- Gosselin v. Québec (Attorney General)
Some of the authors of this judgment have a history with Gosselin v. Quebec (Attorney General) that pre-dates the creation of the Women's Court of Canada. Rachel Cox and Gwen Brodsky were co-counsel to the National Association of Women and the Law (NAWL) in its 2001 intervention in Gosselin at the Supreme Court of Canada. Shelagh Day was an advisor to NAWL's legal team in that litigation. Kate Stephenson was not directly involved in the Gosselin case, but her work as a leading anti-poverty litigator makes her intimately familiar with the reasoning and outcome. Each of the authors has been affected by the Supreme Court of Canada's decision. Rachel Cox, who lived in Montré al in the 1980s when the Social Aid Regulation reduced young people's welfare benefit by two-thirds, felt keenly the gulf between the reality of the time and the Supreme Court of Canada's characterization of the scheme as "an affirmation of [young people's] potential" and dignity.
For those living inQuébec in the 1980s, the reason for the reduced rate was clear: to save the government money. Even if people disagreed about whether that was right or wrong, no one believed at the time that the government had designed the scheme in a sincere effort to help young people on welfare. There was a recession and somebody had to pay. Simply put, the court case was about whether or not it was legal for the government to make already very poor welfare recipients pay so much of the cost. As for the workfare programs, once the government decided that it could not afford to keep its electoral promise to do away with the reduced rate, the programs were just a guilty afterthought. Like the scarce life boats on the Titanic that were appropriated by the wealthier passengers, the workfare programs saved some of the fittest, most functional, and most employable young welfare recipients from total destitution, leaving the majority to fend for themselves.
In any hearing before the courts, a particular situation, such as Louise Gosselin's, is described, usually years after the fact, through testimony and exhibits and other documentation. Choices are made. Some aspects of the situation are described in testimony or written and filed in evidence; others are not. The case takes on a life of its own. The judge chooses which of the multitude of facts that made it into evidence to report in his [End Page 189] or her decision. This decision then becomes the official version of what happened. Inevitably, the decision distills the facts, crystallizing some while others fade away. The Supreme Court of Canada decision has become the official version of Louise Gosselin's story. However, this official version was constructed through a long and convoluted judicial process that started in the gritty streets of Montreal and finished in the polished marble halls of the Supreme Court of Canada in Ottawa. It seemed important to us to tell the story differently.
It also seemed important to construct a legal argument that is more caring, more feminist, and—we claim—more authentically Canadian than the one issued by the majority of the Supreme Court of Canada. The majority's decision alienated us from an institution we care about, and the apparent indifference of some members of the Court to the unnecessary suffering of young women and men living in poverty struck us as being in conflict with central Canadian and Québec values.
At the 2005 inaugural meeting of the Women's Court of Canada at Jackson's Point in Ontario, in the company of women who think hard and care deeply about equality jurisprudence and about the rights of women and men who are disadvantaged, we concluded that if the fashionable concept of constitutional dialogue is to mean something lively and rich, its participants must be expanded beyond courts and governments to include the groups who are the intended beneficiaries of equality rights. We were reminded that the Supreme Court of Canada judges, while being very important because...