Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84

Louise Gosselin Appellant

v.

The Attorney General of Quebec Respondent

and

The Attorney General for Ontario,

the Attorney General for New Brunswick,

the Attorney General of British Columbia,

the Attorney General for Alberta,

Rights and Democracy (also known as International

Centre for Human Rights and Democratic Development),

Commission des droits de la personne et des droits de la jeunesse,

the National Association of Women and the Law (NAWL),

the Charter Committee on Poverty Issues (CCPI) and

the Canadian Association of Statutory Human Rights

Agencies (CASHRA) Interveners

Indexed as: Gosselin v. Quebec (Attorney General)

Neutral citation: 2002 SCC 84.

File No.: 27418.

2001: October 29; 2002: December 19.

Present: McLachlin C.J. and L'Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for quebec

Constitutional law — Charter of Rights — Equality — Welfare — Regulation providing for reduced welfare benefits for individuals under 30 not participating in training or work experience employment programs — Whether Regulation infringed right to equality — Canadian Charter of Rights and Freedoms, s. 15 — Regulation respecting social aid, R.R.Q. 1981, c. A‑16, r. 1, s. 29(a).

Constitutional law — Charter of Rights — Fundamental justice — Security of person — Welfare — Regulation providing for reduced welfare benefits for individuals under 30 not participating in training or work experience employment programs — Whether Regulation infringed right to security of person — Canadian Charter of Rights and Freedoms, s. 7 — Regulation respecting social aid, R.R.Q. 1981, c. A‑16, r. 1, s. 29(a).

Civil rights — Economic and social rights — Financial assistance — Regulation providing for reduced welfare benefits for individuals under 30 not participating in training or work experience employment programs — Whether Regulation infringed right to measures of financial assistance — Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, s. 45 — Regulation respecting social aid, R.R.Q. 1981, c. A‑16, r. 1, s. 29(a).

In 1984 the Quebec government created a new social assistance scheme. Section 29(a) of the Regulation respecting social aid, made under the 1984 Social Aid Act, set the base amount of welfare payable to persons under the age of 30 at roughly one third of the base amount payable to those 30 and over. Under the new scheme, participation in one of three education or work experience programs allowed people under 30 to increase their welfare payments to either the same as, or within $100 of, the base amount payable to those 30 and over. In 1989 this scheme was replaced by legislation that no longer made this age‑based distinction.

The appellant, a welfare recipient, brought a class action challenging the 1984 social assistance scheme on behalf of all welfare recipients under 30 subject to the differential regime from 1985 to 1989. The appellant argued that the 1984 social assistance regime violated ss. 7 and 15(1) of the Canadian Charter of Rights and Freedoms and s. 45 of the Quebec Charter of Human Rights and Freedoms. She requested that s. 29(a) of the Regulation be declared to have been invalid from 1987 (when it lost the protection of the notwithstanding clause) to 1989, and that the government of Quebec be ordered 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 Superior Court dismissed the class action. The Court of Appeal upheld the decision.

Held (L’Heureux‑Dubé, Bastarache, Arbour and LeBel JJ. dissenting): The appeal should be dismissed. Section 29(a) of the Regulation was constitutional.

(1) Per McLachlin C.J. and Gonthier, Iacobucci, Major and Binnie JJ.: Section 29(a) of the Regulation did not infringe s. 15 of the Canadian Charter.

Per L’Heureux‑Dubé, Bastarache, Arbour and LeBel JJ. (dissenting): Section 29(a) of the Regulation infringed s. 15 of the Canadian Charter and the infringement was not justifiable under s. 1 of the Charter.

(2) Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie and LeBel JJ.: Section 29(a) of the Regulation did not infringe s. 7 of the Canadian Charter.

Per L’Heureux‑Dubé and Arbour JJ. (dissenting): Section 29(a) of the Regulation infringed s. 7 of the Canadian Charter and the infringement was not justifiable under s. 1 of the Charter.

(3) Per McLachlin C.J. and Gonthier, Iacobucci, Major, Binnie and LeBel JJ.: Section 29(a) of the Regulation did not violate s. 45 of the Quebec Charter.

Per Bastarache and Arbour JJ.: There is no need to determine whether s. 29(a) of the Regulation violated s. 45 of the Quebec Charter since the s. 45 right is unenforceable in the circumstances of this case.

Per L’Heureux‑Dubé J. (dissenting): Section 29(a) of the Regulation violated s. 45 of the Quebec Charter.

Per McLachlin C.J. and Gonthier, Iacobucci, Major and Binnie JJ.: The differential welfare scheme did not breach s. 15 of the Charter. The appellant has failed to discharge her burden of proof on the third branch of the Law test, as 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.

An examination of the four contextual factors set out in Law does not support a finding of discrimination and denial of human dignity. First, this is not a case where members of the complainant group suffered from pre‑existing disadvantage and stigmatisation on the basis of their age. Age‑based distinctions are a common and necessary way of ordering our society, and do not automatically evoke a context of pre‑existing disadvantage suggesting discrimination and marginalization. Unlike people of very advanced age who may be presumed to lack abilities that they in fact possess, young people do not have a similar history of being undervalued.

Second, the record in this case does not establish a lack of correspondence between the scheme and the actual circumstances of welfare recipients under 30. 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. The deep recession in the early 1980s, tightened eligibility requirements for federal unemployment insurance benefits, and a surge in the number of young people entering the job market caused an unprecedented increase in the number of people capable of working who ended up on the welfare rolls. The situation of young adults was particularly dire. The government’s short‑term purpose in adopting 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 to get permanent jobs. 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 to integrate into the workforce and become self‑sufficient. The regime constituted an affirmation of young people’s potential rather than a denial of their dignity. From the perspective of a reasonable person in the claimant’s position, the legislature’s decision to structure its social assistance programs to give young people the incentive to participate in programs specifically designed to provide them with training and experience was supported by logic and common sense. The allegation that there were not enough places in the programs to meet the needs of all welfare recipients under 30 who wanted to participate was rejected by the trial judge as unsubstantiated by the evidence. Absent demonstrated error, it is not open to this Court to revisit the trial judge’s conclusion. Likewise, we cannot infer disparity between the purpose and effect of the scheme and the situation of those affected from the mere failure of government to prove that the assumptions upon which it proceeded were correct. Provided they are not based on arbitrary and demeaning stereotypes, the legislator is entitled to proceed on informed general assumptions that correspond, even if not perfectly, to the actual circumstances of the affected group. These considerations figure in assessing whether a reasonable person in the claimant’s position would experience the legislation as a harm to her dignity.

Third, the “ameliorative purpose” contextual factor is neutral in the present case, since the scheme was not designed to improve the condition of another group. As a general contextual matter, a reasonable person in the appellant’s position would take the fact that the Regulation was aimed at ameliorating the situation of welfare recipients under 30 into account in determining whether the scheme treated under‑30s as less worthy of respect and consideration than those 30 and over.

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. Despite possible short‑term negative impacts on the economic circumstances of some welfare recipients under 30 as compared to those 30 and over, the regime sought to improve the situation of people in this group and enhance their dignity and capacity for long‑term self‑reliance. This points not to discrimination but to concern for the situation of welfare recipients under 30.

The factual record is insufficient to support the appellant’s claim that the state deprived her of her s. 7 right to security of the person by providing her with a lower base amount of welfare benefits, in a way that violated the principles of fundamental justice. The dominant strand of jurisprudence on s. 7 sees its purpose as protecting life, liberty and security of the person from deprivations that occur as a result of an individual’s interaction with the justice system and its administration. The administration of justice can be implicated in a variety of circumstances and does not refer exclusively to processes operating in the criminal law. The meaning of the administration of justice and s. 7 should be allowed to develop incrementally, as heretofore unforeseen issues arise for consideration. It is thus premature to conclude that s. 7 applies only in an adjudicative context. In the present case, the issue is whether s. 7 ought to apply despite the fact that the administration of justice is plainly not implicated. Thus far, the jurisprudence does not suggest that s. 7 places positive obligations on the state. Rather, s. 7 has been interpreted as restricting the state’s ability to deprive people of their right to life, liberty and security of the person. Such a deprivation does not exist here and the circumstances of this case do not warrant a novel application of s. 7 as the basis for a positive state obligation to guarantee adequate living standards.

There is no breach of the right to measures of financial assistance and to social measures provided for by law, susceptible of ensuring an acceptable standard of living as protected by s. 45 of the Quebec Charter of Human Rights and Freedoms. Although s. 45 requires the government to provide social assistance measures, it places the adequacy of the particular measures adopted beyond the reach of judicial review. The language of s. 45 mandates only that the government be able to point to measures susceptible of ensuring an acceptable standard of living, without having to defend the wisdom of its enactments.

Per Bastarache J. (dissenting): Section 29(a) of the Regulation did not infringe s. 7 of the Charter. The threat to the appellant’s security of the person was not related to the administration of justice, nor was it caused by any state action, nor did the underinclusive nature of the legislation substantially prevent or inhibit the appellant from protecting her own security. The right to security of the person is protected by s. 7 only insofar as the claimant is deprived of this right by the state, in a manner contrary to the principles of fundamental justice. The strong relationship between s. 7 and the role of the judiciary leads to the conclusion that some relationship to the judicial system or its administration must be engaged before s. 7 may be applied. In this case, there is no link between the harm to the appellant’s security of the person and the judicial system or its administration. Although the required link to the judicial system does not mean that s. 7 is limited to purely criminal or penal matters, it signifies, at the very least, that some determinative state action, analogous to a judicial or administrative process, must be shown to exist in order for one to be deprived of a s. 7 right. The threat to the appellant’s security 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 to receive more assistance. While underinclusive legislation may, in unique circumstances, substantially impact the exercise of a constitutional freedom, the exclusion of people under 30 from the full, unconditional benefit package did not render them substantially incapable of exercising their right to security of the person without government intervention. The appellant failed to demonstrate that there existed an inherent difficulty for young people under 30 to protect their right to security of the person without government intervention. Nor has the existence of a higher base benefit for recipients 30 and over been shown to reduce the potential of young people to exercise their right to security of the person. It has not been demonstrated that the legislation, by excluding young people, reduced their security any more than it would have already been given market conditions.

Section 29(a) of the Regulation infringed s. 15 of the Charter. Although age‑based distinctions are often justified due to the fact that at different ages people are capable of different things, age is included as a prohibited ground of discrimination. Age, although constantly changing, is a personal characteristic that at any given moment one can do nothing to alter. Age falls squarely within the concern of the equality provision that people not be penalized for characteristics they either cannot change or should not be asked to change. The grounds of discrimination enumerated in s. 15 function as legislative markers of suspect grounds associated with stereotypical or otherwise, discriminatory decision making. Legislation that draws a distinction on such grounds — including age — is suspect because it often leads to discrimination and denial of substantive equality.

Applying the Law test, the fundamental question that needs to be dealt with here is whether the distinction created by s. 29(a) is indicative that the government treated social assistance recipients under 30 in a way that is respectful of their dignity as members of society. This question is to be assessed from the perspective of a reasonable person in the claimant’s circumstances having regard to four non‑exhaustive contextual factors. While it is not enough for the appellant simply to claim that her dignity has been violated, a demonstration that there is a rational foundation for her experience of discrimination will be sufficient to ground the s. 15 claim.

First, with respect to the pre‑existing disadvantage factor, we are not dealing in this case with a general age distinction but rather with one applicable within a particular social group, welfare recipients. Within this group the record makes it clear that it was not easier for persons under 30 to get jobs as opposed to their elders. The distinction was based on the stereotypical view that young welfare recipients suffer no special economic disadvantages. This view was not grounded in fact and was based on old assumptions regarding the employability of young people. Although there is no compelling evidence that younger welfare recipients, as compared to all welfare recipients, have been traditionally marginalized by reason of their age, a contextual analysis requires us to recognize that the precarious, vulnerable position of welfare recipients in general lends weight to the argument that a distinction that affects them negatively may pose a greater threat to their human dignity.

Second, there was a lack of correspondence between the differential welfare scheme and the actual needs, capacities and circumstances of welfare recipients under the age of 30. Based on the unverifiable presumption that people under 30 had better chances of employment and lesser needs, the program delivered to those people two‑thirds less than what the government viewed as the basic survival amount, drawing its distinction on a characteristic over which those people had no control. Substantive equality permits differential treatment only where there is a genuine difference. The bright line drawn at 30 appears to have had little, if any, relationship to the real situation of younger people. The dietary and housing costs of people under 30 are no different from those of people 30 and over. The presumption adopted by the government that all persons under 30 received assistance from their family was unfounded. By relying on a distinction that had existed decades earlier and that did not take into account the actual circumstances of welfare recipients under 30, the legislation appears to have shown little respect for the value of those recipients as individual human beings. It created substandard living conditions for them on the sole basis of their age. Where persons experience serious detriment as a result of a distinction and the evidence shows that the presumptions guiding the legislature were factually unsupported, it is not necessary to demonstrate actual stereotyping, prejudice or other discriminatory intention. Moreover, a positive intention cannot save the regulation. At this stage of the Law analysis, the legislature’s intention is much less important than the real effects of the scheme on the claimant. Treatment of legislative purpose under s. 15 must not undermine or replace the analysis that will be undertaken when applying s. 1 of the Charter.

Third, the ameliorative purpose factor is not useful in determining whether the differential treatment in this appeal was discriminatory. The legislature has differentiated between the appellant’s group and other welfare recipients based on what it claims is an effort to ameliorate the situation of the very group in question. Groups that are the subject of an inferior differential treatment based on an enumerated or analogous ground are not treated with dignity just because the government claims that the detrimental provisions are for their own good.

Finally, the differential treatment had a severe effect on an extremely important interest. The effect of the distinction in this case is that the appellant and others like her had their income set at only one third of what the government deemed to be the bare minimum for the sustainment of life. The government’s argument that it was offering skills to allow young persons to enter into the workforce, thereby reinforcing their dignity and self‑worth, neglects the fact that the reason why these young people were not in the labour force was not exclusively that their skills were too low, or that they were undereducated, but that there were no jobs to be had. The appellant has shown that in certain circumstances, and in her circumstances in particular, there were occasions when the effect of the differential treatment was such that beneficiaries under 30 could objectively be said to have experienced government treatment that failed to respect them as full persons. Any reading of the evidence indicates that it was highly improbable that a person under 30 could at all times be registered in a program and therefore receive the full subsistence amount. When between programs, individuals like the appellant were forced to survive on far less than the recognized minimum necessary for basic subsistence received by those 30 and over. Even when participating in a program, the fear of being returned to the reduced level of support dominated the appellant’s life. Recipients 30 and over did not experience these consequences of the scheme. For the purposes of s. 15, what made the appellant’s experience demeaning was the fact that she was placed in a position that the government itself admits is a precarious and unliveable one. The distinction in treatment was made simply on the basis of age, not of need, opportunity or personal circumstances, and was not respectful of the basic human dignity of welfare recipients under the age of 30.

The government has not discharged its burden of proving that the infringement of s. 15 is a reasonable limit that is demonstrably justifiable in a free and democratic society. Although a certain degree of deference should be accorded in reviewing social policy legislation of this type, the government does not have carte blanche to limit rights. The distinction created by s. 29(a) of the Regulation served two pressing and substantial objectives: (1) to avoid attracting young adults to social assistance, and (2) to facilitate integration into the workforce by encouraging participation in the employment programs. There is a rational connection between the different treatment of those under 30 and the objective of encouraging their integration into the workforce. It is logical and reasonable to suppose that young people are at a different stage in their lives than those 30 and over, that it is more important, and perhaps more fruitful, to encourage them to integrate into the workforce, and that in order to encourage such behaviour, a reduction in basic benefits could be expected to work. Even according the government a high degree of deference, however, the respondent has failed to demonstrate that the provision in question constituted a means of achieving the legislative objective that was reasonably minimally impairing of the appellant’s equality rights. Other reasonable alternatives to achieve the objective were available. To begin with, the level of support provided to those under 30 could have been increased. There is no evidence to support the government’s contention that such an approach would have prevented it from achieving the objective of integrating young people into the workforce. In addition, the 1989 reforms which made the programs universally conditional could have been implemented earlier. The programs themselves also suffered from several significant shortcomings and only 11 percent of social assistance recipients under the age of 30 were in fact enrolled in the employment programs that allowed them to receive the base amount allocated to beneficiaries 30 years of age and over. One major branch of the scheme left participants $100 short of the base benefit. Likewise, waiting periods, prioritizations and admissibility criteria signified that the programs were not designed in such a way as to ensure that there would always be programs available to those who wanted to participate. In addition to the problems with the design of the programs, hurdles in their implementation presented young recipients with further barriers. Delays flowing from meetings with aid workers, evaluation interviews and finding space within the appropriate program signified that young welfare recipients would most likely spend some time on the reduced benefit. Finally, even though 85 000 single people under 30 years of age were on social assistance, the government at first made only 30 000 program places available. While the government did not have to prove that it had 85 000 empty chairs waiting in classrooms and elsewhere, the very fact that it was expecting such low levels of participation brings into question the degree to which the distinction in s. 29(a) of the Regulation was geared towards improving the situation of those under 30, as opposed to simply saving money.

The differential treatment had severe deleterious effects on the equality and self‑worth of the appellant and those in her group which outweighed the salutary effects of the scheme in achieving the stated government objective. The government failed to demonstrate that the reduction in benefits contributed or would reasonably be expected to contribute to the integration of young social assistance beneficiaries into the workplace. When the potential deleterious effects of the legislation are so apparent, it is not asking too much of the government to craft its legislation more carefully.

The appropriate remedy in this case is to declare s. 29(a) of the Regulation invalid under s. 52(1) of the Constitution Act, 1982. Had the legislation still been in force, suspension of the declaration of invalidity for a period of 18 months to allow the legislature to implement changes to the legislation would have been appropriate. The appellant’s request for an order for damages pursuant to s. 24(1) of the Charter should be dismissed. Where a provision is struck down under s. 52, a retroactive s. 24(1) remedy will not generally be available. Moreover, the facts of this case do not allow for such a result. First, a s. 24(1) remedy is more difficult in this case because it involves a class action. It would be impossible for this Court to determine the precise amount that was owed to each individual in the class. Second, the significant costs that would be incurred by the government were it required to pay damages must be considered. While a consideration of expenses might not be relevant to the substantive Charter analysis, it is relevant to the determination of the remedy. Requiring the government to pay out nearly half a billion dollars would have a significant impact on the government’s fiscal situation, and potentially on the general economy of the province.

Although on its face, s. 45 of the Quebec Charter of Human Rights and Freedoms creates some form of positive right to a minimal standard of living, in this case, that right is unenforceable. The supremacy provision in s. 52 of the Quebec Charter clearly indicates that the courts have no power to declare any portion of a law invalid due to a conflict with s. 45. Moreover, the appellant is not entitled to damages pursuant to s. 49 of the Quebec Charter. In order to substantiate a s. 49 claim against the government for having drafted legislation that violates a right guaranteed by the Quebec Charter, one would have to demonstrate that the legislature has breached a particular standard of care in drafting the legislation. It is unlikely that the government could, under s. 49, be held responsible for having simply drafted faulty legislation.

Per LeBel J. (dissenting): Section 29(a) of the Regulation, when taken in isolation or considered in light of all employability programs, discriminated against young adults. The distinction based on age did not reflect either the needs or the abilities of social aid recipients under 30 years of age. The ordinary needs of young people are not so different from the needs of their elders as to justify such a pronounced discrepancy between the two groups' benefits. Because the distinction made by the social aid scheme was justified by the fact that young people are able to survive a period of economic crisis better, this distinction perpetuated a stereotypical view of young people's situation on the labour market. By trying to combat the pull of social assistance, for the “good” of the young people themselves who depended on it, the distinction perpetuated another stereotypical view, that a majority of young social assistance recipients choose to freeload off society permanently. Young social assistance recipients in the 1980s certainly did not latch onto social assistance out of laziness; they were stuck receiving welfare because there were no jobs available. Even if the government could validly encourage young people to work, the approach adopted discriminated between social aid recipients under 30 years of age and those 30 years of age and over, for no valid reason. The defects in the scheme, together with the preconceived ideas that underpinned it, lead to the conclusion that s. 29(a) of the Regulation infringed the equality right guaranteed by s. 15 of the Charter. For the reasons given by Bastarache J., s. 29(a) of the Regulation is not saved by s. 1 of the Charter.

Although the appellant failed to establish a violation of s. 7 of the Charter in this case, for the reasons stated by the majority, it is not appropriate, at this point, to rule out the possibility that s. 7 might be invoked in circumstances unrelated to the justice system.

Section 45 of the Quebec Charter does not confer an independent right to an acceptable standard of living. That section protects only a right of access to social measures for anyone in need. Although the incorporation of social and economic rights into the Quebec Charter gives them a new dimension, it does not make them legally binding. A majority of the provisions in the chapter on “Economic and Social Rights” contain a reservation indicating that the exercise of the rights they protect depends on the enactment of legislation. In the case of s. 45, the fact that anyone in need is entitled not to measures to ensure him or her an acceptable standard of living, but to measures susceptible of ensuring him or her that standard of living, suggests that the legislature did not intend to give the courts the power to review the adequacy of the measures adopted, or to usurp the role of the legislature in that regard. The expression “provided for by law”, when interpreted in light of the other provisions of the chapter on economic and social rights, confirms that the right in s. 45 is protected only to the extent provided for by law. Section 45 is not, however, without any obligational content. Because s. 10 of the Quebec Charter does not create an independent right to equality, the right of access to measures of financial assistance and social measures without discrimination would not be guaranteed by the Quebec Charter were it not for s. 45.

Per Arbour J. (dissenting): Section 29(a) of the Regulation infringed s. 7 of the Charter by depriving those to whom it applied of their right to security of the person. Section 7 imposes a positive obligation on the state to offer basic protection for the life, liberty and security of its citizens.

The barriers that are traditionally said to preclude a positive claim against the state under s. 7 are unconvincing. The fact that a right may have some economic value is an insufficient reason to exclude it from the ambit of s. 7. Economic rights that are fundamental to human life or survival are not of the same ilk as corporate‑commercial economic rights. The right to a minimum level of social assistance is intimately intertwined with considerations related to one’s basic health and, at the limit, even one’s survival. These rights can be readily accommodated under the s. 7 rights to “life, liberty and security of the person” without the need to constitutionalize “property” rights or interests. Nor should the interest claimed in this case be ruled out because it fails to exhibit the characteristics of a “legal right”. The reliance on the subheading “Legal Rights” as a way of delimiting the scope of s. 7 protection has been supplanted by a purposive and contextual approach to the interpretation of constitutionally protected rights. New kinds of interests, quite apart from those engaged by one’s dealings with the justice system and its administration, have been asserted and found to be deserving of s. 7 protection. To continue to insist upon the restrictive significance of the placement of s. 7 within the “Legal Rights” portion of the Charter would be to freeze constitutional interpretation in a manner inconsistent with the vision of the Constitution as a “living tree”. Furthermore, in order to ground a s. 7 claim, it is not necessary that there be some affirmative state action interfering with life, liberty or security of the person. In certain cases, s. 7 can impose on the state a duty to act where it has not done so. A requirement of positive state interference is not implicit in the use of the phrase “principles of fundamental justice” or the concept of “deprivation” in s. 7. The concept of deprivation is sufficiently broad to embrace withholdings that have the effect of erecting barriers in the way of the attainment of some object. The context in which s. 7 is found within the Charter favours a conclusion that it can impose on the state a positive duty to act. Since illustrations of the “principles of fundamental justice” found in ss. 8 to 14 of the Charter entrench positive rights, it is to be expected that s. 7 rights also contain a positive dimension. Recent case law implies that mere state inaction will on occasion be sufficient to engage s. 7’s protection. Finally, the concern that positive claims against the state are not justiciable does not present a barrier in the present case. While it may be true that courts are ill‑equipped to decide policy matters concerning resource allocation, this does not support the conclusion that justiciability is a threshold issue barring the consideration of the substantive claim in this case. This case raises the different question of whether the state is under a positive obligation to provide basic means of subsistence to those who cannot provide for themselves. The role of the courts as interpreters of the Charter and guardians of its fundamental freedoms requires them to adjudicate such rights‑based claims. These claims can be dealt with here without addressing the question of how much expenditure by the state is necessary in order to secure the right claimed, a question which may not be justiciable.

A textual, purposive or contextual approach to the interpretation of s. 7 mandates the conclusion that the s. 7 rights of life, liberty and security of the person include a positive dimension. The grammatical structure of s. 7 seems to indicate that it protects two rights: a right, set out in the section’s first clause, to “life, liberty and security of the person”; and a right, set out in the second clause, not to be deprived of life, liberty or security of the person except in accordance with the principles of fundamental justice. As a purely textual matter, the fact that the first clause involves some greater protection than that accorded by the second clause seems beyond reasonable objection. There are at least two reasonable interpretations as to what this additional protection might consist of: the first clause may be interpreted as providing for a completely independent and self‑standing right, which can be violated even absent a breach of fundamental justice, but requiring a s. 1 justification in the event of such violation; another possible interpretation focuses on the absence of the term “deprivation” in the first clause and suggests that it is at most in connection with the right afforded in the second clause, if at all, that there must be positive state action to ground a violation. Either interpretation demands recognition of the sort of interest claimed by the appellant in this case and it is not necessary to decide which one is to be preferred.

A purposive interpretation of s. 7 as a whole requires that all the rights embodied in it be given meaning. Reducing s. 7 only to the second clause leaves no useful meaning to the right to life. Such an interpretation of s. 7 threatens not only the coherence, but also the purpose of the Charter as a whole. In order to avoid this result, it must be recognized that the state can potentially infringe the right to life, liberty and security of the person in ways that go beyond violating the right contained in the second clause of s. 7. Section 7 must be interpreted as protecting something more than merely negative rights, otherwise the s. 7 right to life will be reduced to the function of guarding against capital punishment — a possibly redundant function in light of s. 12 of the Charter — with all of the intolerable conceptual difficulties attendant upon such an interpretation.

With respect to the contextual analysis, positive rights are an inherent part of the Charter’s structure. The Charter compels the state to act positively to ensure the protection of a significant number of rights. Moreover, justification under s. 1 which invokes the values that underpin the Charter as the only suitable basis for limiting those rights, confirms that Charter rights contain a positive dimension. Constitutional rights are not simply a shield against state interference. They place a positive obligation on the state to arbitrate competing demands arising from the liberty and rights of others. Thus if one’s right to life, liberty and security of the person can be limited under s. 1 by the need to protect the life, liberty or security of others, it can only be because the right is not merely a negative right but a positive one, calling for the state not only to abstain from interfering with life, liberty and security of the person but also to actively secure that right in the face of competing demands.

The interest claimed in this case falls within the range of entitlements that the state is under a positive obligation to provide under s. 7. Underinclusive legislation results in a violation of the Charter outside the context of s. 15 where: (1) the claim is grounded in a fundamental Charter right or freedom rather than in access to a particular statutory regime; (2) a proper evidentiary foundation demonstrates that exclusion from the regime constitutes a substantial interference with the exercise and fulfilment of a protected right; and (3) it is determined that the state can truly be held responsible for the inability to exercise the right or freedom in question. Here, exclusion from the statutory regime effectively excludes the claimants from any real possibility of having their basic needs met. It is not exclusion from the particular statutory regime that is at stake but the claimants’ fundamental rights to security of the person and life itself, which exist independently of any statutory enactment. The evidence demonstrates that the physical and psychological security of young adults was severely compromised during the period at issue and that the legislated exclusion of young adults from the full benefits of the social assistance regime substantially interfered with their fundamental right to security of the person and perhaps even their right to life. Freedom from state interference with bodily or psychological integrity is of little consolation to those who are faced with a daily struggle to meet their most basic bodily and psychological needs. In such cases, one can reasonably conclude that positive state action is what is required in order to breathe purpose and meaning into their s. 7 guaranteed rights. The state can properly be held accountable for the claimants’ inability to exercise their s. 7 rights. The issue here is simply whether the state is under an obligation of performance to alleviate the claimants’ condition. The claimants need not establish that the state can be held causally responsible for the socio‑economic environment in which their s. 7 rights were threatened, nor do they need to establish that the government’s inaction worsened their plight. The legislation is directed at providing supplemental aid to those who fall below a subsistence level — an interest which s. 7 was meant to protect. Legislative intervention aimed at providing for essential needs touching on the personal security and survival of indigent members of society is sufficient to satisfy whatever “minimum state action” requirement might be necessary to engage s. 32 of the Charter. By enacting the Social Aid Act, the Quebec government triggered a state obligation to ensure that any differential treatment or underinclusion in the provision of these essential needs did not run afoul of the fundamental rights guaranteed by the Charter, and in particular by s. 7. It failed to discharge this obligation. As the protection of positive rights is grounded in the first clause of s. 7, which provides a free‑standing right to life, liberty and security of the person, and as the violation here consists of inaction and does not bring the justice system into motion, it is not necessary to determine whether the violation of the appellant’s s. 7 rights was in accordance with the principles of fundamental justice.

The violation of the claimants’ right to life, liberty and security of the person cannot be saved by s. 1 of the Charter. Although preventing the attraction of young adults to social assistance and facilitating their integration into the workforce might satisfy the “pressing and substantial objective” requirement of the Oakes test, it is difficult to accept that denial of the basic means of subsistence is rationally connected to promoting the long‑term liberty and inherent dignity of young adults. Moreover, there is agreement with Bastarache J.’s finding that those means were not minimally impairing in a number of ways.

Section 29(a) of the Regulation infringed s. 15(1) of the Charter. On the s. 15 issue, there is general agreement with Bastarache J.’s analysis and conclusions. The infringement could not be saved by s. 1 for substantially the same reasons discussed in relation to the s. 7 violation.

There is also agreement with Bastarache J. that s. 45 of the Quebec Charter establishes a positive right to a minimal standard of living but that, in the circumstances of this case, this right cannot be enforced under s. 52 or s. 49.

Finally, there is agreement with Bastarache J. as to the appropriate remedy.

Per L’Heureux‑Dubé J. (dissenting): There is agreement with Bastarache and LeBel JJ. that s. 29(a) of the Regulation violated s. 15 of the Charter. Presumptively excluding groups that clearly fall within an enumerated category from s. 15’s protection does not serve the purposes of the equality guarantee. The enumerated ground of age is a permanent marker of suspect distinction. Any attempt to exclude youth from s. 15 protection misplaces the focus of a s. 15 inquiry, which is properly on the effects of discrimination and not on the categorizing of grounds. Furthermore, the perspective of the legislature should not be incorporated in a s. 15 analysis. An intention to discriminate is not necessary for a finding of discrimination. Conversely, the fact that a legislature intends to assist the group or individual adversely affected by the distinction does not preclude a finding of discrimination.

Section 29(a) clearly draws a distinction on an enumerated ground. The only issue is whether s. 29(a) denies human dignity in purpose or effect. Harm to dignity results from infringements of individual interests including physical and psychological integrity. Such infringements undermine self‑respect and self‑worth and communicate to the individual that he or she is not a full member of Canadian society. Stereotypes are not needed to find a distinction discriminatory. Here, the contextual factors listed in Law support a finding of discrimination. In particular, the severe harm suffered by the claimant to a fundamental interest, as a result of a legislative distinction drawn on an enumerated or analogous ground, was sufficient for a court to conclude that the distinction was discriminatory. Because she was under 30, the claimant was exposed to the risk of severe poverty. She lived at times below the government’s own standard of bare subsistence. Her psychological and physical integrity were breached. A reasonable person in the claimant’s position, apprised of all the circumstances, would have perceived that her right to dignity had been infringed as a sole consequence of being under 30 years of age, a condition over which she had no control, and that she had been excluded from full participation in Canadian society. With respect to the other contextual factors, a legislative scheme which causes individuals to suffer severe threats to their physical and psychological integrity as a result of a personal characteristic which cannot be changed prima facie does not adequately take into account the needs, capacity or circumstances of the individual or group in question. An ameliorative purpose, as a contextual factor, must be for the benefit of a group less advantaged than the one targeted by the distinction. There is no such group in the present case. Finally, since unemployment was far higher among young adults as compared to the general active population, and an unprecedented number of young people were entering the job market at a time when federal social assistance programs were faltering, it is difficult to conclude that they did not suffer from a pre‑existing disadvantage. Disadvantage need not be shared by all members of a group for there to be a finding of discrimination, if, as in this case, it can be shown that only members of that group suffered the disadvantage. The breach of s. 15 was not justified. On this point, there is agreement with Bastarache J.’s s. 1 analysis.

For the reasons given by Arbour J., s. 29(a) of the Regulation violated s. 7 of the Charter. Although governments should in general make policy implementation choices, other actors may aid in determining whether social programs are necessary. A claimant should be able to establish with adequate evidence what would constitute a minimum level of assistance. For the reasons given by the dissenting judge in the Court of Appeal and substantially for the reasons expressed by Arbour J., the s. 7 violation was not justified.

For the reasons given by the dissenting judge in the Court of Appeal, s. 29(a) of the Regulation infringes s. 45 of the Quebec Charter.

Cases Cited

By McLachlin C.J.

Applied: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; referred to: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; 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 v. Alberta, [1998] 1 S.C.R. 493; Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28; Cleburne v. Cleburne Living Centre, Inc., 473 U.S. 432 (1985); Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; Moge v. Moge, [1992] 3 S.C.R. 813; Egan v. Canada, [1995] 2 S.C.R. 513; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44; Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925; R. v. Morgentaler, [1988] 1 S.C.R. 30; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Edwards v. Attorney‑General for Canada, [1930] A.C. 124; Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158.

By Bastarache J. (dissenting)

Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Schachter v. Canada, [1992] 2 S.C.R. 679; Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94; R. v. Morgentaler, [1988] 1 S.C.R. 30; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44; Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Haig v. Canada, [1993] 2 S.C.R. 995; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; Egan v. Canada, [1995] 2 S.C.R. 513; Miron v. Trudel, [1995] 2 S.C.R. 418; Vriend v. Alberta, [1998] 1 S.C.R. 493; Lavoie v. Canada, [2002] 1 S.C.R. 769, 2002 SCC 23; Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 2002 SCC 68; R. v. Oakes, [1986] 1 S.C.R. 103; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, 2001 SCC 46; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345; Quebec (Public Curator) v. Syndicat national des employés de l'hôpital St‑Ferdinand, [1996] 3 S.C.R. 211.

By LeBel J. (dissenting)

Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Lévesque v. Québec (Procureur général), [1988] R.J.Q. 223; Lecours v. Québec (Ministère de la Main‑d’œuvre et de la Sécurité du revenu), J.E. 90‑638; Johnson v. Commission des affaires sociales, [1984] C.A. 61; Commission des droits de la personne du Québec v. Commission scolaire de St‑Jean‑sur‑Richelieu, [1991] R.J.Q. 3003, aff’d [1994] R.J.Q. 1227; Desroches v. Commission des droits de la personne du Québec, [1997] R.J.Q. 1540.

By Arbour J. (dissenting)

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44; Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Therens, [1985] 1 S.C.R. 613; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Young v. Young, [1993] 4 S.C.R. 3; R. v. S. (R.J.), [1995] 1 S.C.R. 451; Vriend v. Alberta, [1998] 1 S.C.R. 493; Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94; Schachter v. Canada, [1992] 2 S.C.R. 679; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; R. v. Oakes, [1986] 1 S.C.R. 103; Attorney General of Quebec v. Quebec Association of Protestant School Boards, [1984] 2 S.C.R. 66; Plantation Indoor Plants Ltd. v. Attorney General of Alberta, [1985] 1 S.C.R. 366; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Mills, [1999] 3 S.C.R. 668; R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; Smith v. Jones, [1999] 1 S.C.R. 455; Haig v. Canada, [1993] 2 S.C.R. 995; Native Women’s Assn. of Canada v. Canada, [1994] 3 S.C.R. 627.

By L’Heureux‑Dubé J. (dissenting)

Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; 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; Miron v. Trudel, [1995] 2 S.C.R. 418; 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; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Egan v. Canada, [1995] 2 S.C.R. 513; Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94; 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; Lavoie v. Canada, [2002] 1 S.C.R. 769, 2002 SCC 23; R. v. Oakes, [1986] 1 S.C.R. 103; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37; Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625; 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; Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 2002 SCC 68; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Tran, [1994] 2 S.C.R. 951; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46.

Statutes and Regulations Cited

Act respecting income security, S.Q. 1988, c. 51, s. 92.

Act respecting the Constitution Act, 1982, R.S.Q., c. L‑4.2, s. 1.

Act to amend the Social Aid Act, S.Q. 1984, c. 5, ss. 1, 2, 4, 5.

Canadian Bill of Rights, R.S.C. 1985, App. III.

Canadian Charter of Rights and Freedoms, ss. 1, 2(d), 3, 7, 8 to 14, 11(b), (d), (f), 12, 15, 23, 24(1), 33(1), (3).

Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 9.1, 10, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 52, 53.

Code of Civil Procedure, R.S.Q., c. C‑25, arts. 1002, 1003(a).

Constitution Act, 1867, ss. 23, 29, 99.

Constitution Act, 1982, ss. 38, 52.

Human Rights Code, R.S.B.C. 1996, c. 210.

Human Rights Code, R.S.O. 1990, c. H.19, ss. 5(1), 10(1) “age”.

International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, Art. 11(1).

Regulation respecting social aid, R.R.Q. 1981, c. A‑16, r. 1, ss. 23 [am. (1981) 113 O.G. II 4118, s. 1; am. (1986) 118 O.G. II 336, s. 1; am. (1986) 118 O.G. II 605, s. 1], 29 [am. (1981) 113 O.G. II 4118, s. 3; am. (1984) 116 O.G. II 2051, s. 3], 32, 35.0.1 [ad. (1984) 116 O.G. II 1432, s. 2], 35.0.2 [idem; am. (1985) 117 O.G. II 3690, s.1], 35.0.5 [ad. (1984) 116 O.G. II 1432, s. 2], 35.0.6 [idem], 35.0.7 [ad. (1984) 116 O.G. II 2052, s. 6].

Social Aid Act, R.S.Q., c. A‑16, ss. 5, 6, 11 [am. 1984, c. 5, s. 1], 11.1 [ad. idem, s. 2], 11.2 [idem], 31, 45, 49.

Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), Arts. 22, 25(1).

Authors Cited

Ascah, Louis. La discrimination contre les moins de trente ans à l’aide sociale du Québec: un regard économique. Sherbrooke: Université de Sherbrooke, 1988.

Bosset, Pierre. “Les droits économiques et sociaux: parents pauvres de la Charte québécoise?” (1996), 75 Can. Bar Rev. 583.

Bredt, Christopher D., and Adam M. Dodek. “The Increasing Irrelevance of Section 1 of the Charter” (2001), 14 Sup. Ct. L. Rev. (2d) 175.

Carignan, Pierre. “L’égalité dans le droit: une méthode d’approche appliquée à l’article 10 de la Charte des droits et libertés de la personne”. Dans De la Charte québécoise des droits et libertés: origine, nature et défis. Montréal: Thémis, 1989, 101.

Fortin, Pierre. “Le chomâge des jeunes au Québec: aggravation et concentration (1966‑1982)” (1984), 39 Relations industrielles 419.

Fortin, Pierre. “Les mesures d’employabilité à l’aide sociale: origine, signification et portée”, février 1990.

Greschner, Donna. “The Purpose of Canadian Equality Rights” (2002), 6 Rev. Const. Stud. 291.

Guérin, Gilles. Les jeunes et le marché du travail. Québec: Commission consultative sur le travail, 1986.

Hogg, Peter W. Constitutional Law of Canada, vol. 2, loose‑leaf ed. Scarborough, Ont.: Carswell, 1997 (updated 2001, release 1).

Lafond, Pierre‑Claude. Le recours collectif comme voie d’accès à la justice pour les consommateurs. Montréal: Thémis, 1996.

Longtin, Marie‑José, et Daniel Jacoby. “La Charte vue sous l’angle du législateur”. Dans La nouvelle Charte sur les droits et les libertés de la personne, Formation permanente du Barreau du Québec, cours no 21. Montréal: Barreau du Québec, 1977, 4.

Poulin Simon, Lise, et Diane Bellemare. Le plein emploi: pourquoi? Québec: Presses de l’Université du Québec, 1983.

Quebec. Assemblée nationale. Journal des débats, 2e sess., 30e lég., vol. 15, no 79, 12 novembre 1974, p. 2744.

Quebec. Minister of Manpower and Income Security. Pour une politique de sécurité du revenu. Quebec: Minister of Manpower and Income Security, 1987.

Shorter Oxford English Dictionary on Historical Principles, vol. 1, 3rd ed. Oxford: Clarendon Press, “deprive”.

United Nations. Economic and Social Council. Committee on Economic, Social and Cultural Rights. Report of the Fifth Session (26 November‑14 December, 1990), Supplement No. 3 (1991).

Weinrib, Lorraine Eisenstat. “The Supreme Court of Canada and Section One of the Charter” (1988), 10 Sup. Ct. L. Rev. 469.

APPEAL from a judgment of the Quebec Court of Appeal, [1999] R.J.Q. 1033, [1999] Q.J. No. 1365 (QL), affirming a decision of the Superior Court, [1992] R.J.Q. 1647, [1992] Q.J. No. 928 (QL). Appeal dismissed, L’Heureux‑Dubé, Bastarache, Arbour and LeBel JJ. dissenting.

Carmen Palardy, Georges Massol and Stéphanie Bernstein, for the appellant.

André Fauteux and Isabelle Harnois, for the respondent.

Janet E. Minor and Peter Landmann, for the intervener the Attorney General for Ontario.

Gabriel Bourgeois, Q.C., for the intervener the Attorney General for New Brunswick.

Sarah Macdonald, for the intervener the Attorney General of British Columbia.

Margaret Unsworth, for the intervener the Attorney General for Alberta.

David Matas, for the intervener Rights and Democracy (also known as International Centre for Human Rights and Democratic Development).

Hélène Tessier, for the intervener Commission des droits de la personne et des droits de la jeunesse.

Gwen Brodsky and Rachel Cox, for the intervener the National Association of Women and the Law (NAWL).

Vincent Calderhead and Martha Jackman, for the intervener the Charter Committee on Poverty Issues (CCPI).

Chantal Masse and Fred Headon, for the intervener the Canadian Association of Statutory Human Rights Agencies (CASHRA).

The judgment of McLachlin C.J. and Gonthier, Iacobucci, Major and Binnie JJ. was delivered by

The Chief Justice —

I. Introduction

1 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.

2 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.

3 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.

4 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.

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

II. Facts and Decisions

6 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.

7 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.

8 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.

9 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.

10 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.

11 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.

III. Issues

12 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.

13 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?

14 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.

15 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.

IV. Analysis

A. Does the Social Assistance Scheme Violate Section 15(1) of the [Canadian Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

1. The Section 15 Test

16 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.”

17 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.

18 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.

19 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.

20 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.

21 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.

22 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.

23 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.

24 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.

25 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.

26 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.

27 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

28 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.

29 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) Pre-existing Disadvantage

30 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.

31 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.

32 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.

33 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.

34 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.”

35 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.

36 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

37 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.

38 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.

39 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.

40 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.

41 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.

42 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.

43 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.

44 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.

45 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.

46 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).

47 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.

48 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.

49 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.

50 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).

51 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”.

52 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.

53 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).

54 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.

55 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).

56 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.

57 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.

58 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

59 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.

60 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.

61 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.

62 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

63 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.

64 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.

65 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.

66 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.

(e) Summary of Contextual Factors Analysis

67 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.

68 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.

69 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.

70 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.

71 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.

72 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.

73 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.

74 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.

B. Does the Social Assistance Scheme Violate Section 7 of the [Canadian Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

75 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.

76 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.

77 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.

78 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.

79 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.

80 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.

81 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.

82 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.

83 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.

84 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.

C. Does the Social Assistance Scheme Violate Section 45 of the [Quebec Charter](https://www.canlii.org/en/qc/laws/stat/cqlr-c-c-12/latest/cqlr-c-c-12.html)?

85 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”.

86 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.

87 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.

88 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.

89 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).

90 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.

91 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.

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

44. 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.

92 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.

93 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.

94 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.

95 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.

96 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.

V. Conclusion

97 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) —

I. Introduction

98 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.

99 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.

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

II. Analysis

A. Section 15

101 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.

102 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.

103 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.

104 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.

105 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.

106 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.

107 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.

108 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.

109 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.