheme and the situation of those affected, from the mere failure of the government to prove that the assumptions upon which it proceeded were correct. Bastarache J. argues that the distinction between people under 30 and older people lacks a “rational basis” because it is “[b]ased on the unverifiable presumption that people under 30 had better chances of employment and lower needs” (para. 248). This seems to place on the legislator the duty to verify all its assumptions empirically, even where these assumptions are reasonably grounded in everyday experience and common sense. With respect, this standard is too high. Again, this is primarily a disagreement as to evidence, not as to fundamental approach. The legislator is entitled to proceed on informed general assumptions without running afoul of s. 15, Law, at para. 106, provided these assumptions are not based on arbitrary and demeaning stereotypes. The idea that younger people may have an easier time finding employment than older people is not such a stereotype. Indeed, it was relied on in Law to justify providing younger widows and widowers with a lesser survivor’s benefit.

A final objection is that the selection of 30 years of age as a cut-off failed to correspond to the actual situation of young adults requiring social assistance. However, all age-based legislative distinctions have an element of this literal kind of “arbitrariness”. That does not invalidate them. Provided that the age chosen is reasonably related to the legislative goal, the fact that some might prefer a different age — perhaps 29 for some, 31 for others — does not indicate a lack of sufficient correlation between the distinction and actual needs and circumstances. Here, moreover, there is no evidence that a different cut-off age would have been preferable to the one selected.

I conclude that the record in this case does not establish lack of correlation in purpose or effect between the ground of age and the needs and circumstances of welfare recipients under 30 in Quebec.

(c) The Ameliorative Purpose or Effect of the Impugned Law Upon a More Disadvantaged Person or Group in Society

A third factor to be considered in determining whether the group-based devaluation of human worth targeted by s. 15 is established, is whether the challenged distinction was designed to improve the situation of a more disadvantaged group. In Law, the Court took into account that the lower pensions for younger widows and widowers were linked to higher pensions for needier, less advantaged, widows and widowers: Law, at para. 103.

Here there is no link between creating an incentive scheme for young people involving lower benefits coupled with a program participation requirement, and providing more benefits for older or more disadvantaged people. From this perspective, this contextual factor is neutral. More broadly, the distinction in benefits can be argued to reflect the different situations of recipients under 30 and recipients 30 and over. It is true that younger people require as much to live as older people. However, we may take judicial notice of the increased difficulty older people may encounter in finding employment, as this Court did in Law. At the same time, the benefits of training and entry into the workforce are greater for younger people than for older people: younger people have a longer career span ahead of them once they join the labour force, and, for them, dependence on welfare risks establishing a chronic pattern at an early age.

Viewed thus, the differential treatment of older and younger welfare recipients does not indicate that older recipients were more valued or respected than younger recipients. Older welfare recipients were, if not more disadvantaged (as in Law), “differently disadvantaged”. Their different positions with respect to long-term employability as compared to younger people provided a reasonable basis for the legislature to tailor its programs to their different situations and needs. The provision of different initial amounts of monetary support to each of the two groups does not indicate that one group’s dignity was prized above the other’s. Those 30 and over and under-30s were not “similarly situated” in ways relevant to determining the appropriate level of social assistance in the form of unconditional welfare payments.

More generally, as discussed above, the Regulation was aimed at ameliorating the situation of welfare recipients under 30. A reasonable person in Ms. Gosselin’s position would take this into account in determining whether the scheme treated under-30s as less worthy of respect and consideration than those 30 and over.

(d) Nature and Scope of the Interests Affected by the Impugned Law

This factor directs us to consider the impact of the impugned law — how “severe and localized the . . . consequences [are] on the affected group”: Egan v. Canada, [1995] 2 S.C.R. 513, at para. 63, quoted in Law, supra, at para. 74.

The trial judge, as noted, was unable to conclude that the evidence established actual adverse effects on welfare recipients under 30. The legislature thought it was helping under-30 welfare recipients; while we can surmise that the lower amount caused under-30s greater financial anxiety in the short term than a larger payment would have, we do not know how this actually played out in the context of the program participation scheme, or whether those 30 and over, who were only receiving 55 percent of the poverty level, experienced similar anxiety. The complainant argues that the lesser amount harmed under-30s and denied their essential human dignity by marginalizing them and preventing them from participating fully in society. But again, there is no evidence to support this claim. For those under 30 who were unable, for whatever reason, to increase their base entitlement, the lower base amount might have represented a significant adverse impact, depending on the availability of other resources, like family assistance. But even if we are prepared to accept that some young people must have been pushed well below the poverty line, we do not know how many, nor for how long. In this situation, it is difficult to gauge the nature and scope of the interests affected by the Regulation. We return once more to the central difficulty faced by the trial judge: despite Ms. Gosselin’s claim to speak on behalf of 75 000 young people, she simply did not give the court sufficient evidence to support her allegation that the lower base amount was discriminatory, either against her or against the class as a whole.

Assessing the severity of the consequences also requires us to consider the positive impact of the legislation on welfare recipients under 30. The evidence shows that the regime set up under the Social Aid Act sought to promote the self-sufficiency and autonomy of young welfare recipients through their integration into the productive workforce, and to combat the pernicious side effects of unemployment and welfare dependency. The participation incentive worked towards the realization of goals that go to the heart of the equality guarantee: self-determination, personal autonomy, self-respect, feelings of self-worth, and empowerment. These are the stuff and substance of essential human dignity: see Law, supra, at para. 53. I respectfully disagree with the suggestion that the incentive provisions somehow indicated disdain for young people or a belief that they could be made productive only through coercion. On the contrary, the program’s structure reflected faith in the usefulness of education and the importance of encouraging young people to develop their skills and employability, rather than being consigned to dependence and unemployment. In my view, the interest promoted by the differential treatment at issue in this case is intimately and inextricably linked to the essential human dignity that animates the equality guarantee set out at s. 15(1) of the Canadian Charter .

We must decide this case on the evidence before us, not on hypotheticals, or on what we think the evidence ought to show. My assessment of the evidence leads me to conclude that, notwithstanding its possible short-term negative impact on the economic circumstances of some welfare recipients under 30 as compared to those 30 and over, the thrust of the program was to improve the situation of people in this group, and to enhance their dignity and capacity for long-term self-reliance. The nature and scope of the interests affected point not to discrimination but to concern for the situation of welfare recipients under 30. Absent more persuasive evidence to the contrary, I cannot conclude that a reasonable person in the claimant’s position would have experienced this scheme as discriminatory, based on the contextual factors and the concern for dignity emphasized in Law.

The question is whether a reasonable welfare recipient under age 30 who takes into account the contextual factors relevant to the claim would conclude that the lower base amount provided to people under 30 treated her, in purpose or effect, as less worthy and less deserving of respect, consideration and opportunity than people 30 and over. On the evidence before us, the answer to this question must be no.

Looking at the four contextual factors set out in Law, I cannot conclude that the denial of human dignity fundamental to a finding of discrimination is established. This is not a case where the complainant group suffered from pre-existing disadvantage and stigmatization. Lack of correspondence between the program and the actual circumstances of recipients under 30 is not established, in either purpose or effect. The “ameliorative purpose” factor is neutral with respect to discrimination. Finally, the findings of the trial judge and the evidence do not support the view that the overall impact on the affected individuals undermined their human dignity and their right to be recognized as fully participating members of society, notwithstanding their membership in the class affected by the distinction.

A reasonable welfare recipient under 30 might have concluded that the program was harsh, perhaps even misguided. (As noted, it eventually was repealed.) But she would not reasonably have concluded that it treated younger people as less worthy or less deserving of respect in a way that had the purpose or effect of marginalizing or denigrating younger people in our society. If anything, she would have concluded that the program treated young people as more able than older people to benefit from training and education, more able to get and retain a job, and more able to adapt to their situations and become fully participating and contributing members of society.

Far from relying on false stereotypes, the program was calibrated to address the particular needs and circumstances of young adults requiring social assistance, considered from both short-term and long-term perspectives. I do not suggest that stereotypical thinking must always be present for a finding that s. 15 is breached. However, its absence is a factor to be considered. The age-based distinction was made for an ameliorative, non-discriminatory purpose, and its social and economic thrust and impact were directed to enhancing the position of young people in society by placing them in a better position to find employment and live fuller, more independent lives. Nor, on the findings of the trial judge, is it established that the program’s effect was to undermine the worth of its members in comparison with older people.

The most compelling way to put the claimant’s case is this. We are asked to infer from the apparent lack of widespread participation in programs that some recipients under 30 must at some time have been reduced to utter poverty. From this we are further asked to infer that at least some of these people’s human dignity and ability to participate as fully equal members of society were compromised.

The inferences that this argument asks us to draw are problematic. The trial judge, as discussed, was unable to find evidence of actual adverse impact on under-30s as a group. Moreover, the argument rests on a standard of perfection in social programs. As this Court noted in Law, that is not the standard to be applied. Some people will always fall through the cracks of social programs. That does not establish denial of human dignity and breach of s. 15. What is required is demonstration that the program as a whole and in the context of Law’s four factors in purpose or effect denied human dignity to the affected class, penalizing or marginalizing them simply for being who they were. In this case, that has not been shown.

In many respects, the case before us is strikingly similar to Law. The provision there drew an age-based distinction in a survivor’s entitlement to pension benefits, allocating no benefit to survivors who were under 35 years of age at the time of the contributor’s death, in the absence of specific circumstances provided for in the legislation. The provision here draws an age-based distinction in an unemployed individual’s entitlement to welfare benefits, allocating a reduced monetary benefit coupled with a program participation incentive to unemployed individuals who are under 30 years of age at the time of receipt, in the absence of specific circumstances provided for in the Regulation. The appellant in Law argued that the distinction, however well intentioned, was based on a faulty assumption that younger people can more easily obtain employment than older people. The appellant here argues that the distinction, however well intentioned, is based on a faulty assumption that younger people can more easily obtain employment than older people. The appellant in Law emphasized short-term differences, while the respondent emphasized long-term needs. The appellant here emphasizes short-term differences, while the respondent emphasizes long-term needs. The Court held in Law that while the law contained a facial age-based distinction that treated younger people adversely, “the differential treatment does not reflect or promote the notion that they are less capable or less deserving of concern, respect, and consideration, when the dual perspectives of long-term security and the greater opportunity of youth are considered” (para. 102). Similarly here, the aim of the legislation in averting long-term dependency on welfare and promoting insertion into the labour force, coupled with the provision of job training and remedial education programs, leads to the conclusion that the differential treatment does not reflect or promote the notion that young people are less capable or less deserving of concern, respect, and consideration. The Court found in Law that the legislation’s failure to correspond perfectly to the circumstances of each and every individual member of the affected group did not “affect the ultimate conclusion that the legislation is consonant with the human dignity and freedom of the appellant” (para. 106). Likewise here, the legislation’s arguable failure to correspond perfectly to Ms. Gosselin’s personal circumstances, the only circumstances described in the record, does not affect the ultimate conclusion that the legislation is consonant with her human dignity and freedom, and with the human dignity and freedom of under-30s generally.

I conclude that the impugned law did not violate the essential human dignity of welfare recipients under 30. We must base our decision on the record before us, not on personal beliefs or hypotheticals. On the facts before us, the law did not discriminate against Ms. Gosselin, either individually or as a member of the group of 18- to 30-year-olds in Quebec. The differential welfare scheme did not breach s. 15(1) of the Canadian Charter .

Section 7 states that “[e]veryone has the right to life, liberty and security of the person” and “the right not to be deprived” of these “except in accordance with the principles of fundamental justice”. The appellant argues that the s. 7 right to security of the person includes the right to receive a particular level of social assistance from the state adequate to meet basic needs. She argues that the state deprived her of this right by providing inadequate welfare benefits, in a way that violated the principles of fundamental justice. There are three elements to this claim: (1) that the legislation affects an interest protected by the right to life, liberty and security of the person within the meaning of s. 7; (2) that providing inadequate benefits constitutes a “deprivation” by the state; and (3) that, if deprivation of a right protected by s. 7 is established, this was not in accordance with the principles of fundamental justice. The factual record is insufficient to support this claim. Nevertheless, I will examine these three elements.

The first inquiry is whether the right here contended for — the right to a level of social assistance sufficient to meet basic needs — falls within s. 7. This requires us to consider the content of the right to life, liberty and security of the person, and the nature of the interests protected by s. 7.

As emphasized by my colleague Bastarache J., the dominant strand of jurisprudence on s. 7 sees its purpose as guarding against certain kinds of deprivation of life, liberty and security of the person, namely, those “that occur as a result of an individual’s interaction with the justice system and its administration”: New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 65. “[T]he justice system and its administration” refers to “the state’s conduct in the course of enforcing and securing compliance with the law” (G. (J.), at para. 65). This view limits the potential scope of “life, liberty and security of the person” by asking whom or what s. 7 protects against. Under this narrow interpretation, s. 7 does not protect against all measures that might in some way impinge on life, liberty or security, but only against those that can be attributed to state action implicating the administration of justice: see Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (the “Prostitution Reference”), at pp. 1173-74, per Lamer J. (as he then was), writing for himself; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at paras. 21-23, per Lamer C.J., again writing for himself alone; and G. (J.), supra, for the majority. This approach was affirmed in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44, per Bastarache J. for the majority.

This Court has indicated in its s. 7 decisions that the administration of justice does not refer exclusively to processes operating in the criminal law, as Lamer C.J. observed in G. (J.), supra. Rather, our decisions recognize that the administration of justice can be implicated in a variety of circumstances: see Blencoe, supra (human rights process); B. (R.), supra (parental rights in relation to state-imposed medical treatment); G. (J.), supra (parental rights in the custody process); Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925 (liberty to refuse state-imposed addiction treatment). Bastarache J. argues that s. 7 applies only in an adjudicative context. With respect, I believe that this conclusion may be premature. An adjudicative context might be sufficient, but we have not yet determined that one is necessary in order for s. 7 to be implicated.

In my view, it is both unnecessary and undesirable to attempt to state an exhaustive definition of the administration of justice at this stage, delimiting all circumstances in which the administration of justice might conceivably be implicated. The meaning of the administration of justice, and more broadly the meaning of s. 7, should be allowed to develop incrementally, as heretofore unforeseen issues arise for consideration. The issue here is not whether the administration of justice is implicated — plainly it is not — but whether the Court ought to apply s. 7 despite this fact.

Can s. 7 apply to protect rights or interests wholly unconnected to the administration of justice? The question remains unanswered. In R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 56, Dickson C.J., for himself and Lamer J. entertained (without deciding on) the possibility that the right to security of the person extends “to protect either interests central to personal autonomy, such as a right to privacy”. Similarly, in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 1003, Dickson C.J., for the majority, left open the question of whether s. 7 could operate to protect “economic rights fundamental to human . . . survival”. Some cases, while on their facts involving the administration of justice, have described the rights protected by s. 7 without explicitly linking them to the administration of justice: B.(R.), supra; G. (D.F.), supra.

Even if s. 7 could be read to encompass economic rights, a further hurdle emerges. Section 7 speaks of the right not to be deprived of life, liberty and security of the person, except in accordance with the principles of fundamental justice. Nothing in the jurisprudence thus far suggests that s. 7 places a positive obligation on the state to ensure that each person enjoys life, liberty or security of the person. Rather, s. 7 has been interpreted as restricting the state’s ability to deprive people of these. Such a deprivation does not exist in the case at bar.

One day s. 7 may be interpreted to include positive obligations. To evoke Lord Sankey’s celebrated phrase in Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.), at p. 136, the Canadian Charter must be viewed as “a living tree capable of growth and expansion within its natural limits”: see Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158, at p. 180, per McLachlin J. It would be a mistake to regard s. 7 as frozen, or its content as having been exhaustively defined in previous cases. In this connection, LeBel J.’s words in Blencoe, supra, at para. 188 are apposite:

We must remember though that s. 7 expresses some of the basic values of the Charter. It is certainly true that we must avoid collapsing the contents of the Charter and perhaps of Canadian law into a flexible and complex provision like s. 7. But its importance is such for the definition of substantive and procedural guarantees in Canadian law that it would be dangerous to freeze the development of this part of the law. The full impact of s. 7 will remain difficult to foresee and assess for a long while yet. Our Court should be alive to the need to safeguard a degree of flexibility in the interpretation and evolution of s. 7 of the Charter.

The question therefore is not whether s. 7 has ever been — or will ever be — recognized as creating positive rights. Rather, the question is whether the present circumstances warrant a novel application of s. 7 as the basis for a positive state obligation to guarantee adequate living standards.

I conclude that they do not. With due respect for the views of my colleague Arbour J., I do not believe that there is sufficient evidence in this case to support the proposed interpretation of s. 7. I leave open the possibility that a positive obligation to sustain life, liberty, or security of the person may be made out in special circumstances. However, this is not such a case. The impugned program contained compensatory “workfare” provisions and the evidence of actual hardship is wanting. The frail platform provided by the facts of this case cannot support the weight of a positive state obligation of citizen support.

In view of my conclusions under s. 15(1) and s. 7 of the Canadian Charter , the issue of justification under s. 1 does not arise. Nor does the issue of Canadian Charter remedies arise.

Section 45 of the Quebec Charter provides that every person in need has a right to “measures of financial assistance and to social measures provided for by law, susceptible of ensuring such person an acceptable standard of living”.

Ms. Gosselin argues that s. 45 creates a right to an acceptable standard of living and that Quebec’s social assistance scheme breached that right. On this issue, she substantially echoes the position of Robert J.A., dissenting, in the Quebec Court of Appeal. She further argues that a remedy for this alleged breach ought to be available under s. 49 of the Quebec Charter, a proposition that Robert J.A. rejected.

There can be no doubt that s. 45 purports to create a right. However, determining the scope and content of that right presents something of a challenge, as s. 45 is ambiguous, admitting of two possible interpretations. According to the first interpretation, by providing a right to “measures provided for by law, susceptible of ensuring . . . an acceptable standard of living”, s. 45 requires courts to review social assistance measures adopted by the legislature to determine whether or not they succeed in ensuring an acceptable standard of living. This is the approach urged upon us by the appellant.

A second interpretation reads s. 45 as creating a far more limited right. On this view, s. 45 requires the government to provide social assistance measures, but it places the adequacy of the particular measures adopted beyond the reach of judicial review. The phrase “susceptible of ensuring . . . an acceptable standard of living” serves to identify the measures that are the subject matter of the entitlement, i.e. to specify the kind of measures the state is obliged to provide, but it cannot ground a review of their adequacy. In my view, several considerations militate in favour of this second interpretation, as I indicate below.

Attention to the other provisions of Chapter IV of the Quebec Charter, entitled “Economic and Social Rights”, helps to put s. 45 in context, and sheds considerable light on the interpretive issue. Some of the provisions in Chapter IV deal with rights as between individuals, and do not directly implicate the state at all. For example, s. 39 provides that “[e]very child has a right to the protection, security and attention that his parents or the persons acting in their stead are capable of providing”. However, most of Chapter IV’s provisions do implicate the state, including s. 45. Of these provisions implicating the state, all but two deal with “positive rights”. That is, the rights described correspond to obligations for the state to do, or to provide, something. These include s. 40 (right to free public education); s. 41 (right to religious or moral education); and s. 44 (right to information).

Most of the provisions creating positive rights contain limiting language sharply curtailing the scope of the right. For example, the right to free public education provided at s. 40 is stated in the following terms: “[e]very person has a right, to the extent and according to the standards provided for by law, to free public education” (emphasis added). It would be misleading to characterize that right as creating a free-standing entitlement to free public education, in light of this limitation. Rather, the language of the provision suggests that the particulars of the regime enacted by the legislature in order to provide free education are beyond judicial review of their sufficiency.

This same structure applies to other key provisions in Chapter IV. For example:

41. Parents or the persons acting in their stead have a right to require that, in the public educational establishments, their children receive a religious or moral education in conformity with their convictions, within the framework of the curricula provided for by law.

42. Parents or the persons acting in their stead have a right to choose private educational establishments for their children, provided such establishments comply with the standards prescribed or approved by virtue of the law.

44. Every person has a right to information to the extent provided by law.

46. Every person who works has a right, in accordance with the law, to fair and reasonable conditions of employment which have proper regard for his health, safety and physical well‑being.

In all these cases, the rights provided are limited in such a way as to put the specific legislative measures or framework adopted by the legislature beyond the reach of judicial review. These provisions require the state to take steps to make the Chapter IV rights effective, but they do not allow for the judicial assessment of the adequacy of those steps. Indeed, the only provision creating a positive right that does not display this feature is s. 48, which states that “[e]very aged person and every handicapped person has a right to protection against any form of exploitation”. However, this provision seems distinguishable in that, unlike the other rights discussed above, the right contemplated does not a priori require the adoption of a special regime for its fulfilment.

Was s. 45 intended to make the adequacy of a social assistance regime’s specific provisions subject to judicial review, unlike the neighbouring provisions canvassed above? Had the legislature intended such an exceptional result, it seems to me that it would have given effect to this intention unequivocally, using precise language. There are examples of legal documents purporting to do just that. For example, Article 11(1) of the International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, recognizes “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions”. Article 22 of the Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), provides that “[e]veryone, as a member of society, has the right to social security” and is “entitled to realization . . . of the economic, social and cultural rights indispensable for his dignity and the free development of his personality”. Article 25(1) provides that:

Everyone has the right to a standard of living adequate for the health and well‑being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

In contrast to these provisions, which unambiguously and directly define the rights to which individuals are entitled (even though they may not be actionable), s. 45 of the Quebec Charter is highly equivocal. Indeed, s. 45 features two layers of equivocation. Rather than speaking of a right to an acceptable standard of living, s. 45 refers to a right to measures. Moreover, the right is not to measures that ensure an acceptable standard of living, but to measures that are susceptible of ensuring an acceptable standard of living. In my view, the choice of the term “susceptible” underscores the idea that the measures adopted must be oriented toward the goal of ensuring an acceptable standard of living, but are not required to achieve success. In other words, s. 45 requires only that the government be able to point to measures of the appropriate kind, without having to defend the wisdom of its enactments. This interpretation is also consistent with the respective institutional competence of courts and legislatures when it comes to enacting and fine-tuning basic social policy.

For these reasons, I am unable to accept the view that s. 45 invites courts to review the adequacy of Quebec’s social assistance regime. The Social Aid Act provides the kind of “measures provided for by law” that satisfy s. 45. I conclude that there was no breach of s. 45 of the Quebec Charter in this case.

Notwithstanding my conclusion that there is no breach of s. 45, I wish to make a brief comment on the issue of remedies. I agree with much that my colleague Bastarache J. says on the question of remedies. In particular, I agree that a breach of s. 45 cannot give rise to a declaration of invalidity, since such a remedy is available only under s. 52 of the Quebec Charter, which applies exclusively to s. 1 to s. 38. I further agree that s. 49 finds no application to a case such as this. However, I must respectfully disagree with Bastarache J. that it follows from the foregoing considerations that determining whether s. 45 has been breached is superfluous.

While it is true that courts lack the power to strike down laws that are inconsistent with the social and economic rights provided in Chapter IV of the Quebec Charter, it does not follow from this that courts are excused from considering claims based upon these rights. Individuals claiming their rights have been violated under the Charter are entitled to have those claims adjudicated, in appropriate cases. The Quebec Charter is a legal document, purporting to create social and economic rights. These may be symbolic, in that they cannot ground the invalidation of other laws or an action in damages. But there is a remedy for breaches of the social and economic rights set out in Chapter IV of the Quebec Charter: where these rights are violated, a court of competent jurisdiction can declare that this is so.

I would dismiss the appeal. I conclude that Quebec’s social assistance scheme, as it stood from 1987 to 1989, did not violate s. 7 or s. 15(1) of the Canadian Charter , or s. 45 of the Quebec Charter. Accordingly, I would answer the constitutional questions as follows:

1. Did s. 29(a) of the Regulation respecting social aid, R.R.Q. 1981, c. A-16, r. 1, adopted under the Social Aid Act, R.S.Q., c. A-16, infringe s. 15(1) of the Canadian Charter of Rights and Freedoms on the ground that it established a discriminatory distinction based on age with respect to individuals, capable of working, aged 18 to 30 years?

No.

2. If so, is the infringement justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ?

In view of the answer to Question 1, it is not necessary to answer this question.

3. Did s. 29(a) of the Regulation respecting social aid, R.R.Q. 1981, c. A-16, r. 1, adopted under the Social Aid Act, R.S.Q., c. A-16, infringe s. 7 of the Canadian Charter of Rights and Freedoms on the ground that it deprived those to whom it applied of their right to security of the person contrary to the principles of fundamental justice?

No.

4. If so, is the infringement justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ?

In view of the answer to Question 3, it is not necessary to answer this question.

The following are the reasons delivered by

L’Heureux-Dubé J. (dissenting) —

This appeal raises the question of the constitutionality of s. 29(a) of the Regulation respecting social aid, R.R.Q. 1981, c. A-16, r. 1 (since repealed). In my opinion, s. 29(a) does violate ss. 15 and 7 of the Canadian Charter of Rights and Freedoms (the “Canadian Charter ”) without justification, as well as s. 45 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12 (“Quebec Charter”). Accordingly, I would allow the appeal.

In reaching these conclusions, I agree with my colleagues Bastarache and LeBel JJ., in the result, as to the violation of s. 15, and with my colleague Arbour J.’s reasons as to the violation of s. 7 of the Charter. As to s. 45 of the Quebec Charter, I am basically in agreement with the dissenting opinion of Robert J.A. (now Chief Justice) of the Quebec Court of Appeal ([1999] R.J.Q. 1033), and therefore disagree with the opinion of LeBel J. on this issue.

Since I have some reservations and comments on each of the above analyses I set out the following remarks.

The present facts provide this Court with an opportunity to revisit the fundamental objectives of, and reaffirm its commitment to, the Canadian Charter ’s equality guarantee.

The purpose of a s. 15 inquiry is to determine whether the claimant has received substantive equality or equal benefit before and under the law. Equality is denied when the claimant suffers the pernicious effects of a distinction drawn on the basis of an irrelevant characteristic. Such a distinction may be drawn on an enumerated or analogous ground and appear on the face of the law. Alternatively, the distinction may be facially neutral and the negative effects may uniquely be visited upon individuals who possess a personal characteristic that corresponds to the enumerated or analogous grounds. In either case, discrimination is the result.

The Canadian Charter ’s structure dictates that even a finding that the claimant has been denied substantive equality is not the final step of the inquiry; it is possible for the infringement of s. 15 to be justified under s. 1. It is important to remember that the s. 15 inquiry precedes, and must always be kept distinct from, the s. 1 analysis. The evaluation of a s. 15 claim must always remain focussed on the particular claimant and his or her experience of the law.

The above comments should be uncontroversial, grounded as they are in this Court’s equality jurisprudence. Yet it appears necessary to recall what the purposes of s. 15 are, and what they are not. Presumptively excluding from s. 15's protection groups which clearly fall within an enumerated category does not serve the purposes of the equality guarantee. Abstract discussion about the nature of particular grounds does not serve the purposes of s. 15. Blurring the division between the rights provisions and s. 1 of the Canadian Charter , by incorporating the perspective of the legislature in a s. 15 analysis, is at odds with this Court’s approach to equality and surely does not serve the purposes of s. 15.

A majority of this Court has held that the objective of s. 15 is to affirm the dignity of individuals and groups by protecting them from unfair governmental action, which differentiates on the basis of characteristics that can be changed, if at all, only at great personal cost: Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, at para. 13. The characteristics which fall within the scope of s. 15's protective ambit have been expressly enumerated by the legislature, or found to be analogous grounds by the judiciary: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.

This Court has previously been divided over the question of whether certain characteristics should be recognized as analogous grounds. See, e.g., Miron v. Trudel, [1995] 2 S.C.R. 418, on the question of whether marital status constitutes an analogous ground. In the present case, we are in the unusual circumstance of disagreeing about whether to respect s. 15's express wording. Those who would “typically” exclude youth from protection under the ground of age ignore both the plain language of the Canadian Charter , and the method that this Court has adopted for s. 15 inquiries.

Under the Law test, the presence of a distinction made on the basis of an analogous ground is essentially a threshold question that leads to the heart of the inquiry, the question of whether the distinction infringes human dignity and contradicts the purposes of s. 15. It would appear that some are reluctant to accept that an explicit legislative distinction drawn on the basis of an enumerated ground satisfies the threshold requirement that permits courts to proceed to a detailed contextual analysis under the third stage of the Law inquiry.

Age is an enumerated ground. This Court has concluded that once recognized, an analogous ground remains a permanent marker of suspect distinction in all contexts: Corbiere, supra. It would seem to follow that grounds explicitly enumerated in s. 15 were similarly permanent markers. Admittedly, the Constitution ousts the protection afforded by this ground in specific contexts. See Constitution Act, 1867, ss. 23, 29 and 99, and the discussion in P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at p. 52-47. However, the Canadian Charter could have contained a general provision which excluded those below a certain age threshold from protection against discrimination, as provincial human rights codes have done. See, e.g., Ontario Human Rights Code, R.S.O. 1990, c. H.19, s. 10(1) “age”. The Canadian Charter contains no such provision.

Any attempt to read the limited range of provincial human rights codes’ age protections into s. 15 must fail. Provincial human rights codes in the employment context expressly exclude those 65 and over from protection on the grounds of age: Ontario Human Rights Code, ss. 5(1) and 10(1) “age”. This Court has declined to follow this example in its s. 15 jurisprudence. It has held that those the age of 65 and over fall within the scope of s. 15's protection, although government action that discriminates on this basis may be saved under s. 1: McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Harrison v. University of British Columbia, [1990] 3 S.C.R. 451; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22. This Court’s jurisprudence on age discrimination has respected the express wording of s. 15, even in the face of contrary tendencies in quasi-constitutional statutes. I see no principled reason to depart from this history of fidelity to the Canadian Charter ’s text and aspirations.

Moreover, any attempt to presumptively exclude youth from s. 15 protection, for the reason that age is a unique ground, misplaces the focus of a s. 15 inquiry. The proper focus of analysis is on the effects of discrimination, and not on the categorizing of grounds. In Egan v. Canada, [1995] 2 S.C.R. 513, at paras. 48 and 53, I wrote:

We must remember that the grounds in s. 15, enumerated and analogous, are instruments for finding discrimination. They are a means to an end. By focussing almost entirely on the nature, content and context of the disputed ground, however, we have begun to approach it as an end, in and of itself. . . .

We will never address the problem of discrimination completely, or ferret it out in all its forms, if we continue to focus on abstract categories and generalizations rather than on specific effects. [Emphasis deleted.]

I recently restated this position in Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94, at para. 166. I remain convinced that a discrimination claim should be evaluated primarily in terms of an impugned distinction’s effects, as they would have been experienced by a reasonable person in the claimant’s position. The point of departure should not lie in abstract generalizations about the nature of grounds.

Since courts engaged in a s. 15 analysis should focus on the effects of an impugned distinction, they should also refrain from relying on the viewpoint of the legislature. At the s. 15 stage, courts should not be concerned with whether the legislature was well-intentioned. This Court has long recognized that an intention to discriminate is not a necessary condition for a finding of discrimination: Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; and Andrews, supra, at pp. 173-74. By necessary implication, the fact that a legislature intends to assist the group or individual adversely affected by the impugned distinction also does not preclude a court from finding discrimination. Nor is it determinative, where a distinction produces prejudicial effects, that a legislature intends to provide an incentive for the affected individuals to alter their conduct or to change themselves in ways that the legislature believes would ultimately be beneficial for them: Lavoie v. Canada, [2002] 1 S.C.R. 769, 2002 SCC 23, at paras. 5, per McLachlin C.J. and L’Heureux-Dubé J., dissenting, and 51, per Bastarache J.

Of course, benign legislative intent may aid in saving a discriminatory distinction at s. 1, but that is a separate inquiry. In the earliest moments of its Canadian Charter jurisprudence, this Court insisted that the analysis of the right at issue should be kept separate from the inquiry into an impugned distinction’s justification: R. v. Oakes, [1986] 1 S.C.R. 103; Andrews, supra, at p. 182. As we enter the third decade of the Canadian Charter ’s existence, I see no reason to depart from this fundamental division. Moreover, I am unable to imagine how a departure could result in anything but a weakening of the equality guarantee.

The Law Test

This Court has repeatedly affirmed the importance of protecting individuals and groups from the negative effects of discrimination, as these are defined from the perspective of the reasonable person in the claimant’s position. The Law test is one such affirmation. I turn now to the question of how that test should be interpreted to ensure that human dignity remains the fundamental reference point for any evaluation of a s. 15 claim.

It is undisputed that s. 29(a) draws a distinction on an enumerated ground. All that remains under the Law test is to determine whether the impugned provision denies human dignity in purpose or effect. I begin by setting out two broad principles which should animate any application of Law: (1) discrimination need not involve stereotypes, and (2) the reasonable claimant is the perspective from which to evaluate a s. 15 claim.

(a) Discrimination Without Stereotypes

In addressing the question of stereotypes, it is worth quoting in full the unanimous Court in Law’s consolidation of various interpretive approaches to s. 15 (at para. 51):

It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or 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. Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds, and where the differential treatment reflects the stereotypical application of presumed group or personal characteristic, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society. [Emphasis added.]

This passage presents the application of stereotypical characteristics, and the “effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition” as alternative bases for finding discrimination. The presence of a stereotype is therefore not a necessary condition for a finding of discrimination and support for this proposition can be found throughout this Court’s equality jurisprudence.

In Andrews, McIntyre J. rejected the Court of Appeal’s attempt to “define discrimination under s. 15(1) as an unjustifiable or unreasonable distinction” (p. 181), and reasoned that such a definition would undermine the division between s. 15 and s. 1 (p. 182). A distinction that is stereotypical is necessarily unjustifiable or unreasonable. Consequently, the presence of a stereotype is not determinative of a finding of a discrimination.

One may object that McIntyre J.’s assertion only demonstrates that the presence of a stereotype is not sufficient grounds for a finding of discrimination. However, both Andrews itself and this Court’s subsequent jurisprudence on adverse effect discrimination make clear that the presence of stereotypes is also not a necessary condition for a finding of discrimination.

The distinction drawn in Andrews was discriminatory because it was irrelevant and singled out a group that was understood to fall within the ambit of s. 15's concern. McIntyre J. held (at p. 183):

A rule which bars an entire class of persons from certain forms of employment, solely on the grounds of a lack of citizenship status and without consideration of educational and professional qualifications or the other attributes or merits of individuals in the group, would, in my view, infringe s. 15 equality rights.

McIntyre J. reached his conclusion without considering the question of stereotypes, and this Court’s jurisprudence demonstrates that stereotypes need not be present for a finding of adverse effect discrimination.

A distinction that results in adverse effect discrimination need not, of course, include an intention to discriminate. In this Court’s definitive statement on indirect discrimination, McLachlin J. (as she then was) held that adverse effects are “unwitting, accidental” (British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, at para. 49). A neutral distinction, or one that “unwittingly” yields negative effects, is by definition not premised on a negative stereotype. Such distinctions yield, without justification, disproportionately negative impacts on groups recognized as being within the scope of an equality provision’s protection. In BCGSEU, McLachlin J. held (at para. 33):

The standard itself is discriminatory precisely because it treats some individuals differently from others, on the basis of a prohibited ground: see generally Toronto-Dominion Bank, supra, at paras. 140-41, per Roberston J.A. As this Court held in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at para. 66, if a rule has a substantively discriminatory effect on a prohibited ground, it should be characterized as such regardless of whether the claimant is a member of a majority or minority group.

In BCGSEU, the facially neutral standard was discriminatory because it had the effect of disproportionately excluding women. As in Andrews, supra, an analysis of stereotypes was simply not necessary for the disposition of the case. Prejudicial effects giving rise to a s. 15 claim may result when a legislature simply fails to turn its mind to the particular needs and abilities of individuals or groups so as to provide equal benefit under the law to all members of society: BCGSEU, at para. 33; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624.

If a stereotype is not a necessary or sufficient condition for a finding of discrimination, there must be other relevant indicators. Law listed four contextual factors to which a claimant can refer to demonstrate that a distinction has the effect of demeaning his or her dignity. Before considering these, it would be helpful to revisit Law’s understanding of human dignity. I reproduce in full a particularly illuminating passage (at para. 53):

Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?

This passage serves as a reminder that discrimination can arise in circumstances other than in the presence of stereotypes, and removes an ambiguity in the previously cited discussion of equality (see above, at para. 116). On one reading, the phrase “or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition”, taken together with the phrase “stereotypical application of presumed group or personal characteristic” (see above, at para. 116), may be understood to suggest that discrimination only arises where there has been a message sent to the community at large that is demeaning to the claimant. By contrast, the present passage unequivocally reveals that dignity can be infringed even if the “message” is conveyed only to the claimant.

The passage makes clear that if individual interests including physical and psychological integrity are infringed, a harm to dignity results. Such infringements undermine the individual’s self-respect and self-worth. They communicate to the individual that he or she is not a full member of Canadian society. Moreover, this passage proposes a reasonableness standard when it discusses what the claimant “legitimately feels when confronted with a particular law”. In these descriptions of human dignity, one can hear echoes of my position in the 1995 trilogy. In Egan, supra, I held (at para. 56) that the examination of whether a distinction is discriminatory

should be undertaken from a subjective-objective perspective: i.e. from the point of view of the reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the group of which the rights claimant is a member.

This Court has recently expressed its continuing support for this “reasonable claimant” standard in Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37, at para. 55. See also Corbiere, supra, at para. 65; Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28, at para. 81; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 75.

These preliminary remarks about Law serve as reminders that stereotypes are not needed to find a distinction to be discriminatory, and that the reasonable claimant is the perspective from, and the standard by which to evaluate a discrimination claim. With these remarks in mind, it is now time to turn to a consideration of the Law factors.

(c) Putting Effects First in Law

The four factors in Law are: (1) pre-existing disadvantage, (2) relationship between grounds and the claimant’s characteristics or circumstances, (3) ameliorative purposes or effects, and (4) the nature of the interest affected.

Although this Court made clear in Law that it is not necessary that all four factors be present for there to be a finding that a claimant’s human dignity has been infringed, and indeed that the presence or absence of no factor is determinative, subsequent applications of the Law test have typically attempted to either refute or establish every factor. See e.g., Corbiere, supra, and Lovelace, supra.

In addition, although the Court in Law held that “the most compelling factor favouring a conclusion that differential treatment imposed by legislation is truly discriminatory will be, where it exists, pre-existing disadvantage, vulnerability, stereotyping, or prejudice experienced by the individual or group” (para. 63), it insisted that “although a distinction drawn on such a basis is an important indicium of discrimination, it is not determinative” (para. 65). Therefore, although pre-existing disadvantage is the factor the presence of which will most likely weigh in favour of a finding that human dignity is infringed, its absence does not inexorably lead to the conclusion that dignity has not been infringed.

Courts applying Law must keep these reservations in mind. Since not all the factors must be shown to exist, and since pre-existing disadvantage is a compelling, but not necessary condition, it is conceivable that the sole presence of another factor may be sufficient to establish an infringement of dignity. Moreover, given that the effects of an impugned distinction should be the focal point of a discrimination analysis, and that stereotypes are not necessary for a finding of discrimination, the severe impairment of an extremely important interest may be sufficient to ground a claim of discrimination. I foresaw this possibility in Egan, supra, when I wrote (at para. 65):

[T]he more fundamental the interest affected or the more serious the consequences of the distinction, the more likely that the impugned distinction will have a discriminatory impact even with respect to groups that occupy a position of advantage in society.

It may be that particularly severe negative effects, as assessed under the fourth contextual factor in the third step of the Law test, may alone qualify a distinction as discriminatory. It is at least conceivable that negative effects severe enough would signal to a reasonable person possessing any personal characteristics, with membership in any classificatory group, that he or she is being less valued as a member of society. Therefore, even if we accept for the moment that youth are generally an advantaged group, if a distinction were to severely harm the fundamental interests of youth and only youth, that distinction would be found to be discriminatory.

These are the facts that are before this Court.

As a result of s. 29(a), adults under 30 were uniquely exposed by the legislative scheme to the threat of living beneath what the government itself considered to be a subsistence level of income. Of those eligible to participate in the programs, 88.8 percent were unable to increase their benefits to the level payable to those 30 and over. Ms. Gosselin was exposed to the risk of severe poverty as a sole consequence of being under 30 years of age. Ms. Gosselin’s psychological and physical integrity were breached. There is little question that living with the constant threat of poverty is psychologically harmful. There is no dispute that Ms. Gosselin lived at times below the government’s own standard of bare subsistence. In 1987, the monthly cost of proper nourishment was $152. The guaranteed monthly payment to young adults was $170. I cannot imagine how it can be maintained that Ms. Gosselin’s physical integrity was not breached.

The sole remaining question is whether a reasonable person in Ms. Gosselin’s position, apprised of all the circumstances, would perceive that her dignity had been threatened. The reasonable claimant would have been informed of the legislature’s intention to help young people enter the marketplace. She would have been informed that those 30 and over have more difficulty changing careers, and that those under 30 run serious social and personal risks if they do not enter the job market in a timely manner. She would have been told that the long-term goal of the legislative scheme was to affirm her dignity.

The reasonable claimant would also likely have been a member of the 88.8 percent who were eligible for the programs and whose income did not rise to the levels available to all adults 30 years of age and over. Even if she wished to participate in training programs, she would have found that there were intervals between the completion of one program and the starting of another, during which the amount of her social assistance benefit would have plunged. The reasonable claimant would have made daily life choices in the face of an imminent and severe threat of poverty. The reasonable claimant would likely have suffered malnourishment. She might have turned to prostitution and crime to make ends meet. The reasonable claimant would have perceived that as a result of her deep poverty, she had been excluded from full participation in Canadian society. She would have perceived that her right to dignity was infringed as a sole consequence of being under 30 years of age, a factor over which, at any given moment, she had no control. While individuals may be able to strive to overcome the detriment imposed by merit-based distinctions, Ms. Gosselin was powerless to alter the single personal characteristic that the government’s scheme made determinative for her level of benefits.

The reasonable claimant would have suffered, as Ms. Gosselin manifestly did suffer, from discrimination as a result of the impugned legislative distinction. I see no other conclusion but that Ms. Gosselin would have reasonably felt that she was being less valued as a member of society than people 30 and over and that she was being treated as less deserving of respect.

Since I have concluded that finding an individual or group to have suffered a severe harm to a fundamental interest, as a result of a legislative distinction drawn on either an enumerated or analogous ground, is sufficient for a court to conclude that the distinction was discriminatory, it is unnecessary to discuss the remaining Law factors. I will, however, do so briefly.

In respect of the second factor, there should be a strong presumption that a legislative scheme which causes individuals to suffer severe threats to their physical and psychological integrity as a result of their possessing a characteristic which cannot be changed does not adequately take into account the needs, capacity or circumstances of the individual or group in question. In the present circumstances, the impugned legislation sought to alleviate young adults’ experience of poverty by providing them with training. However, the reason that young adults experienced poverty was not a lack of training, but rather a lack of available employment. In any case, a legislative scheme that exposes the members of an enumerated or analogous category, and only those members, to severe poverty prima facie does not take into consideration the needs of that category’s members.

In respect of the third factor, I would like to address an apparent confusion. Law states at para. 72:

An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation.

This passage makes clear that the ameliorative purpose must be for the benefit of a group less advantaged than the one targeted by the impugned distinction. The relevant ameliorative purpose under the third factor is not defined with reference to the group that suffers the disadvantage imposed by the impugned distinction.

I stipulated above that youth do not suffer pre-existing disadvantage for the purpose of showing that in circumstances such as the present, a severe negative effect under the fourth factor would be sufficient to establish an infringement of dignity. I did not concede the point, nor do I believe that it should be conceded. The motivation behind the present legislative scheme was precisely to help a young adult population that was in disadvantaged circumstances. If 23 percent of young adults were unemployed by comparison with 14 percent of the general active population, and if an unprecedented number of young people were entering the job market at a time when federal social assistance programs were faltering, I fail to see how young adults did not suffer from a pre-existing disadvantage.

It may be argued that in the long view of history, young people have not suffered disadvantage, and therefore, for the purposes of an equality analysis, a court need not consider young people to suffer from pre-existing disadvantage. This is, however, inconsistent with a basic premise of discrimination law. In Brooks, supra, this Court held that a disadvantage need not be shared by all members of a group for there to be a finding of discrimination, if it can be shown that only members of that group suffered the disadvantage. This Court held that a distinction drawn on the basis of pregnancy could be found to discriminate against women, since although not all women would become pregnant, only women could. The same conclusion was reached in Egan, supra, where it did not matter whether the particular claimants would have made net gains by being included in the governmental pension regime at issue. What mattered was that where there was a disadvantage, it fell solely on the basis of sexual orientation.

A unique constellation of circumstances caused a crisis of unemployment, at the historical moment in question, which threatened human dignity in ways that were particularly grievous for young adults. Only youth would suffer from the long-term harms to self-esteem that attend not participating in the workforce at a young age. The reasoning in Brooks, supra, applied to the present circumstances should lead to the conclusion that while not all members of the class “young adults throughout time” suffered the particular threats to self-esteem that attend youth unemployment, only members of that class, or only “young adults at the relevant time”, did. Application of the reasoning in Brooks should lead to the conclusion that young adults suffered from a pre-existing disadvantage.

The breach of s. 15 was not justified under s. 1 and I concur entirely with my colleague Bastarache J.’s s. 1 analysis on this point.

I concur in my colleague Arbour J.’s thorough analysis of s. 7 of the Canadian Charter and for the reasons she expresses, I agree that s. 29(a) of the Regulation does violate s. 7. I would, however, like to offer a clarification. It is true that the legislature is in the best position to make the allocative choices necessary to implement a policy of social assistance. For a wide variety of reasons, courts are not in the best position to make such choices, and this is why this Court has historically shown judicial deference to governments in these matters. See, e.g., Mahe v. Alberta, [1990] 1 S.C.R. 342; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839; and Eldridge, supra.

However, although governments should in general make policy implementation choices, other actors may aid in determining whether social programs are necessary. In the present case, the government stated what it considered to be a minimal level of assistance but a claimant can also establish with adequate evidence what a minimal level of assistance would be. An analogy with the jurisprudence on minority language rights instruction may be helpful. In such cases, plaintiffs are able to establish whether “numbers warrant” the provision of minority language instruction even though legislatures and executives are generally given deference with respect to the operational choices that result in facilities being provided. See e.g., Mahe, supra. The same logic should apply in cases such as the present one.

As regards s. 1, I do not share my colleague Arbour J.’s contextual analysis in all its refinements (paras. 349-58), and prefer the approach to legislative context offered by Gonthier J. in Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 2002 SCC 68. The latter wrote (at para. 98):

The role of this Court, when faced with competing social or political philosophies and justifications dependent on them, is therefore to define the parameters within which the acceptable reconciliation of competing values lies. [Emphasis in original.]

Nonetheless, substantially for the reasons Arbour J. expressed as well as those of Robert J.A.’s dissent in the Quebec Court of Appeal, I agree that the present violation of s. 7 was not justified.

In another context, s. 15 concerns informed my analysis of s. 7. This was appropriate because the provisions of the Canadian Charter are to be understood as mutually reinforcing (see, e.g., R. v. Lyons, [1987] 2 S.C.R. 309, at p. 326; R. v. Tran, [1994] 2 S.C.R. 951, at p. 976). In addition, the equality provision is of foundational importance in the Canadian Charter . As McIntyre J. wrote in Andrews, supra, at p. 185:

The section 15(1) guarantee is the broadest of all guarantees. It applies to and supports all other rights guaranteed by the Charter.

Consequently, in New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, I brought the lens of the equality guarantee to the appellant’s s. 7 claim to state-funded counsel in hearings where the Minister of Health and Community Services sought an extension of a custody order. I found that the claim could only be adequately addressed in light of the appellant’s status as a single mother. I wrote (at para. 113):

This case raises issues of gender equality because women, and especially single mothers, are disproportionately and particularly affected by child protection proceedings. . . .

Conversely, in the present and similar fact situations, judicial interpretations of s. 15 can be informed by s. 7. To explain why, I revisit my reasons in Egan. I wrote (at para. 63):

[T]he nature, quantum and context of an economic prejudice or denial of such a benefit are important factors in determining whether the distinction from which the differing economic consequences flow is one which is discriminatory. If all other things are equal, the more severe and localized the economic consequences on the affected group, the more likely that the distinction responsible for these consequences is discriminatory within the meaning of s. 15 of the Charter.

If, as in the present case, a harm is visited uniquely upon members of an analogous or enumerated group and is severe enough to give rise to a s. 7 claim, then there will be prima facie grounds for a s. 15 claim. This conclusion must follow from the above s. 15 analysis, which places individuals’ experience of discrimination at the centre of judicial attention.

I subscribe entirely to the exhaustive analysis of s. 45 of the Quebec Charter undertaken by Robert J.A. in his dissenting opinion in the Quebec Court of Appeal. For the reasons he expresses, I conclude as he does as to a violation of s. 45 of the Quebec Charter in the present case.

As Robert J.A. states (at p. 1092): [translation] “Section 45 of the Quebec Charter thus bears a very close resemblance to article 11 of the International Covenant on Economic, Social and Cultural Rights”, which, as the Court of Appeal notes, para. 10 of the Report on the Fifth Session of the United Nations Committee on Economic, Social and Cultural Rights further specifies as containing: “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels [of subsistence needs and the provision of basic services]” (ibid., at p. 1093).

I am also in agreement that the Quebec Charter [translation] “was intended to establish a domestic law regime that reflects Canada’s international commitments” (p. 1099) and that (at p. 1101)

[translation] the quasi-constitutional right guaranteed by section 45 to social and economic measures susceptible of ensuring an acceptable standard of living includes, at the very least, the right of every person in need to receive what Canadian society objectively considers sufficient means to provide the basic necessities of life.

In the result, I agree with the result reached by each of my colleagues Bastarache, Arbour and LeBel JJ. and would allow the appeal with costs throughout.

The following are the reasons delivered by

Bastarache J. (dissenting) —

This case involves the constitutional review of a provision that existed in the regulations under Quebec’s Social Aid Act, R.S.Q., c. A-16, between 1984 and 1989. That provision fixed the maximum benefits to be received by single adults under the age of 30 at a level approximately one third that of those 30 years of age and over.

The appellant has offered this Court a number of constitutional issues to consider. She claims, on behalf of herself and all single recipients of welfare in the province of Quebec who were under the age of 30 at some point between 1985 and 1989, that the benefits provision violates the right not to be deprived of security of the person under s. 7 of the Canadian Charter of Rights and Freedoms (“Canadian Charter ” or “Charter ”), the right to equal treatment before and under the law, protected by s. 15 of the Canadian Charter , as well as the right to be provided with a decent level of support, guaranteed by s. 45 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12 (“Quebec Charter”).

In making her claim, the appellant is seeking a declaration from this Court that the provision was constitutionally invalid pursuant to s. 52 of the Constitution Act, 1982 and s. 45 of the Quebec Charter, as well as damages in the amount of $388,563,316 for benefits denied to the members of the appellant’s group, pursuant to s. 24(1) of the Canadian Charter and the joint operation of ss. 45 and 49 of the Quebec Charter, from March 1985 to July 31, 1989.

In the end, I conclude that s. 29(a) of the Regulation respecting social aid, R.R.Q. 1981, c. A-16, r. 1, violated the appellant’s s. 15 right to equal benefit of the law, and that such discrimination was not justified under s. 1.

At issue in this case is the differential treatment of social assistance recipients under 30 years of age. This differential treatment is prescribed by s. 29(a) of the Regulation respecting social aid. To properly determine whether s. 29(a) is discriminatory, it is necessary to look at the section in its historical context as well as the context of its governing legislation and regulations.

The Social Aid Act of 1984 grew out of reforms to Quebec social policy that dated back to the late 1960s. The first Social Aid Act in Quebec was brought into force in 1970. Prior to that time, Quebec social policy focussed, through a variety of legislative Acts, on the needs of those citizens who were unable to work. The guiding principle for this combination of Acts was that the more incapable one was of working, the greater one’s benefits would be. Even at that time, however, some benefits were provided to able-bodied persons. Under this regime, distinctions were made and benefits were based on whether or not one lived with one’s parents, and whether one was under 30 years of age. For instance, under the pre-1970 law, a person under 30 who lived with his or her parents would receive $30 a month, while a person who lived on his or her own would receive $55. For those 30 and over, the benefits also varied based on whether they lived in a rural or urban setting. A person 30 and over living alone in the city would be eligible for a $65 benefit, while one living with a parent would receive only $55.

The reforms of 1969-1970 sought to change the foundational principles of Quebec social policy, moving from a regime based on degree of incapacity to one based on need. Despite this emphasis on need, the distinction between those under 30 and those 30 and over was maintained and incorporated into the new legislation. Whereas the benefits of those 30 and over varied depending on whether or not they lived with their parents (from $75 to $106), those under 30 received only the $75 amount. In other words, those under 30 were deemed to be living with their parents, regardless of their actual circumstances.

Over the course of the next decade, the benefits for those 30 or over grew at a much faster rate than those for single persons under 30. Apart from several slight adjustments, the under-30 benefits remained stable, while the reforms of 1974 increased the benefits for those 30 and over by 45 percent. Other amendments made in 1975 indexed benefits for those 30 and over to the rate of inflation. By the time the under-30 benefits were indexed, in 1979, they had fallen to 36 percent of those of a similarly situated person 30 and over. In 1969, they had represented 84 percent of the full amount.

In the early 1980s, the Quebec government, responding to a deep and long-lasting crisis in the North American economy, once again considered reforming its Social Aid Act. Between 1981 and 1983, unemployment in Quebec had skyrocketed from traditional levels of around 8 percent to approximately 14 percent. Among young people, the levels of unemployment were even more pronounced. Youth unemployment in 1982 was 23 percent. The difference between youth unemployment and the rate for the general population had never been higher. During this period, the government was also concerned by a change in the composition of social assistance recipients. Between 1975 and 1983, the number of people under 30 on social assistance rose six-fold, to 85 000. This resulted in the proportion of social assistance recipients under 30 rising from 3 to 12 percent. The government was also witnessing an increase in the percentage of able-bodied recipients; it went from 41 percent in 1974 to 75 percent in 1983. At the same time, the government was seeing an increase in the number of recipients with a relatively high level of education.

In response to this grim picture, the government chose to focus on providing young people with the skills and education required for them to get jobs. At the centre of this new approach were three new programs designed to provide people on social assistance with work experience and education. These programs were, quite practically, entitled Remedial Education, Community Work and On-the-job Training. Under s. 29(a) of the new Regulation, social assistance beneficiaries under 30 would continue to receive a lower level of support (as of 1987 they received $170 per month) than their older counterparts (who were receiving $466 per month), but could have their benefits raised by participating in one of these programs.

The Remedial Education Program was designed to help social assistance recipients return to school to get their high school diploma. For admission to the program, one had to be a recipient of social assistance who had been out of school for more than nine months and who had been financially independent of his or her parents for at least six months. There is evidence that the illiterate were also excluded. While participating in a Remedial Education Program, the beneficiary would receive an increase of $196 per month in his or her social assistance benefits; the participant under 30 years of age was therefore left with $100 less than the base amount for the social assistance beneficiary 30 and over.

The On-the-job Training Program was designed to provide social assistance recipients with real job experience. A participant would be paired with a private or public organization and work for it on a full-time basis. During that time, he or she would receive specialized training. In order to qualify for this program, the potential participant must have been out of school for at least 12 months. Holders of CEGEP or university degrees were excluded from the program. This placement would last one year. During the time that they participated, social assistance beneficiaries would receive an increase of $296 in their benefits, $100 of which was paid by their employer. This increase would leave a person under 30 with the same amount of benefits per month as the base amount for a person 30 and over.

In the Community Work Program, social assistance beneficiaries were paired with community organizations or governmental agencies in order to complete simple tasks. The goal of this program was to provide more rudimentary work-related skills, such as learning to show up on time, to dress properly for work, to file documents and to answer the telephone. Priority for admission to the program was given to those who had been on social assistance for at least one year. As in the case of the On-the-job Training Program, participants received a $296 increase in their benefits, $100 of which was paid by the community organization or government agency.

While all three of these programs were ostensibly designed for social assistance recipients under 30, at least one of the programs was in fact open to some persons 30 and over, who received the same increase in their benefits when they participated. Thus, a recipient under 30 would never receive the same amount as some similarly situated persons 30 and over, since the older person would receive the same extra benefit over and above the base benefit.

It was under this legislative and regulatory framework that the claimant and class representative in this case, Ms. Gosselin, received assistance between 1984 and her 30th birthday, in 1989. Louise Gosselin was born on July 9, 1959. Her life has not been an easy one. Much of her formative years was spent moving back and forth between her mother’s home and various centres d’accueil and foster homes. Health problems, both physical and psychological, also constituted a burden. Despite her desire to finish school, her attempts always seemed to come up short.

On the job market, Ms. Gosselin’s success was not any more marked. At various times she worked as a nurse’s assistant and a waitress but, owing to physical or mental exhaustion, these jobs never lasted for long. Suicides were attempted, alcohol was abused, jobs were hard to come by, and depression ensued. Thus, from the time she was 18 Ms. Gosselin was, for the most part, reliant on social assistance — as was her mother, with whom she often lived.

In March of 1985, at the age of 25, Ms. Gosselin contacted her local CLSC (local community service centre) to find out how she might go about finding friends her own age. It was at that time that she was first informed of a program known as “Community Work”. In May 1985, she applied and was accepted into the program, working for an organization called “Réveil des assistés sociaux”. Through this program she became involved in various committees in which she learned about social assistance law and about the types of programs that were available to assist her. Her participation in the program helped her to meet people and to have more social interactions. However, the program only lasted one year. After she had completed it, she fell back onto the reduced amount and was forced to move back in with her mother. No one suggested another program to her.

Living with her mother at the age of 27 was not a comfortable situation; Ms. Gosselin hoped desperately that her luck would turn around. In October of 1986, she was forced, following a change in the building’s by-laws, to move out of her mother’s one-bedroom apartment. She lived in a variety of rooming houses, and maisons d’accueil, where she faced various types of harassment. At one point, she was able to get a job cleaning homes, but was unable to continue after she was overcome with the fear of being fired. She reluctantly moved back in with her mother.

In November of 1986, she was granted a medical certificate due to her mental state; this allowed her to collect the full benefit under the regulations. She moved out of her mother’s apartment in December of that year. A few months later, by happenstance, her father’s neighbour offered to arrange a placement for her at Revenu Travail-Quebec as part of the On-the-job Training Program. She worked there for three months, before switching placements to work at a pet store, where she had wanted to work because of her love of animals. Unfortunately, allergies quickly became a problem and she had to leave after only a couple of weeks.

At this point, she fell back onto the reduced benefit and was hospitalized at a psychiatric hospital for two months. Released from the hospital in January 1988, she was once again considered able-bodied and allocated the reduced benefit. She moved through several rooming homes, paying $170 per month for rent while receiving only $188 per month in benefits. In March of 1988, she got her own apartment, paying a rent of $235 per month. To pay for it, she cleaned homes, earning extra money. In order to make ends meet, she ate most of her meals at her mother’s house, but sometimes had to resort to soup kitchens. In May of 1988, she hurt her back and was granted a medical certificate.

In September of 1988, she enrolled in the Remedial Education Program and went back to school. While this raised her benefits to $100 less than the base amount, she was terrified that she would not succeed and would be forced back onto the reduced rate. After paying her rent and phone, she was left with only $150 per month, which she had to stretch scrupulously in order to buy food and bus tickets. Finally, in July of 1989, she turned 30 and was allocated the full social assistance benefit. When that benefit was added to the money she received for participating in the Remedial Education Program, her total monthly benefits rose to $739 per month.

Social Aid Act, R.S.Q., c. A-16, as amended by An Act to amend the Social Aid Act, S.Q. 1984, c. 5 (repealed by An Act respecting income security, S.Q. 1988, c. 51, s. 92)