derechos socioeconómicos (1)

Comparative Human Rights Materials Socio-economic rights 2009-10

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SOCIO ECONOMIC RIGHTS

I. INTRODUCTION..............................................................................................................................................2 II. UNITED STATES..............................................................................................................................................3

A. DeShaney et al. v. Winnebago County Department, 1989.........................................................................3 III. CANADA.....................................................................................................................................................11

A. Gosselin v. Quebec, 2002 ........................................................................................................................11 B. Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004.............................................66 C. Chaoulli v. Quebec (Attorney General), 2005.........................................................................................75

IV. UNITED KINGDOM...................................................................................................................................98 A. Regina v. Secretary of State for the Home Department, ex parte Limbuela, 2005..................................98

V. INDIA ........................................................................................................................................................113 A. Olga Tellis v Bombay Municipal corp, 1986.........................................................................................113

VI. INTERNATIONAL MATERIALS............................................................................................................127 A. Compilation of general comments and general recommendations, 2004 .............................................127

VII. HUNGARY AND THE RIGHT TO SOCIAL SECURITY.......................................................................................133 A. Constitutional Court Decision, 1998.....................................................................................................133 B. Constitutional Court Decision, 2000 .........................................................................................................134

VIII. SOUTH AFRICA.......................................................................................................................................143 A. Soobramoney v Minister of Health, KwaZulu-Natal, 1997 ...................................................................143 B. Government of the Republic of South Africa and Others v Grootboom and Others, 2000........................150 C. Minister of Health and Others v Treatment Action Campaign, 2002....................................................165 D. Khosa v Minister of Social Development, 2004.....................................................................................188 E. Port Elizabeth Case....................................................................................................................................204

DERECHOS SOCIOECONÓMICOS


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I. INTRODUCTION The following questions should guide you through the cases in this module:

1. Role of the state

(a) What is the purpose of having social services? Rights?

(b) What is the role of the state towards the individual?

(c) Are rights mostly negative – restraint on the state or can they be positive – duty of the state to provide certain resources? Is the distinction necessary?

(d) Do rights lead to duties or can you speak exclusively about a duty (without a right)?

(e) Do you need a direct linkage between a violation and presence of governmental agency?

(f) Which duties

(a) Duty of state to refrain from interfering in people’s lives

(b) Duty of state to protect against other individuals encroaching on their rights

(c) Duty of state to promote – facilitate access to certain resources or duty to provide ?

2. Role of the court

(a) Separation of power question – are the courts the right ones to adjudicate on the allocation of resources? Is everything a human rights issue?

(b) Are these policy decisions for the state to make? Are these political questions?

3. Extent of positive duties that the court will recognise

(a) Within the context of right to life, freedom of assembly, respect of family and private life

(b) Traditional civil and political rights

(c) Constitution provides for social and economic rights

(i) Directive principle of state policy

(ii) Constitutional provision specifically guaranteeing socio and economic rights - Justiciability ensured, but courts have to deal with the question of deference

4. Balancing conflicts between different interests

(a) A lot of interests have to be taken into account and balanced – how do judges do this?

(b) Is there a hierarchy among rights?

(c) Question of evidence – what evidence can it use? And how much?

(d) Do the directive principles (Indian Constitution) help in the balancing process?


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II. UNITED STATES

A. DeShaney et al. v. Winnebago County Department, 1989

US SC 489 U.S. 189; 109 S. Ct. 998; 103 L. Ed. 2d 249 (1989)

JUDGES: Rehnquist, C. J., White, Stevens, O'Connor, Scalia, Kennedy, Brennan, Marshall, Blackmun, JJ..

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

Petitioner is a boy who was beaten and permanently injured by his father, with whom he lived. Respondents are social workers and other local officials who received complaints that petitioner was being abused by his father and had reason to believe that this was the case, but nonetheless did not act to remove petitioner from his father's custody. Petitioner sued respondents claiming that their failure to act deprived him of his liberty in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We hold that it did not.

I

The facts of this case are undeniably tragic. Petitioner Joshua DeShaney was born in 1979. In 1980, a Wyoming court granted his parents a divorce and awarded custody of Joshua to his father, Randy DeShaney. The father shortly thereafter moved to Neenah, a city located in Winnebago County, Wisconsin, taking the infant Joshua with him. There he entered into a second marriage, which also ended in divorce.

The Winnebago County authorities first learned that Joshua DeShaney might be a victim of child abuse in January 1982, when his father's second wife complained to the police, at the time of their divorce, that he had previously "hit the boy causing marks and [was] a prime case for child abuse." App. 152-153. The Winnebago County Department of Social Services (DSS) interviewed the father, but he denied the accusations, and DSS did not pursue them further. In January 1983, Joshua was admitted to a local hospital with multiple bruises and abrasions. The examining physician suspected child abuse and notified DSS, which immediately obtained an order from a Wisconsin juvenile court placing Joshua in the temporary custody of the hospital. Three days later, the county convened an ad hoc "Child Protection Team" -- consisting of a pediatrician, a psychologist, a police detective, the county's lawyer, several DSS caseworkers, and various hospital personnel -- to consider Joshua's situation. At this meeting, the Team decided that there was insufficient evidence of child abuse to retain Joshua in the custody of the court. The Team did, however, decide to recommend several measures to protect Joshua, including enrolling him in a preschool program, providing his father with certain counselling services, and encouraging his father's girlfriend to move out of the home. Randy DeShaney entered into a voluntary agreement with DSS in which he promised to cooperate with them in accomplishing these goals.

Based on the recommendation of the Child Protection Team, the juvenile court dismissed the child protection case and returned Joshua to the custody of his father. A month later, emergency room personnel called the DSS caseworker handling Joshua's case to report that he had once again been treated for suspicious injuries. The caseworker concluded that there was no basis for action. For the next six months, the caseworker made monthly visits to the DeShaney home, during which she observed a number of suspicious injuries on Joshua's head; she also noticed that he had not been enrolled in school, and that the girlfriend had not moved out. The caseworker dutifully recorded these incidents in her files, along with her continuing suspicions that someone in the DeShaney household was physically abusing Joshua, but she did nothing more. In November 1983, the emergency room notified DSS that Joshua had been treated once again for injuries that they believed to be caused by child abuse. On the caseworker's next two visits to the DeShaney home, she was told that Joshua was too ill to see her. Still DSS took no action.

EE.UU


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In March 1984, Randy DeShaney beat 4-year-old Joshua so severely that he fell into a life-threatening coma. Emergency brain surgery revealed a series of hemorrhages caused by traumatic injuries to the head inflicted over a long period of time. Joshua did not die, but he suffered brain damage so severe that he is expected to spend the rest of his life confined to an institution for the profoundly retarded. Randy DeShaney was subsequently tried and convicted of child abuse.

Joshua and his mother brought this action under 42 U. S. C. ß 1983 in the United States District Court for the Eastern District of Wisconsin against respondents Winnebago County, DSS, and various individual employees of DSS. The complaint alleged that respondents had deprived Joshua of his liberty without due process of law, in violation of his rights under the Fourteenth Amendment, by failing to intervene to protect him against a risk of violence at his father's hands of which they knew or should have known. (…)

II

The Due Process Clause of the Fourteenth Amendment provides that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law." Petitioners contend that the State deprived Joshua of his liberty interest in "free[dom] from ... unjustified intrusions on personal security," (…) , by failing to provide him with adequate protection against his father's violence. The claim is one invoking the substantive rather than the procedural component of the Due Process Clause; petitioners do not claim that the State denied Joshua protection without according him appropriate procedural safeguards, …, but that it was categorically obligated to protect him in these circumstances, …

But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Nor does history support such an expansive reading of the constitutional text. Like its counterpart in the Fifth Amendment, the Due Process Clause of the Fourteenth Amendment was intended to prevent government "from abusing [its] power, or employing it as an instrument of oppression," … Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes.

Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual. ... As we said in Harris v. McRae: "Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference ..., it does not confer an entitlement to such [governmental aid] as may be necessary to realize all the advantages of that freedom." 448 U.S., at 317-318 (emphasis added). If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them.1 As a general matter, then, we conclude that a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.

Petitioners contend, however, that even if the Due Process Clause imposes no affirmative obligation on the State to provide the general public with adequate protective services, such a duty may arise out of certain "special relationships" created or assumed by the State with respect to particular individuals. Brief for Petitioners 13-18. Petitioners argue that such a "special relationship" existed here because the State

1 The State may not, of course, selectively deny itsprotective services to certain disfavored minorities without violating the Equal Protection Clause. See Yick Wo v. Hopkins, 118 U.S. 356 (1886). But no such argument has been made here.


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knew that Joshua faced a special danger of abuse at his father's hands, and specifically proclaimed, by word and by deed, its intention to protect him against that danger. Id., at 18-20. Having actually undertaken to protect Joshua from this danger -- which petitioners concede the State played no part in creating -- the State acquired an affirmative "duty," enforceable through the Due Process Clause, to do so in a reasonably competent fashion. Its failure to discharge that duty, so the argument goes, was an abuse of governmental power that so "shocks the conscience," Rochin v. California, 342 U.S. 165, 172 (1952), as to constitute a substantive due process violation. …

We reject this argument. It is true that in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals. In Estelle v. Gamble, 429 U.S. 97 (1976), we recognized that the Eighth Amendment's prohibition against cruel and unusual punishment, made applicable to the States through the Fourteenth Amendment's Due Process Clause, Robinson v. California, 370 U.S. 660 (1962), requires the State to provide adequate medical care to incarcerated prisoners. 429 U.S., at 103-104. We reasoned that because the prisoner is unable "'by reason of the deprivation of his liberty [to] care for himself,'" it is only "'just'" that the State be required to care for him. Ibid., quoting Spicer v. Williamson, 191 N. C. 487, 490, 132 S. E. 291, 293 (1926).

In Youngberg v. Romeo, 457 U.S. 307 (1982), we extended this analysis beyond the Eighth Amendment setting, holding that the substantive component of the Fourteenth Amendment's Due Process Clause requires the State to provide involuntarily committed mental patients with such services as are necessary to ensure their "reasonable safety" from themselves and others. … As we explained: "If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional [under the Due Process Clause] to confine the involuntarily committed -- who may not be punished at all -- in unsafe conditions." …

But these cases afford petitioners no help. Taken together, they stand only for the proposition that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. … The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs -- e. g., food, clothing, shelter, medical care, and reasonable safety -- it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. … The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. … In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf -- through incarceration, institutionalization, or other similar restraint of personal liberty -- which is the "deprivation of liberty" triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.

The Estelle-Youngberg analysis simply has no applicability in the present case. Petitioners concede that the harms Joshua suffered occurred not while he was in the State's custody, but while he was in the custody of his natural father, who was in no sense a state actor. While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father's custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual's safety by having once offered him shelter. Under these circumstances, the State had no constitutional duty to protect Joshua.

It may well be that, by voluntarily undertaking to protect Joshua against a danger it concededly played no part in creating, the State acquired a duty under state tort law to provide him with adequate protection against that danger. … But the claim here is based on the Due Process Clause of the Fourteenth


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Amendment, which, as we have said many times, does not transform every tort committed by a state actor into a constitutional violation. … A State may, through its courts and legislatures, impose such affirmative duties of care and protection upon its agents as it wishes. But not "all common-law duties owed by government actors were ... constitutionalized by the Fourteenth Amendment." Daniels v. Williams, supra, at 335. Because, as explained above, the State had no constitutional duty to protect Joshua against his father's violence, its failure to do so -- though calamitous in hindsight -- simply does not constitute a violation of the Due Process Clause.

Judges and lawyers, like other humans, are moved by natural sympathy in a case like this to find a way for Joshua and his mother to receive adequate compensation for the grievous harm inflicted upon them. But before yielding to that impulse, it is well to remember once again that the harm was inflicted not by the State of Wisconsin, but by Joshua's father. The most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them. In defense of them it must also be said that had they moved too soon to take custody of the son away from the father, they would likely have been met with charges of improperly intruding into the parent-child relationship, charges based on the same Due Process Clause that forms the basis for the present charge of failure to provide adequate protection.

The people of Wisconsin may well prefer a system of liability which would place upon the State and its officials the responsibility for failure to act in situations such as the present one. They may create such a system, if they do not have it already, by changing the tort law of the State in accordance with the regular lawmaking process. But they should not have it thrust upon them by this Court's expansion of the Due Process Clause of the Fourteenth Amendment. Affirmed.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting.

"The most that can be said of the state functionaries in this case," the Court today concludes, "is that they stood by and did nothing when suspicious circumstances dictated a more active role for them." Ante this page. Because I believe that this description of respondents' conduct tells only part of the story and that, accordingly, the Constitution itself "dictated a more active role" for respondents in the circumstances presented here, I cannot agree that respondents had no constitutional duty to help Joshua DeShaney.

It may well be, as the Court decides, ante, at 194-197, that the Due Process Clause as construed by our prior cases creates no general right to basic governmental services. That, however, is not the question presented here; indeed, that question was not raised in the complaint, urged on appeal, presented in the petition for certiorari, or addressed in the briefs on the merits. No one, in short, has asked the Court to proclaim that, as a general matter, the Constitution safeguards positive as well as negative liberties.

This is more than a quibble over dicta; it is a point about perspective, having substantive ramifications. In a constitutional setting that distinguishes sharply between action and inaction, one's characterization of the misconduct alleged under ß 1983 may effectively decide the case. Thus, by leading off with a discussion (and rejection) of the idea that the Constitution imposes on the States an affirmative duty to take basic care of their citizens, the Court foreshadows -- perhaps even preordains -- its conclusion that no duty existed even on the specific facts before us. This initial discussion establishes the baseline from which the Court assesses the DeShaneys' claim that, when a State has -- "by word and by deed," ante, at 197 -- announced an intention to protect a certain class of citizens and has before it facts that would trigger that protection under the applicable state law, the Constitution imposes upon the State an affirmative duty of protection.

The Court's baseline is the absence of positive rights in the Constitution and a concomitant suspicion of any claim that seems to depend on such rights. From this perspective, the DeShaneys' claim is first and foremost about inaction (the failure, here, of respondents to take steps to protect Joshua), and only tangentially about action (the establishment of a state program specifically designed to help children like Joshua). And from this perspective, holding these Wisconsin officials liable -- where the only difference between this case and one involving a general claim to protective services is Wisconsin's establishment


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and operation of a program to protect children -- would seem to punish an effort that we should seek to promote.

I would begin from the opposite direction. I would focus first on the action that Wisconsin has taken with respect to Joshua and children like him, rather than on the actions that the State failed to take. Such a method is not new to this Court. Both Estelle v. Gamble, 429 U.S. 97 (1976), and Youngberg v. Romeo, 457 U.S. 307 (1982), began by emphasizing that the States had confined J. W. Gamble to prison and Nicholas Romeo to a psychiatric hospital. This initial action rendered these people helpless to help themselves or to seek help from persons unconnected to the government. … Cases from the lower courts also recognize that a State's actions can be decisive in assessing the constitutional significance of subsequent inaction. For these purposes, moreover, actual physical restraint is not the only state action that has been considered relevant. …

Because of the Court's initial fixation on the general principle that the Constitution does not establish positive rights, it is unable to appreciate our recognition in Estelle and Youngberg that this principle does not hold true in all circumstances. Thus, in the Court's view, Youngberg can be explained (and dismissed) in the following way: "In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf -- through incarceration, institutionalization, or other similar restraint of personal liberty -- which is the 'deprivation of liberty' triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means." Ante, at 200. This restatement of Youngberg's holding should come as a surprise when one recalls our explicit observation in that case that Romeo did not challenge his commitment to the hospital, but instead "argue[d] that he ha[d] a constitutionally protected liberty interest in safety, freedom of movement, and training within the institution; and that petitioners infringed these rights by failing to provide constitutionally required conditions of confinement." 457 U.S., at 315 (emphasis added). I do not mean to suggest that "the State's affirmative act of restraining the individual's freedom to act on his own behalf," ante, at 200, was irrelevant in Youngberg; rather, I emphasize that this conduct would have led to no injury, and consequently no cause of action under ß 1983, unless the State then had failed to take steps to protect Romeo from himself and from others. In addition, the Court's exclusive attention to state-imposed restraints of "the individual's freedom to act on his own behalf," ante, at 200, suggests that it was the State that rendered Romeo unable to care for himself, whereas in fact -- with an I. Q. of between 8 and 10, and the mental capacity of an 18-month-old child, 457 U.S., at 309 -- he had been quite incapable of taking care of himself long before the State stepped into his life. Thus, the fact of hospitalization was critical in Youngberg not because it rendered Romeo helpless to help himself, but because it separated him from other sources of aid that, we held, the State was obligated to replace. Unlike the Court, therefore, I am unable to see in Youngberg a neat and decisive divide between action and inaction.

Moreover, to the Court, the only fact that seems to count as an "affirmative act of restraining the individual's freedom to act on his own behalf" is direct physical control. Ante, at 200 (listing only "incarceration, institutionalization, [and] other similar restraint of personal liberty" in describing relevant "affirmative acts"). I would not, however, give Youngberg and Estelle such a stingy scope. I would recognize, as the Court apparently cannot, that "the State's knowledge of [an] individual's predicament [and] its expressions of intent to help him" can amount to a "limitation ... on his freedom to act on his own behalf" or to obtain help from others. Ante, at 200. Thus, I would read Youngberg and Estelle to stand for the much more generous proposition that, if a State cuts off private sources of aid and then refuses aid itself, it cannot wash its hands of the harm that results from its inaction.

Youngberg and Estelle are not alone in sounding this theme. In striking down a filing fee as applied to divorce cases brought by indigents, …, and in deciding that a local government could not entirely foreclose the opportunity to speak in a public forum, …, we have acknowledged that a State's actions -- such as the monopolization of a particular path of relief -- may impose upon the State certain positive duties. Similarly, Shelley v. Kraemer, 334 U.S. 1 (1948), and Burton v. Wilmington Parking Authority,


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365 U.S. 715 (1961), suggest that a State may be found complicit in an injury even if it did not create the situation that caused the harm.

Arising as they do from constitutional contexts different from the one involved here, cases like Boddie and Burton are instructive rather than decisive in the case before us. But they set a tone equally well established in precedent as, and contradictory to, the one the Court sets by situating the DeShaneys' complaint within the class of cases epitomized by the Court's decision in Harris v. McRae, 448 U.S. 297 (1980). The cases that I have cited tell us that Goldberg v. Kelly, 397 U.S. 254 (1970) (recognizing entitlement to welfare under state law), can stand side by side with Dandridge v. Williams, 397 U.S. 471, 484 (1970) (implicitly rejecting idea that welfare is a fundamental right), and that Goss v. Lopez, 419 U.S. 565, 573 (1975) (entitlement to public education under state law), is perfectly consistent with San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 29-39 (1973) (no fundamental right to education). To put the point more directly, these cases signal that a State's prior actions may be decisive in analyzing the constitutional significance of its inaction. I thus would locate the DeShaneys' claims within the framework of cases like Youngberg and Estelle, and more generally, Boddie and Schneider , by considering the actions that Wisconsin took with respect to Joshua.

Wisconsin has established a child-welfare system specifically designed to help children like Joshua. Wisconsin law places upon the local departments of social services such as respondent (DSS or Department) a duty to investigate reported instances of child abuse. … While other governmental bodies and private persons are largely responsible for the reporting of possible cases of child abuse, see ß 48.981(2), Wisconsin law channels all such reports to the local departments of social services for evaluation and, if necessary, further action. ß 48.981(3). Even when it is the sheriff's office or police department that receives a report of suspected child abuse, that report is referred to local social services departments for action, see ß 48.981(3)(a); the only exception to this occurs when the reporter fears for the child's immediate safety. ß 48.981(3)(b). In this way, Wisconsin law invites -- indeed, directs -- citizens and other governmental entities to depend on local departments of social services such as respondent to protect children from abuse.

The specific facts before us bear out this view of Wisconsin's system of protecting children. Each time someone voiced a suspicion that Joshua was being abused, that information was relayed to the Department for investigation and possible action. When Randy DeShaney's second wife told the police that he had "'hit the boy causing marks and [was] a prime case for child abuse,'" the police referred her complaint to DSS. Ante, at 192. When, on three separate occasions, emergency room personnel noticed suspicious injuries on Joshua's body, they went to DSS with this information. Ante, at 192-193. When neighbors informed the police that they had seen or heard Joshua's father or his father's lover beating or otherwise abusing Joshua, the police brought these reports to the attention of DSS. App. 144-145. And when respondent Kemmeter, through these reports and through her own observations in the course of nearly 20 visits to the DeShaney home, id., at 104, compiled growing evidence that Joshua was being abused, that information stayed within the Department -- chronicled by the social worker in detail that seems almost eerie in light of her failure to act upon it. (As to the extent of the social worker's involvement in, and knowledge of, Joshua's predicament, her reaction to the news of Joshua's last and most devastating injuries is illuminating: "'I just knew the phone would ring some day and Joshua would be dead.'" 812 F. 2d 298, 300 (CA7 1987).)

Even more telling than these examples is the Department's control over the decision whether to take steps to protect a particular child from suspected abuse. While many different people contributed information and advice to this decision, it was up to the people at DSS to make the ultimate decision (subject to the approval of the local government's corporation counsel) whether to disturb the family's current arrangements. App. 41, 58. When Joshua first appeared at a local hospital with injuries signaling physical abuse, for example, it was DSS that made the decision to take him into temporary custody for the purpose of studying his situation -- and it was DSS, acting in conjunction with the corporation counsel, that returned him to his father. Ante, at 192. Unfortunately for Joshua DeShaney, the buck effectively stopped with the Department.


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In these circumstances, a private citizen, or even a person working in a government agency other than DSS, would doubtless feel that her job was done as soon as she had reported her suspicions of child abuse to DSS. Through its child-welfare program, in other words, the State of Wisconsin has relieved ordinary citizens and governmental bodies other than the Department of any sense of obligation to do anything more than report their suspicions of child abuse to DSS. If DSS ignores or dismisses these suspicions, no one will step in to fill the gap. Wisconsin's child-protection program thus effectively confined Joshua DeShaney within the walls of Randy DeShaney's violent home until such time as DSS took action to remove him. Conceivably, then, children like Joshua are made worse off by the existence of this program when the persons and entities charged with carrying it out fail to do their jobs.

It simply belies reality, therefore, to contend that the State "stood by and did nothing" with respect to Joshua. Ante, at 203. Through its child-protection program, the State actively intervened in Joshua's life and, by virtue of this intervention, acquired ever more certain knowledge that Joshua was in grave danger. These circumstances, in my view, plant this case solidly within the tradition of cases like Youngberg and Estelle.

It will be meager comfort to Joshua and his mother to know that, if the State had "selectively den[ied] its protective services" to them because they were "disfavored minorities," ante, at 197, n. 3, their ß 1983 suit might have stood on sturdier ground. Because of the posture of this case, we do not know why respondents did not take steps to protect Joshua; the Court, however, tells us that their reason is irrelevant so long as their inaction was not the product of invidious discrimination. Presumably, then, if respondents decided not to help Joshua because his name began with a "J," or because he was born in the spring, or because they did not care enough about him even to formulate an intent to discriminate against him based on an arbitrary reason, respondents would not be liable to the DeShaneys because they were not the ones who dealt the blows that destroyed Joshua's life.

I do not suggest that such irrationality was at work in this case; I emphasize only that we do not know whether or not it was. I would allow Joshua and his mother the opportunity to show that respondents' failure to help him arose, not out of the sound exercise of professional judgment that we recognized in Youngberg as sufficient to preclude liability, see 457 U.S., at 322-323, but from the kind of arbitrariness that we have in the past condemned. …

Youngberg's deference to a decisionmaker's professional judgment ensures that once a caseworker has decided, on the basis of her professional training and experience, that one course of protection is preferable for a given child, or even that no special protection is required, she will not be found liable for the harm that follows. (In this way, Youngberg's vision of substantive due process serves a purpose similar to that served by adherence to procedural norms, namely, requiring that a state actor stop and think before she acts in a way that may lead to a loss of liberty.) Moreover, that the Due Process Clause is not violated by merely negligent conduct, see Daniels, supra, and Davidson v. Cannon, 474 U.S. 344 (1986), means that a social worker who simply makes a mistake of judgment under what are admittedly complex and difficult conditions will not find herself liable in damages under ß 1983.

As the Court today reminds us, "the Due Process Clause of the Fourteenth Amendment was intended to prevent government 'from abusing [its] power, or employing it as an instrument of oppression.'" Ante, at 196, quoting Davidson, supra, U.S., at 348. My disagreement with the Court arises from its failure to see that inaction can be every bit as abusive of power as action, that oppression can result when a State undertakes a vital duty and then ignores it. Today's opinion construes the Due Process Clause to permit a State to displace private sources of protection and then, at the critical moment, to shrug its shoulders and turn away from the harm that it has promised to try to prevent. Because I cannot agree that our Constitution is indifferent to such indifference, I respectfully dissent.

JUSTICE BLACKMUN, dissenting.


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Today, the Court purports to be the dispassionate oracle of the law, unmoved by "natural sympathy." Ante, at 202. But, in this pretense, the Court itself retreats into a sterile formalism which prevents it from recognizing either the facts of the case before it or the legal norms that should apply to those facts. As Justice Brennan demonstrates, the facts here involve not mere passivity, but active state intervention in the life of Joshua DeShaney -- intervention that triggered a fundamental duty to aid the boy once the State learned of the severe danger to which he was exposed.

The Court fails to recognize this duty because it attempts to draw a sharp and rigid line between action and inaction. But such formalistic reasoning has no place in the interpretation of the broad and stirring Clauses of the Fourteenth Amendment. Indeed, I submit that these Clauses were designed, at least in part, to undo the formalistic legal reasoning that infected antebellum jurisprudence, which the late Professor Robert Cover analyzed so effectively in his significant work entitled Justice Accused (1975).

Like the antebellum judges who denied relief to fugitive slaves, see id., at 119-121, the Court today claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the question presented by this case is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a "sympathetic" reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging. …

Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, "dutifully recorded these incidents in [their] files." It is a sad commentary upon American life, and constitutional principles -- so full of late of patriotic fervor and proud proclamations about "liberty and justice for all" -- that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve -- but now are denied by this Court -- the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U. S. C. ß 1983 is meant to provide.


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III. CANADA

A. Gosselin v. Quebec, 2002

Supreme Court of Canada, 2002 SCC 84

PANEL: Present: McLachlin C.J. and L'Heureux-DubÈ, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

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., c. A-17, 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.


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[7] The new scheme was based on the philosophy that the most effective way to encourage and enable young people to join the work force 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.(…)

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


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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? (…)

IV. Analysis

A. Does the Social Assistance Scheme Violate Section 15(1) of the Canadian Charter?

(1) The Section 15 Test

[16] Section 15(1) of the Canadian Charter provides that "every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

[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 work force 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


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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):

"The purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all person 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 ... 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)...

[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... 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...

[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 off-reserve Aboriginal band members in band governance. Eaton and Eldridge spoke of the harms of excluding disabled individuals from the larger society... 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... 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"...

[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


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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 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


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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 bar room door that reads "No Minors" fails to similarly offend. The fact that "each 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...

[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."" …


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[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 work force. 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.


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[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 work force 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 work force, 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 work force 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 work force 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


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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, "in 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


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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 person" (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 substantives sense intended by s. 15(1).


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[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 "based 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 Effects 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 work force 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


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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 Interest 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"...

[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 work force, 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


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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 equally 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


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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?

[75] Section 7 states that "everyone 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 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"... "The 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 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...

[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… Bastarache J. argues that s. 7 applies only in an adjudicative context. With respect, I believe that this


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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...

[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] AC 124, the Canadian Charter must be viewed as "living tree capable of growth and expansion within its natural limits"... 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 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.


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C. Does the Social Assistance Scheme Violate Section 45 of the Quebec Charter?

[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 adequate 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 adequate 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 adequate 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 "every child has the 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: "every 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.

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


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

[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 "every 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 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. 217A (III), U.N. Doc. A/810, at 71 (1948), provides that "everyone, 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 adequate standard of living, s. 45 refers to a right to measures. Moreover, the right is not to measures that ensure an adequate standard of living, but to measures that are susceptible of ensuring an adequate 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 adequate 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.

BASTARACHE J. (…)

VII. Analysis (…)

B. Canadian Charter of Rights and Freedoms

[202] The appellant advances arguments relating to both s. 7 and s. 15 of the Charter. When multiple Charter rights are advanced, there is always some question as to the proper manner in which to proceed. While it is generally sufficient to find that one of the rights is infringed and simply state that the other "need not be dealt with", this approach is sometimes unhelpful. Each case must be dealt with separately.


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In the recent case of Dunmore v. Ontario (Attorney General), 2001 SCC 94, for instance, the complainant put forth claims based on both his s. 2(d) associational rights and his s. 15 equality rights. I held for the majority that the burdens imposed by ss. 2(d) and 15(1) differed in the sense that the latter focuses on the effects of underinclusion on human dignity, while the former is concerned with the ability to exercise the fundamental freedom of association (para. 28). In that case, at its core, the appellant's claim was concerned with his capacity to organize. I therefore began with a consideration of that right and, having found an unjustified Charter breach, did not have to proceed to a consideration of the s. 15(1) claim.

[203] In this case, we are again faced with two Charter claims, based on rights that require different approaches. While s. 15 is concerned with the effect of over- or underinclusive legislation on the claimant's human dignity, s. 7 is concerned with the manner in which the state's actions interfere with a free-willed person's ability to enjoy his life, liberty and security interests. Any infringement of those rights by the state must be imposed in accordance with the principles of fundamental justice. Though both sets of rights are protected under the Charter, the two protect different interests. While it is important that the Charter be interpreted in a consistent fashion, the rights themselves must be interpreted in accordance with their individual terms. In a given situation, one right may be infringed while another is not. "Charter values" are an important concept that may help to inform a Charter right, but they cannot be invoked to modify the wording of the Charter itself.

[204] In this case, the different nature of the two rights comes to the fore, and it is for this reason that, even though I have held that the legislation in dispute constitutes an unjustified infringement of s. 15, I have chosen to undertake an examination of s. 7 as well, in order to contrast the particular limits of the two rights.

1. Section 7

[205] Section 7 of the Charter provides that "everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." The appellant in this case argues that the statutory framework that reduced benefits for those under 30 infringed her right to security of the person, since it had the effect of leaving her and the members of her class in a position of abject poverty that threatened both their physical and psychological integrity. In order to establish a s. 7 breach, the claimant must first show that she was deprived of her right to life, liberty or security of the person, and then must establish that the state caused such deprivation in a manner that was not in accordance with the principles of fundamental justice.

[206] The protection provided for by s. 7's right to life, liberty and security of the person is reflective of our country's traditional and long-held concern that persons should, in general, be free from the constraints of the state and be treated with dignity and respect. In R. v. Morgentaler, [1988] 1 S.C.R. 30, Dickson C.J. held that security of the person is implicated in the case of "state interference with bodily integrity and serious state-imposed psychological stress" (p. 56).

[207] In New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 60, Lamer C.J. held that, for a restriction of the right to security of the person to be made out:

"the impugned state action must have a serious and profound effect on a person's psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety."

[208] In this case, the appellant has gone to great lengths to demonstrate that the negative effects of living on the reduced level of support were seriously harmful to the physical and psychological well-being of those affected. Certainly, those who, like the appellant, were living on a reduced benefit were not in a very "secure" position. The remaining question at this first stage of the s. 7 analysis is, however, whether this position of insecurity was brought about by the state.


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[209] The requirement that the violation of a person's rights under s. 7 must emanate from a particular state action can be found in the wording of the section itself. S. 7 does not grant a right to security of the person, full stop. Rather, the right is protected only insofar as the claimant is deprived of the right to security of the person by the state, in a manner that is contrary to the principles of fundamental justice. The nature of the required nexus between the right and a particular state action has evolved over time.

[210] In Reference re. ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 ("Prostitution Reference"), Lamer J., as he then was, held that s. 7 was not necessarily limited to purely criminal or penal matters (p. 1175). Nonetheless, he did maintain that, given the context of the surrounding rights and the heading "Legal Rights" under which s. 7 is found, it was proper to conclude that "the restrictions on liberty and security of the person that s. 7 is concerned with are those that occur as a result of an individual's interaction with the justice system, and its administration" (p. 1173).

[211] In G. (J.), supra, Lamer C.J. again addressed the issue of whether s. 7 rights could be extended beyond the criminal law context, this time, with respect to the right to state-funded counsel for a parent at a custody hearing. In finding that such a right was contemplated by s. 7, he held that the subject matter of s. 7 was "the state's conduct in the course of enforcing and securing compliance with the law, where the state's conduct deprives an individual of his or her right to life, liberty, or security of the person" (para. 65). In Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44, I agreed with this statement of the law and concluded that s. 7 rights could be infringed in the context of an investigation under human rights legislation.

[212] In G. (D.F.), [2000] 2 S.C.R. 519, 2000 SCC 48, the ambit of state action was expanded beyond the confines of a court room. In that case, a mother sought an injunction against the Child and Family Services agency's decision to apprehend her child without a warrant. While there was no judicial process at issue, she claimed that the action of the state in apprehending her child violated her s. 7 right to security of the person. L'Heureux-DubÈ J. held that the claimant had been deprived of her right in accordance with the principles of fundamental justice, recognizing nevertheless that she had satisfied the first part of the s. 7 test. This can be explained by the fact that the seizure of the claimant's newborn child constituted a determinative government action.

[213] Thus, in certain exceptional circumstances, this Court has found that s. 7 rights may include situations outside of the traditional criminal context - extending to other areas of judicial competence. In this case, however, there is no link between the harm to the appellant's security of the person and the judicial system or its administration. The appellant was not implicated in any judicial or administrative proceedings, or even in an investigation that would at some point lead to such a proceeding. At the very least, a s. 7 claim must arise as a result of a determinative state action that in and of itself deprives the claimant of the right to life, liberty or security of the person.

[214] Some may find this threshold requirement to be overly formalistic. The appellant, for instance, argues that this Court has found that respect for human dignity underlies most if not all of the rights protected under the Charter. Undoubtedly, I agree that respect for the dignity of all human beings is an important, if not foundational, value in this or any society, and that the interpretation of the Charter may be aided by taking such values into account. However, this does not mean that the language of the Charter can be totally avoided by proceeding to a general examination of such values or that the court can through the process of judicial interpretation change the nature of the right. As held in Blencoe, supra, "while notions of dignity and reputation underlie many Charter rights, they are not stand-alone rights that trigger s. 7 in and of themselves" (para. 97). A purposive approach to Charter interpretation, while coloured by an overarching concern with human dignity, democracy and other such "Charter values", must first and foremost look to the purpose of the section in question. Without some link to the language of the Charter, the legitimacy of the entire process of Charter adjudication is brought into question.

[215] In the Charter, s. 7 is grouped, along with ss. 8 to 14, under the heading "Legal Rights", in French, "Garanties juridiques". Given the wording of this heading, as well as the subject-matter of ss. 8 to 14, it is


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apparent that s. 7 has, as its primary goal, the protection of one's right to life, liberty and security of the person against the coercive power of the state (Hogg, Constitutional Laws of Canada (loose-leaf ed.), vol. 2, at p. 44-9; Prostitution Reference, supra, per Lamer J.). The judicial nature of the s. 7 rights is also evident from the fact that people may only be deprived of those rights in accordance with the principles of fundamental justice. As Lamer J. held in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, such principles are to be found "in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system" (p. 503). It is this strong relationship between the right and the role of the judiciary that leads me to the conclusion that some relationship to the judicial system or its administration must be engaged before s. 7 may be applied.

[216] To suggest that this nexus is required is not to fossilize s. 7. This Court has already held, in G. (J.), supra, Blencoe, supra, and Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, that this link to the judicial system does not mean that s. 7 is limited to purely criminal or penal matters. In K.L.W., supra, it was recognized that there need not be a link to a trial-like process. Individuals who find themselves subject to administrative processes may find that they have been deprived of their right to life, liberty or security of the person. The manner in which these various administrative processes will be reviewed has by no means been calcified. Nor has the interpretation of the "principles of fundamental justice" which apply to these processes. However, at the very least, in order for one to be deprived of a s. 7 right, some determinative state action, analogous to a judicial or administrative process, must be shown to exist. Only then may the process of interpreting the principles of fundamental justice or the analysis of government action be undertaken.

[217] In this case, there has been no engagement with the judicial system or its administration, and thus, the protections of s. 7 are not available. As will be discussed below, I have concluded that s. 29(a) of the Regulation respecting social aid, by treating individuals differently on the basis of their age, constitutes an infringement of the appellant's equality rights. However, s. 7 does not have the same comparative characteristics as the s. 15 right. The appellant's situation must be viewed in more absolute terms. In this case, the threat to the appellant's right to security of the person 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.

[218] The appellant and several of the interveners made forceful arguments regarding the distinction that is sometimes drawn between negative and positive rights, as well as that which is made between economic and civil rights, arguing that security of the person often requires the positive involvement of government in order for it to be realised. This is true. The right to be tried within a reasonable time, for instance, may require governments to spend more money in order to establish efficient judicial institutions. However, in order for s. 7 to be engaged, the threat to the person's right itself must emanate from the state.

[219] In G. (J.), supra, for instance, this Court held that the claimant had the right to be provided with legal aid to assist her during a child custody hearing. To the extent that that order required the government to spend money so as to ensure that the complainant was not deprived of her right to security of the person in a manner that was inconsistent with the principles of fundamental justice, such a right could be construed as "positive" and perhaps "economic". However, what was determinative in that case was that the claimant, pursuant to s. 7, was being directly deprived of her right to security of the person through the action of the state It was the fact that the state was attempting to obtain custody of the claimant's children that threatened her security. It is such initial state action, one that directly affects and deprives a claimant of his or her right to life, liberty or security of the person that is required by the language of s. 7.

[220] The appellant also directed our attention to the dissenting statements of Dickson C. J. in Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, in which he noted that a conceptual approach in which freedoms are said to involve simply an absence of interference or constraint "may be too narrow since it fails to acknowledge situations where the absence of government intervention may in effect substantially impede the enjoyment of fundamental freedoms" (p. 361). The question of


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whether a fundamental freedom can be infringed through the lack of government action was canvassed most recently in the case of Dunmore, supra. In that case, I held that legislation that is underinclusive may, in unique circumstances, substantially impact the exercise of a constitutional freedom (para. 22). I explained that in order to meet the requirement that there be some form of government action as prescribed by s. 32, the legislation must have been specifically designed to safeguard the exercise of the fundamental freedom in question. The affected group was required to show that it was substantially incapable of exercising the freedom sought without the protection of the legislation, and that its exclusion from the legislation substantially reinforced the inherent difficulty to exercise the freedom in question. While the existence of the Social Aid Act might constitute sufficient government action to engage s. 32, none of the other factors enumerated in Dunmore are present in this case.

[221] In Dunmore, I found that the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, instantiated the freedom to organize and that without its protection agricultural workers were substantially incapable of exercising their freedom to associate. The legislation reinforced the already precarious position of agricultural workers in the world of labour relations. In undertaking the underinclusiveness analysis, a complainant must demonstrate that he or she is being deprived of the right itself and not simply the statutory benefit that is being provided to other groups. Here, the Social Aid Act seeks to remedy the situation of those persons who find themselves without work or other assistance by providing them with financial support and job training so that they can integrate to the active workforce. As in Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, and Haig v. Canada, [1993] 2 S.C.R. 995, the exclusion of people under 30 from the full, unconditional benefit package does not render them substantially incapable of exercising their right to security of the person without government intervention. Leaving aside the possibilities that might exist on the open market, training programs are offered to assist in finding work and to provide additional benefits.

[222] The appellant has failed to demonstrate that there exists 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 years of age and over been shown to reduce, on its own, or substantially, the potential of young people to exercise their right to security of the person. The fact that the remedial programs instituted by the reforms of 1984 might not have been designed in a manner that was overly favourable to the appellant does not help the appellant in meeting her burden. My concern here is with the ability of the appellant's group to access the right itself, not to benefit better from the statutory scheme. The appellant has failed to show a substantial incapability of protecting her right to security. She has not demonstrated that the legislation, by excluding her, has reduced her security any more than it would have already been, given market conditions.

[223] For these reasons, I would hold that s. 29(a) of the Regulation respecting social aid does not infringe s. 7 of the Canadian 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 Regulation substantially prevent or inhibit the appellant from protecting her own security. Such a result should not be unexpected. As I noted in Dunmore, supra, total exclusion of a group from a statutory scheme protecting a certain right may in some limited circumstances engage that right to such an extent that it is in essence the substantive right that has been infringed as opposed to the equality right protected under s. 15(1) of the Charter. However, the underinclusiveness of legislation will normally be the province of s. 15(1), and so it is to the equality analysis that we must now turn.

2. Section 15

[224] Section 15(1) of the Charter protects every individual's right to the equal protection and benefit of the law, without discrimination based on, among other grounds, age. As this Court has enunciated on numerous occasions, a purposive approach to this right must take into consideration a concern for the individual human dignity of all those subject to the law. As noted in the s. 7 analysis, while a concern for and understanding of the basic values underlying the Charter are important in order to give proper


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consideration to a Charter claim, such principles cannot be allowed to override the language of the Charter itself.

[225] Among the grounds of prohibited discrimination enumerated under s. 15(1), age is the one that tends to cause the most theoretical confusion. The source of such confusion in implementing the s. 15(1) guarantee of age equality is rooted in our understanding of substantive equality. In protecting substantive equality, this Court has recognized that like people should be treated alike and, reciprocally, different people must often be treated differently. Most of the grounds enumerated under s. 15(1) tend to be characteristics that our society has deemed to be "irrelevant" to one's abilities. The problem with age is that because we all, as human beings trapped in the continuum of time, experience the process of aging, it is sometimes difficult to assess discriminative behaviour. Health allowing, we all have the opportunity to be young and foolish as well as old and crotchety. As Professor Hogg, supra, argues, "[a] minority defined by age is much less likely to suffer from the hostility, intolerance and prejudice of the majority than is a minority defined by race or religion or any other characteristic that the majority has never possessed and will never possess" (p. 52-54).

[226] Moreover, whereas distinctions based on most other enumerated or analogous grounds may often be said to be using the characteristic as an illegitimate proxy for merit, distinctions based on age as a proxy for merit or ability are often made and viewed as legitimate. This acceptance of distinctions based on age is due to the fact that at different ages people are capable of different things. Ten-year-olds, in general, do not make good drivers. The same might be said for the majority of centenarians. It is in recognition of these developmental differences that several laws draw distinctions on the basis of age.

[227] However, despite this apparent recognition that age is of a different sort than the other grounds enumerated in s. 15(1), the fact of the matter is that it was included as a prohibited ground of discrimination in the Canadian Charter. Recall that in Law Iacobucci J. referred to the remark in Andrews that it would be a rare case in which differential treatment based on one or more of the enumerated or analogous grounds would not be discriminatory: Law, supra, at para. 110. In contrast, some human rights laws do not include age as a ground of discrimination, or limit the ground to discrimination between the ages of 18 and 65: Human Rights Code, R.S.B.C. 1996, c. 210; Quebec Charter, s. 10. But the Canadian Charter does include age, without internal limitation. In CorbiËre v. Canada ( Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, McLachlin J. and I held that the grounds of discrimination enumerated in s. 15(1) "function as legislative markers of suspect grounds associated with stereotypical, discriminatory decision making" (para. 7). Legislation that draws a distinction based on such a ground is suspect because it often leads to discrimination and denial of substantive equality. This is the case whether the distinction is based on race, gender or age. While distinctions based on age may often be justified, they are nonetheless equally suspect. While age is a ground that is experienced by all people, it is not necessarily experienced in the same way by all people at all times. Large cohorts may use age to discriminate against smaller, more vulnerable cohorts. A change in economic, historical or political circumstances may mean that presumptions and stereotypes about a certain age group no longer hold true. Moreover, the fact remains that, while one's age is constantly changing, it is a personal characteristic that at any given moment one can do nothing to alter. Accordingly, 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.

[228] The fact that the Regulation here makes a distinction based on a personal characteristic that is specifically enumerated under s. 15 should therefore raise serious concerns when considering whether such a distinction is in fact discriminatory. While not creating a presumption of discrimination, a distinction based on an enumerated ground reveals a strong suggestion that the provision in question is discriminatory for the purposes of s. 15. In recent years, this Court has stated that disrespect for human dignity lies at the heart of discrimination... However, it is worth repeating that the concept of "human dignity" has essentially been brought to the fore in an effort to capture the essence of what differential treatment based on one of the grounds in s. 15 captures.


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[229] The framework for undertaking a s. 15 analysis was put forth most recently by this Court in Law, supra. In that case, this Court affirmed that the s. 15 analysis is to take place through a three-stage process: Is there differential treatment between the claimant and others, in purpose or effect; is the differential treatment based on one or more of the grounds enumerated under s. 15(1) or a ground analogous to those contained therein; does the law in question have a purpose or effect that is discriminatory within the meaning of the equality guarantee? (Law, at para. 88). At each stage of this process, the claimant bears the civil burden of proof. This burden remains constant no matter how serious the claim or how many people are potentially involved.

[230] It is evident, in this case, and the respondent does not appear to dispute this point, that s. 29(a) of the Regulation respecting social aid creates a distinction between single social assistance recipients under the age of 30 and those 30 and over. Single recipients under the age of 30 have their base benefits capped at a level one third of that of those 30 and over. While they may participate in certain programs in order to increase their benefits, those 30 and over do not have to do so. This results in the differential treatment of the two groups. Thus, the fundamental question that needs to be dealt with in any depth here is whether the distinction outlined in s. 29(a) is indicative that the government treats social assistance recipients under 30 in a way that is respectful of their dignity as members of our society. Evidence regarding the actual impact of the distinction will also be considered, although I conclude that the regulatory regime is discriminatory on its face.

[231] In Law, supra, Iacobucci J. held that this third inquiry is to be assessed as by a reasonable person in the claimant's circumstances, having regard to several "contextual factors". The factors suggested in Law, while not exhaustive, are (1) pre-existing disadvantage, stereotyping, prejudice or vulnerability, (2) correspondence between the distinction drawn and the needs, capacity or circumstances of the claimant or others, (3) any ameliorative purpose or effects of the impugned law upon a more disadvantaged group or person, and (4) the nature and scope of the interest affected by the impugned law. Iacobucci J. noted that the presence or absence of any of these contextual factors is not determinative.

[232] Interestingly, Law, also involved a claim that a legislative provision, by offering lower pension benefits to younger people, constituted age discrimination under s. 15. In that case, the claimant argued that provisions of the Canadian Pension Plan that gradually reduced the survivor's pension for able-bodied surviving spouses without dependant children by 1/120th of the full rate for each month that the claimant's age was less than 45 at the time of the contributor's death was discriminatory. The effect of the legislation was to make 35 years of age the threshold age for receiving survivor benefits for persons not having attained the retirement age of 65. Those over 45 at the time of their spouse's death would receive full benefits, those under 35 would receive no benefits until they were 65, and those between 35 and 45 would receive a graduated amount until they were 65. After examining the contextual factors enunciated above, Iacobucci J. held that this distinction, though based on the enumerated ground of age, was not substantively discriminatory.

[233] The fact that a certain legislative provision which limited the benefits to those under a certain age was found to be constitutional in one case does not necessarily lead to the same conclusion here. In order to determine in this case whether the legislation is respectful of the self-worth and dignity of the appellant, the legislation has to be examined in the context of both its overriding purpose and effects, as well as the situation of the appellant.

[234] As this Court held in Law and Egan, supra, the s. 15 analysis must be undertaken from the perspective of the appellant. As this Court has previously agreed, the focus of the inquiry is both subjective and objective (Law, at para. 59): "... subjective in so far as the right to equal treatment is an individual right, asserted by a specific claimant with particular traits and circumstances; and objective in so far as it is possible to determine whether the individual claimant's equality rights have been infringed only by considering the larger context of the legislation in question, and society's past and present treatment of the claimant and of other persons or groups with similar characteristics or circumstances."


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Thus, while it is not enough for the appellant to simply claim that her dignity was violated, a demonstration, following the subjective-objective method previously described, that there is a rational foundation for her experience of discrimination will be sufficient to ground the s. 15 claim (Lavoie v. Canada, 2002 SCC 23, at para. 46). The factual basis upon which the court will come to a conclusion on this point is very different from the one that will be considered in the context of a s.1 justification. The appellant in this case must demonstrate that the legislation treated recipients of social assistance under the age of 30 in a manner that would lead a reasonable person, similarly situated, to feel that he or she was considered less worthy of "recognition ... as a member of Canadian society": Law, supra, at para. 88. There is no balancing of interests here. In order to demonstrate that her dignity is affected, the appellant may wish to deal with some of the factors enumerated in Law, such as the manner in which the legislation emphasises a pre-existing disadvantage or stereotype suffered by the appellant's group, the importance or nature of the right that is being withheld from the appellant's group, as well as the degree of care that the government took in crafting the legislation so as to take into account the actual needs and situation of the group's members.

(1) Pre-existing disadvantage or stereotype

235 The first contextual factor that was considered in Law was that of pre-existing disadvantage or prejudice. In Law, Iacobucci J. took notice of the fact that young widows are generally better situated to prepare for retirement than are older widows; there is no pre-existing disadvantage in their case. The respondent argues the same thing here, noting that young people are generally not considered to be routinely subjected to the sort of discrimination faced by some of Canada's discrete and insular minorities, and that they are not disadvantaged. While, in general, such a rule of thumb may hold true, it is precisely because of the generality of this type of consideration that distinctions based on enumerated or analogous grounds are suspect. The purpose of undertaking a contextual discrimination analysis is to try to determine whether the dignity of the claimant was actually threatened. In this case, we are not dealing with a general age distinction but with one applicable within a particular social group, welfare recipients. Within that group, the record makes clear that it was not, in fact, easier for persons under 30 to get jobs as opposed to their elders. The unemployment rate in 1982 had risen to 14 percent, with the rate among young people reaching 24 percent. As a percentage of the total population of people on social assistance, those under 30 years of age rose from 3 percent in 1975 to 12 percent in 1983. Thus, the stereotypical view upon which the distinction was based, that the young social welfare recipients suffer no special economic disadvantages, was not grounded in fact; it was based on old assumptions regarding the employability of young people. The creation of the assistance programs themselves demonstrates that the government itself was aware of this disadvantage.

[236] The appellant argues that people on social assistance have always suffered disadvantage because they are victims of stereotypical assumptions regarding the reasons for being welfare recipients, and are therefore marginalised from society. In making such an argument, the appellant is not comparing social assistance recipients under 30 to those 30 and over, but instead, comparing the relative position of young social assistance recipients to members of society as a whole. This raises the question of determinating what is the proper comparator.

[237] In Law, no argument was made that widows, as a category, have been traditionally marginalised. It was recognized, however, that in determining whether a group has suffered previous disadvantage, the analysis need not necessarily adopt the comparator upon which the distinction is first made. The question to be examined here is not whether differential treatment has occurred, which has already been established, but whether the particular group affected has been traditionally marginalised, or has faced unfair stereotyping. In Lovelace v. Ontario, [2000] 1 S.C.R. 950, Iacobucci J. noted that the claimant group (non-registered natives) had faced considerable discrimination, but refused to enter into a "race to the bottom" (para. 69) by deciding who is more disadvantaged. The same approach, should, in my view, be adopted here. There is no compelling evidence that younger welfare recipients, as compared to all


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welfare recipients, have been traditionally marginalised by reason of their age. But that does not end the inquiry.

[238] The concern, when determining whether the differential treatment of a group is discriminatory, must, according to this Court in Law, be governed by an overarching concern for human dignity. The fact that people on social assistance are in a precarious, vulnerable position adds weight to the argument that differentiation that affects them negatively may pose a greater threat to their human dignity. The fact that their status as beneficiaries of social assistance was not argued as constituting a new analogous ground should not be a matter of concern at this stage of the analysis, since it has already been determined at the second stage of the Law test that the differentiation has been made on the basis of an enumerated ground. The issue, at this stage, is to determine whether, in the context of this case, a differentiation based an enumerated ground is threatening to the appelant's human dignity. If the vulnerability of the appellant's group as welfare recipients cannot be recognized at this stage, can we really be said to be undertaking a contextual analysis?

(2) Correspondence between grounds upon which claim is based and the actual needs, capacity or circumstances of the claimant:

[239] It is at this stage of the analysis that the contrast between the competing characterisations of the legislation put forth by the appellant and the respondent is most apparent. The appellant claims that the government did not take into account the real circumstances of young adults in crafting its legislation. In arguing this point, she relies on the estimate that, in reality, only 11.2 percent of young adults were able to receive the full amount of assistance.

[240] The respondent, on the other hand, argues that while, as in Law, this legislation treated younger adults differently because their prospects for supporting themselves in the future were greater than that of their elders, this regulation, unlike that in Law, was specifically designed to assist those under 30. In support of this contention, the respondent presents a considerable amount of evidence demonstrating that the institution of the educational programs constituted a response to an alarmingly high rate of unemployment among young people, and was therefore designed to give them the skills necessary to enter the job market so that they could be more autonomous.

[241] The witnesses for the respondent explained that their intention in developing the new system was to help young people in their particular situation. However, the language of much of the regulatory scheme appears, on its face, to suggest that the educational programs, and the monetary incentives that accompanied them, were blind as to the age of participants. Sections 32, 35.0.1 and 35.0.2 of the Regulation give no indication that such programs were specifically designed for young people. This is confirmed by the fact that while the programs ostensibly targeted those under 30, some people 30 and over did participate in the programs. In his judgment, Robert J.A. gave considerable weight to the fact that there were not enough places available in the programs to meet the needs of all beneficiaries under 30. When the programs were started, 30 000 places were opened, even though 85 000 single people under 30 were on social assistance. As was mentioned earlier, the programs were also open to persons 30 and over. I do not consider evidence of the number of places opened to be a significant factor in determining legislative purpose.

[242] In my view, the treatment of legislative purpose at this stage of the s. 15(1) analysis must not undermine or replace that which will be undertaken when applying s. 1. Whether the distinction is made explicitly in the legislation, as compared with a facially neutral scheme, is immaterial when looking at legislative purpose. Indeed, this Court has adopted a unified approach to discrimination for claims under both the Charter and provincial human rights statutes, and affirmed that the method of discrimination is irrelevant. As McLachlin J. wrote for a unanimous Court in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, at paras. 47 and 48:


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"In the Charter context, the distinction between direct and adverse effect discrimination may have some analytical significance but, because the principal concern is the effect of the impugned law, it has little legal importance. As Iacobucci J. noted at para. 80 of Law, supra:

While it is well established that it is open to a s. 15(1) claimant to establish discrimination by demonstrating a discriminatory legislative purpose, proof of legislative intent is not required in order to found a s. 15(1) claim: Andrews, supra, at p. 174. What is required is that the claimant establish that either the purpose or the effect of the legislation infringes s. 15(1), such that the onus may be satisfied by showing only a discriminatory effect. (Emphasis in original.)

Where s. 15(1) of the Charter is concerned, therefore, this Court has recognized that the negative effect on the individual complainant's dignity does not substantially vary depending on whether the discrimination is overt or covert. [Emphasis in original.]"

[243] Whether a positive legislative purpose may be relevant under the Law analysis at the s. 15 stage is another matter. As is clear in the passage from Law that I have just reproduced, a claimant may demonstrate an infringement of s. 15(1) by either the legislative purpose or the effect. In the context, it is clear that Iacobucci J. is talking only about a detrimental purpose or effect, since it is nonsensical to think that a claimant might establish that a beneficial or benign purpose or effect infringes s. 15(1). It may be argued that a positive legislative intention might make some difference in the subjective-objective assessment of a distinction's impact on a claimant's human dignity, but the "principal concern", as McLachlin J. put it, remains the effect. Furthermore, any argument based on the positive legislative intention must take into account the impugned distinction. As stated earlier, the assumption that long- term benefits of training are greater for younger persons has nothing to do with the present need of all persons for a minimum amount of support and their likely response to the availability of training programs through penalties or incentives.

[244] Indeed, giving too much weight here to what the government says was its objective in designing the scheme would amount to accepting a s. 1 justification before it is required. Commentators have already raised concerns with the blurring between s. 15 and s. 1... In my view, it is highly significant whether certain factors are considered under s. 15 or s. 1. As the Chief Justice recently wrote for the majority of this Court in SauvÈ v. Canada (Chief Electoral Officer), 2002 SCC 68, at para. 10:

"The Charter distinguishes between two separate issues: whether a right has been infringed, and whether the limitation is justified. The complainant bears the burden of showing the infringement of a right (the first step), at which point the burden shifts to the government to justify the limit as a reasonable limit under s. 1 (the second step). These are distinct processes with different burdens."

The point is that under the Oakes analysis, the legislative objective is not accepted uncritically. At the s. 15 stage, it is not appropriate to accept at face value the legislature's characterization of the purpose of the legislation and then use that to negate the otherwise discriminatory effects.

[245] In any case, as I have noted, the legislature's intention is much less important at this stage of the Law analysis than the real effects on the claimant. The fundamental question, then, in this case, is not how the legislature viewed the scheme, nor how members of the majority would have viewed it in relation to the claimant group. The approach set out for us by Law is to ask how any member of the majority, reasonably informed, would feel in the shoes of the claimant, experiencing the effects of the legislation. This approach is essential: if people whom the legislature views as different are not demonstrably different at all, the measure should not be acceptable. In other words, this Court's holding that substantive equality can mean treating different people differently applies only where there is a genuine difference.

[246] Moreover, unlike the situation in Law, in which the legislation in question gradually decreased the benefits from the age of 45 to 35, the Social Aid Act created a bright line at 30, a line which appears to have had little, if any, relationship to the real situation of younger people. As the appellant has demonstrated, and the respondent conceded, the dietary and housing costs of people under 30 are no


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different from those 30 and over. The respondent argued that those under 30 were more likely to live with their parents than those 30 and over. While this appears to have been true, the government had no empirical data to support that view when it adopted the Regulation; it was also shown that those over 25 were much less likely to live with their parents than those under 25. Thus, the decision to draw a bright-line at the age of 30 appears to have little to do with the actual situation of the affected group.

[247] No attempt appears to have been made by the government to actually identify those recipients who were living with their parents, either through the Regulation or through the screening and application process. In fact, no effort was made to establish what living conditions were and a presumption was adopted that all persons under 30 received assistance from their family. This was obviously untrue, as the appellant's personal experience has shown. It is worth mentioning here that this situation is very different from that in Law, where there was a rational basis for presuming that younger widows had fewer needs and superior means of meeting those needs than older widows. In contrast, the young in the present case have similar needs to their elders and their relative youth provides no advantage in meeting those needs.

[248] While the government offered evidence to show that the programs it established targeted what it saw as the needs of those under 30, there does seem to have been a certain degree of reliance on the fact that, by happenstance, the distinction between those under 30 years of age and those 30 and over had traditionally existed in Quebec's social assistance laws. As the government economist Pierre Fortin noted in his report, speaking about the need to do something about the difficult situation facing young welfare recipients:

"[TRANSLATION] An opportunity was provided by the existence of the reduced scale for those capable of working who were under 30 years of age, which could be brought back up to the regular scale provided the recipient participated in one or other of the employability development measures" (P. Fortin, Les mesures d'employabilitÈ ‡ l'aide sociale: origine, signification et portÈe (1990)).

The prior existence of the distinction between beneficiaries under 30 and those 30 and over was based upon older schemes which had sought to emphasise the "principle of parental responsibility" and which had been created within the context of much lower levels of youth unemployment. Thus, the relationship between the actual needs of welfare recipients under 30 and the provisions of the Social Aid Act and Regulation was not particularly strong. By relying on a distinction that had existed decades earlier and that did not take into account the actual circumstances faced by those under 30 in the 1980s, the legislation appears to have shown little respect for the value of those recipients as individual human beings. It created for them what it defined as substandard living conditions on the basis of their age. Where, as here, persons experience serious detriment and evidence shows that the presumptions guiding the legislature were factually unsupported, it is not necessary to demonstrate actual stereotyping, prejudice, or other discriminatory intention. Nor does a positive intention save the regulation. That is the lesson to be drawn from this Court's cases on indirect or effects discrimination... I would therefore disagree with the Chief Justice's views as expressed at para. 38 of her reasons. She writes there that far from being stereotypical or arbitrary, the program was calibrated to address the particular needs and circumstances of young adults requiring social assistance. In my view it is more appropriate to characterize the government's action in this way: Based on the unverifiable presumption that people under 30 had better chances of employment and lower needs, the program delivered to those people two thirds less of what the government viewed as the basic survival amount, drawing its distinction on a characteristic over which those people had no control, their age.

[249] Before turning to the next contextual factor, I wish to address the issue of evidence and the burden of proof necessary to demonstrate a Canadian Charter infringement. The Chief Justice is clearly influenced by what she perceives as the lack of evidence from other individuals besides Ms. Gosselin in support of the contentions of adverse effect. It appears to me that the Chief Justice is also influenced by the procedural fact that Ms. Gosselin's claim was authorized as a class action. It is clear that, in Quebec, to obtain authorization for a class action, the applicant must prove the existence of a group of persons


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harmed by facts deriving from a common origin: P.-C. Lafond, Le recours collectif comme voie d'accËs ‡ la justice pour les consommateurs (1996), at p. 400. Ms. Gosselin obtained authorization, and that authorization is not a live issue in this appeal, so it is established that she has proved the existence of such a group before the court. While even respecting the common law mechanism it is not necessary that common issues predominate or that the class members be identically situated vis-‡-vis the opposing party (Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, at para. 39, per McLachlin C.J.), the legislature in Quebec deliberately departed from the conception of common interest by which all points at issue must be identical, questions of law as well as questions of fact. The legislative intention was for the class action to apply where the problem raised by a member of the group resembles without being identical to those raised by other members. … The question of the extent of individual disadvantage suffered would become relevant much later, when calculating damages. At this stage, however, it would be a departure from past jurisprudence for this Court to refuse to find a Canadian Charter breach on the basis that the claimant had not proven disadvantage to enough others. As the Chief Justice wrote in SauvÈ, supra, at para. 55: "Even one person whose Charter rights are unjustifiably limited is entitled to seek redress under the Charter."

(3) Ameliorative Purpose

[250] The respondent argues that the purpose of this legislation was ameliorative in that it was meant to improve the situation of unemployed youths through academic and experiential benefits, as opposed to exclusively pecuniary assistance. Quite simply, this is not a useful factor in determining whether this legislation's differential treatment was discriminatory. In Law, supra, Iacobucci J. held that a piece of legislation might be less harmful to a group's dignity if its purpose or effect is to help a more disadvantaged person or group in society. In that case, the fact that the purpose of the legislation was to aid elderly widows meant that the impact on the dignity of those under the age of 35 was lessened. Such is not the case here. In this case, 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". If the purpose and effect of the distinction really are to help the group in question, the government should be able to show a tight correspondence between the grounds upon which the distinction is being made and the actual needs of the group. Here, no correspondence has been shown between the lower benefit and the actual needs of the group, even though it may have been established that the programs were themselves beneficial. The only logical inference for the differential treatment is that younger welfare recipients will not respond as positively to training opportunities and must be coerced by punitive measures while older welfare recipients are expected to respond positively to incentives.

(4) Nature of the Interest Affected

[251] The more important the interest that is affected by differential treatment, the greater the chance that such differential treatment will threaten a group's self-worth and dignity. This determination will generally require both a qualitative assessment of the interest affected and a quantitative inquiry as to the extent to which it is denied to the claimant. This case deals with a social assistance program which, despite the admitted existence of a secondary objective of helping people integrate into the workforce, has as its stated purpose the provision of the basic necessities for those in need. Thus, when the government creates a distinction that in some cases will result in people receiving only one third of what it has deemed to be the bare minimum for the sustainment of life, the effect on the members of the group is severe. As Iacobucci J. held in Law, supra, citing L'Heureux-DubÈ J. in Egan, supra: "the discriminatory calibre of differential treatment cannot be fully appreciated without evaluating not only the economic but also the constitutional and societal significance attributed to the interest or interests adversely affected by the legislation in question" (para. 74). Here, there is an obvious and important interest in having enough money to assure one's own survival.


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[252] In Law, the Court noted that the purpose and function of the impugned CPP provisions were not to remedy the immediate financial need experienced by widows and widowers, but rather to enable older widows and widowers to meet their basic needs in the long-term. In this case, while it is admitted that dealing with long-term dependancy is one of the legislation's objectives, the short-term remedying of immediate financial needs continues to play a dominant role in the objectives of the legislation. The difference in the nature and importance of the interest affected - provision for basic needs immediately as opposed to over the long term - is one of the crucial distinctions between the present case and Law. The effect of the distinction in the present case is that the claimant and others like her would have had their income far below not just the government's poverty line, but its basic survival amount. A genuine contextual approach will appreciate this distinction and will not find the result determined by the apparent similarities in that both cases address an age distinction for a government benefit.

[253] In her submissions, the respondent argues that it was not the creation of a lower base level of support for young people that was responsible for the deplorable situation in which many of them found themselves during the early 1980s. Instead, she argues, what was being offered were skills to allow young persons to enter the workforce, thereby reinforcing their dignity and self-worth: "[TRANSLATION] work is universally recognized as an essential component of human dignity."

[254] This statement says nothing about the differential treatment of those offered opportunities to obtain training or work experience. Furthermore, what much of the government's reasoning neglects is that the global economic situation that created the need for a program to help young people was characterized by the fact that there were no jobs available. The reason that 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. This is not to question the wisdom of the government's programs, but to emphasize that the effect that the maintenance of this distinction had on the members of the group in question was real and severe given the economic context of the time. Even if one were to accept, as I do not, that the government's positive intention was a significant factor in diminishing the impact of the impugned law on human dignity, or that there was no implicit stereotype that young persons would not have participated in training programs absent severe deprivation, any reading of the evidence indicates that it was highly improbable that a person under 30, with the best intentions, could at all times until he or she was 30 years old be registered in a program and therefore receive the full subsistence amount. Not all programs were open to each welfare recipient, and there would inevitably be waiting periods between the completion of one program and the start of another. During such periods, persons under 30 would clearly be exposed to deep poverty unlike persons 30 and over, in a way going directly to their human dignity and full participation as equally valued members of society.

[255] The situation of Ms. Gosselin herself is illustrative of the manner in which s. 29(a) operated and affected her basic human dignity. There is no necessity for her to bring evidence of actual deprivation of other named welfare recipients under the age of 30. From the inception of the legislative scheme in question, Ms. Gosselin spent some months participating in the programs, receiving full benefits, and some months between programs, receiving a reduced amount in benefits. During the times that she was participating in the programs, she benefited from the experience that the programs offered, as well as the increase in benefits that such participation provided her. But, being a person under 30 years of age, much of the time she was living in fear of being returned to the reduced level of support. At certain times, she was not immediately capable of entering into a program; then, as well as when a program ended, she was left to fall back on the lower benefit. When she was given the opportunity of participating in a program, she took advantage of it. But if her participation in a particular program did not work out, as when she discovered that she had an allergy to animals and could no longer work at the pet store, she was left to survive on the reduced amount until another placement was made available to her. The presumption that she could rely on her mother was not based on true fact. She was in reality forced to survive on less than the recognized minimum received by those 30 and over.


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[256] This threat to her living income, described by a government witness as "the stick" to accompany "the carrot", caused a great deal of stress to the appellant. This additional stress, which was not experienced by those recipients 30 and over, dominated the appellant's life. Even when she was able to live with her mother, the arrangement was not ideal. It was in fact a situation she expended a great deal of energy in avoiding. At certain times, living with her mother was not even an option, as when the rules in her mother's housing changed, preventing the appellant from sharing her mother's one-bedroom apartment. Undoubtedly, this is a situation that would be stressful for any person, but 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, while it provided that older recipients of social assistance would be permitted to participate in at least one of the same programs and to receive an equivalent increase in benefits. Older recipients did not suffer a massive decrease in their benefits for failure to participate in a self-improvement program. This distinction was made simply on the basis of age, not need, opportunity or personal circumstances.

[257] I wish to reiterate that, as this Court's jurisprudence makes clear, the fourth contextual inquiry focuses on the particular interest denied or limited in respect of the claimant, not the societal interests engaged by the legislature's broader program or another particular benefit purportedly being provided to the claimant. In my view, the interests that the Chief Justice discusses under the fourth inquiry of the Law test at para. 65 belong properly under the s. 1 justification. The interest denied the appellant in this case was not "faith in the usefulness of education," but rather welfare payments at the government's own recognized subsistence level. Consideration of any "positive impact of the legislation" belongs in the proportionality analysis at s. 1.

[258] In conclusion, the appellant has shown that in certain circumstances, and in her circumstances in particular, there were occasions when the effect of the Regulation respecting social aid's differentiation between those under 30 years of age and those 30 and over was such that beneficiaries under 30 could objectively be said to have experienced governmental treatment that failed to respect them as full persons. Given that this differential treatment was based on the enumerated ground of age, it was already suspect for the purposes of s. 15. The fact, among others, that no matter what she did, a beneficiary under 30 would never receive the same benefit as a beneficiary 30 or over participating in a similar program confirms, from the standpoint of the reasonable person, that such treatment would affect one's own feeling of self-worth. I would therefore find that the distinction made by s. 29(a) of the Regulation Respecting Social Aid is discriminatory.

[259] It can be argued that the government could not design a perfect program, and that in a program such as this, some people are bound to fall through the cracks. Indeed, the Chief Justice accepts this argument, noting that a government need not achieve a perfect correspondence between a benefit program and the actual needs and circumstances of the claimant group. But in light of the importance of the interest affected, this should not provide a bar to a finding that Ms. Gosselin's dignity was adversely affected. The severe harm suffered by the appellant as a result of the age-based distinction far exceeds the margin of imperfection Iacobucci J. contemplated in Law, supra, at para. 105. The respondent's claim that such treatment was in the best interest of the appellant is better left to the s. 1 analysis where the government can argue that the adverse effects that the legislation had on the appellant's dignity were justifiable given the practical, economic and social reality of designing a complex social assistance program. Indeed, this sort of reasoning is typical of reasoning under the Oakes test, at minimal impairment or proportionality, to determine whether a breach, once found, is justifiable: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713. It is not what we associate with s. 15 reasoning, and in this case serves to make sustaining a breach much more onerous. As I noted earlier, the burden of proof is significant, too. The Chief Justice appears to believe that the appellant has the onus, under s. 15(1), to demonstrate not only that she is harmed, but also that the government program allows more than an acceptable number of other individuals to fall through the cracks. Given the government's resources, it is much more appropriate to require it to adduce proof of


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the importance and purpose of the program and its minimal impairment of equality rights in discharging its burden under s. 1.

3. Section. 1

[260] Since it is found that the appellant's equality rights were infringed by the legislation, the burden falls on the government to prove that such a limit on her rights was a reasonable one that is demonstrably justifiable in a free and democratic society... In order to demonstrably justify such a limit, the government must show that the provision pursues an objective that is sufficiently important to justify limiting a Charter right, and that it does so in a manner that is (1) rationally connected to that objective, (2) impairs the right no more than is reasonably necessary to accomplish the objective, and (3) does not have a disproportionately severe effect on the persons to whom it applies; see Oakes, at pp. 138-39.

[261] These criteria will be applied with varying levels of rigour depending on the context of the appeal... In this case, we are presented with a law that attempts to remedy the financial situation of the chronically unemployed by providing them with cash benefits and training in order to ensure their subsistence and help them integrate into the workforce. The development of the training programs was obviously a complex process that involved the balancing of various interests, the expenditure of large sums of public money, and a consideration of many variables. Social policy is by no means an exact science; a certain degree of deference should be accorded in reviewing this type of legislation. That being said, the government does not have carte blanche to limit rights in the area of social policy.

[262] In Thomson Newspapers, I held that part of what may lead to deference under a contextual approach to s. 1 is the fact that the legislation is meant to protect a vulnerable group. In such a case, the importance of deferring to the government's decision in balancing competing interests is highlighted. However, in this case, the government claims that the group that it is in fact trying to protect is the very same group whose rights have been infringed. This should militate against an overly deferential approach. If the government wishes to help people by infringing their constitutional rights, the courts should not, given the peculiarities of such an approach, be overly deferential in assessing the objective of the impugned provision or whether the means used were minimally impairing to the right in question.

(1) Objective - Pressing and Substantial

[263] In his reasons, Robert J.A. held that for the purposes of the Oakes test, it is the objective of the distinction that should be analysed. In doing so, he determined that the distinction served two purposes: (1) to avoid attracting young adults to social assistance, and (2) to facilitate integration into the workforce by encouraging participation in the employment programs. The appellant argues that the objective of the distinction should be analysed in light of the legislation as a whole, in particular, the explicit objective of the legislation under s. 6 to provide supplemental aid to those who fall below a subsistence level. Furthermore, she argues that the objective of the legislation cannot, pursuant to this Court's decision in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, be found to have "evolved". The respondent agrees with the double objective analysis of Robert J.A.

[264] In my view, the double objective analysis of Robert J.A. is correct. While the s. 1 analysis must not take place in a contextual vacuum, when a specific legislative provision has been found to infringe a Charter right, the s. 1 analysis must focus on the objective of that particular provision. In cases such as Vriend, supra, in which this Court focussed on the legislation as a whole, it did so because the legislation was being challenged for underinclusion; thus, there was no specific provision to be considered. Here, s. 29(a) is clearly the impugned provision. The s. 1 analysis must therefore focus on the distinction it creates. If too much weight is given to the objective of the legislation as a whole, this will lead the court into an inquiry of what would be the best way to formulate an entire piece of legislation. That is the province of the legislature.

[265] While the "shifting emphasis" argument accepted by Robert J.A., seems to suggest a novel approach to the s. 1 analysis, I believe it was appropriate to accept it in this case. This Court has normally held that


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the objectives of legislation cannot be found to have evolved over time. But in this case, it was a legislative act that signalled the change in emphasis; Big M Drug Mart, supra. In my view, the 1984 changes to the Act, which established the educational programs and provided for an increase in assistance for those who participated in them, constituted a legislative signal that the objective of the distinction in s. 29(a) had, to a certain degree, shifted.

[266] Having found that the objective of the distinction had shifted towards encouraging the integration of young people into the workforce, and given the dire situation of that segment of the population during those years, I would find the objectives of s. 29(a) to be pressing and substantial.

(2) Rational Connection

[267] The appellant attacks the rational connection between the means used by the government and its dual objective on two fronts. First, she argues that the choice of age 30 as the point of distinction was made arbitrarily and that it had no bearing on the means by which the government would achieve its objective. She argues that the government distinguished beneficiaries on the basis of age 30 simply because that distinction already existed, and therefore, in the words of a government witness, because [TRANSLATION] "an opportunity was provided". She also argues that the level of assistance accorded to those under 30 who did not participate in the programs was arbitrary. In her view, if the purpose of selecting a low level of assistance was to encourage participation in the programs, then there should have been enough places available in the programs to accommodate everyone under the age of 30, which there was not.

[268] The respondent agrees with Robert J.A.'s conclusion that while the connection between the means and the objective might not have been shown to be particularly strong, there was a logical link between the different treatment of those under 30 and the objective of encouraging the integration of these people into the workforce. She disagrees, however, with some of his analysis, emphasising again that the distinction made in s. 29(a) has to be analysed in the context of the rest of the legislation and the economic situation of the time.

[269] On this issue I am again in agreement with the findings of Robert J.A. There is a logical link between the provisions of the Regulation and the objective of integrating people under 30 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 achieve that objective.

(3) Minimal Impairment

[270] It is on the issue of minimal impairment that Robert J.A. found that the legislation could not be upheld under s. 1. Again, I find myself in substantial agreement.

[271] First, I would agree with Robert J.A.'s comments regarding the onus that the government must meet at this stage of the analysis. When analysing social legislation, it is true that the Court should avoid second-guessing government policy. The government need not have chosen the least drastic means at its disposal. Nonetheless, it must have chosen to infringe the right as little as was reasonably possible. The respondent argues that given the government's objectives and the evidence it put forth, the methods employed were reasonable and should therefore pass the minimal impairment test. I do not believe that this is the case.

[272] The respondent argues that by allowing people under 30 to participate in programs in order to increase their benefits to the level of those 30 and over, the government demonstrated that the needs and concerns of young social assistance recipients were given careful consideration and were respected. She rejects the alternatives proposed by the appellant - such as the elimination of s. 29(a) or the creation of a universally conditional program - as either eliminating the objective completely or as being impossible to


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implement. An examination of the evidence, however, fails to demonstrate that such approaches would not have been appropriate. With regard to increasing the level of support provided to those under 30, the government insists that such an approach would have prevented it from achieving its objective of integrating young people into the workforce. This is presumably based on the assumption that there would be less incentive to enter the workforce or to participate in the programs if the full benefit was provided unconditionally. However, this remains unproven in the record. There is nothing to show why the response of beneficiaries under 30 would have been different from that of older beneficiaries, and nothing to show why integration in the workforce would have been superior for participants under 30 as compared to older participants. Witnesses for the respondent repeatedly referred to the [TRANSLATION] "attraction effect" that would result from increasing the benefits of people under 30, but they failed to adduce any evidence of studies or previous experience to justify the hypothesis. Aside from supporting the contention that the provisions reflect a discriminatory and stereotypical view of irresponsible youth, such participation by some persons among those 30 and over demonstrates that tying the programs to reduced benefits was not the only option that was available to the government.

[273] I also find the argument that the reforms of 1989 which made the programs universally conditional could not have been implemented earlier to be somewhat unconvincing. When the Charter was passed in 1982, a three-year delay was placed on the implementation of s. 15 in recognition of the effect it could have had on government legislation and the complexity of making appropriate changes. With the passage of the omnibus Act Respecting the Constitution Act, 1982, the government of Quebec provided itself with two extra years to deal with the requirements of the equality provision. Therefore, as of 1982, the Quebec government had five years to consider the implications that the Charter's equality provision would have for its Social Aid Act. Although the government demonstrated that such changes took 18 to 24 months to implement, it did not demonstrate why that process could not have begun at an earlier date.

[274] Thus, it seems to me that the above alternatives cannot be characterized as unreasonable; certainly they would also have been less impairing. However, given the complexity of designing social assistance programs, I accept that the Court should not be in the business of advocating completely new policy directions for the legislature. At the time the legislation was passed, in 1984, it seems clear that the government believed that the continued distinction between those under 30 and those 30 and over was necessary in order to achieve its objective of facilitating the integration of young people into the workforce. Nevertheless, given the availability of the alternative approaches that would have been less impairing to the right, the onus is on the government to demonstrate that the approach it took was itself minimally impairing.

[275] Like Robert J.A., upon examination of the manner in which the legislation in question was implemented, I have come to the conclusion that the government's initiative was not designed in a sufficiently careful manner to pass the minimally impairing test. As Robert J.A. held at p. 1084, the government has failed to show: "[TRANSLATION] (1) that it set sufficiently flexible eligibility requirements for access to the programs; and (2) that it acted reasonably in determining the requirements for an increase in assistance, which was only possible through participation in the measures."

[276] In assessing whether the legislation in place was minimally impairing to the right, the first fact that comes to light is that 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. This in and of itself is not determinative of the fact that the legislation was not minimally impairing, but it does bring to our attention the real possibility that the programs were not designed in a manner that would infringe upon the appellant's rights as little as is reasonably possible. In examining the record, I have found four areas in which the structure of the legislation and the programs can be shown to have been designed in a manner that was not minimally impairing of the appellant's rights.


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[277] First, one major branch of the scheme, the Remedial Education Program, did not provide for full benefits for those who participated, leaving them $ 100 short of the base benefit. Thus, the government foresaw, in the creation of its programs, that a large number of even those who participated in the programs would, in return for their efforts, continue to receive less than the amount received by those 30 and over who were not participating in the programs. As mentioned earlier, the most uneducated, the illiterate, were originally left out of this program entirely. The government argues that the amount of assistance must be examined in tandem with the government student loan and bursary program. However, because the Remedial Education students were in high school, the government witness admitted that the only money that they would receive through student loans would be to pay for specific school-related expenses such as books and school supplies. As such, the student loan program did not raise the Remedial Education participant's benefits to the same level as those 30 and over. In reality, given that almost 50 percent of participants under 30 were involved with the Remedial Education Program, this meant that a very large portion of the participants would not be receiving the full amount of benefits that those 30 and over were receiving.

[278] It might be argued that the value of the education and experience being derived from such programs cannot be calculated on a purely pecuniary basis. I would agree that the power of education can be invaluable to its recipient. However, the strength of this argument is diminished by the fact that the cost of this education is, in this case, the reduction of benefits that are supposed to guarantee certain standards of minimal subsistence. While the long-term value of the education and experience is certainly important, this must be balanced against the short-term need for survival that social assistance is intended to placate. Moreover, those people who participated in the programs who were not under 30 were not required to make a similar sacrifice.

[279] Second, the design of the programs was not tailored in such a way as to ensure that there would always be programs available to those who wanted to participate. For instance, for a student who could not find a job after finishing school, the Remedial Education Program was only available after 9 months. The On-the-job Training Program was only available after 12 months. This left the Community Work Program, which, given its very remedial nature, may not have been useful to everyone, and was prioritized for those who had been on social assistance for more than 12 months. The existence of this priority is itself evidence that the programs were not available to all applicants at all times. For someone who had completed CEGEP, the Remedial Education and On-the-job Training Programs would simply be unavailable. Even if he or she were then able to participate in the Community Work Program, this would only last for one year, after which the young social assistance recipient would, because of the 12-month limit on the program, be left with no program in which to participate. Take someone like Ms. Gosselin, whose prospects for moving into the private workforce, like many in her situation, do not, unfortunately, appear to have been very promising. After one year in a Community Work Program (and, if they could find one, a year in an On-the-job Training placement), she would be unable to receive the same benefit as someone 30 or over. Thus, in reality, the system of training and education gave social assistance recipients under 30 who were able to access programs two years to get a job before they had their benefit reduced to $ 170 per month - with some extra time available at a moderately reduced rate for those who had not yet received their high school diploma.

[280] Another substantive flaw in the design of the programs was that faced by illiterate or severely undereducated persons, who were unable to participate in the Remedial Education Program. While ineligible for the Remedial Education Program, such persons would also face difficulty entering On-the-job Training, and would thus be left with the Community Work Program, which, as has been noted, was limited to one year. This flaw was apparently addressed in 1989 with the creation of a special literacy program, but it nonetheless serves as an example of another situation where even those participants who were willing to participate were at times unable to do so.

[281] Third, in addition to the problems with the design of the programs, their implementation presented still more hurdles which young recipients were forced to overcome. For instance, when a person under 30


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years of age found himself or herself on social assistance, he or she would have to organize a meeting with a social aid worker. An "evaluation interview" would follow, sometimes several, in order to determine what type of program would be best suited to the recipient. This process would sometimes take several weeks. Then, once it was determined which program would be best, there was often another delay, as space in the program in which the recipient could participate had to be found. If, for instance, someone wanted to participate in the Remedial Education Program in June, he or she would have to wait until September, for school to start. In the case of the On-the-job Training Program, the process provided that one would have to wait until a suitable employer was found. Also, the employer had the final say as to whether he or she wished to hire a particular individual. This caused more delay. Once a placement was completed, this process was started all over again. Thus, in the course of his or her time on social assistance, a young person desiring to receive the full benefit of the programs would most likely spend at least a month or two on the reduced benefit.

[282] Given the precarious situation of those on social assistance, even a short lapse in additional benefits was certainly enough to cause major difficulties in the recipients' lives, difficulties that someone 30 and over would not have to face. Ms. Gosselin herself spent a considerable amount of time between programs, this sometimes leading to periods of mental breakdown. One government witness described the situation of many of those young people on social assistance as being an existence "on the edge of capacity" - walking a tightrope along the border of aptness and inaptitude for work. Falling back onto the reduced amount was therefore a very real possibility that could have exaggerated effects on the capacity of young recipients to cope with life.

[283] A fourth and final reason why the approach taken by the government was not reasonably minimally impairing was the fact that even though 85 000 single people under 30 years of age were on social assistance, the government at first only made 30000 program places available. The respondent argues, and Baudoin J.A. agreed, that the government should not have been forced to open up places for everyone when it knew that not everyone would participate. I think this is right. The government did not have to prove that it had 85 000 empty chairs waiting in classrooms and elsewhere. However, 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) was geared towards improving the situation of those under 30, as opposed to simply saving money. The government noted that many places did not have to be made available because 50 percent of young people were thought to be living with their parents. As noted earlier, this was not proven and if true would have left 50 percent of recipients in an unjustified state of deprivation. Also, it is by no means clear why young persons living at home would not want to take advantage of such programs if they provided them with an extra $ 296 per month. Moreover, it is not clear why, if the object of s. 29(a) was to encourage the integration of young people into the workforce, the government would not expect or want those on social assistance who were living at home to participate in the programs.

[284] The government maintains that it always had more places available if the need arose, but the evidence has left me questioning how a program such as On-the-job Training which relied on private enterprises to provide jobs could provide an endless stream of positions for any young person on social assistance who wanted one. It also seems somewhat disingenuous to suggest that there were unlimited spaces in the program when the program profiles clearly outline that some groups were to be specifically targeted, others given preference. How can there be preferences when access to the programs is unlimited? It also seems odd that a government that claims it would not have been able to eliminate the reduced benefit level for people under 30 for economic reasons would have been able to support a program in which a significant portion of those persons participated in the programs and, therefore, had their benefits increased to the normal level. If legislation is found to infringe upon a group's right and the government claims that the right is minimally impaired due to the operation of another program, the fact that only 20 percent of the affected group participates would seem to suggest that the right was not being reasonably infringed.


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[285] Accordingly, I would hold that, even according a high degree of deference, the respondent has failed to demonstrate that the provision in question constituted a means of achieving the legislative objective that was reasonably minimally impairing in respect of the appellant's equality rights. Other reasonable alternatives to achieve the objective were available. The approach taken by the government involved providing a vulnerable group with a base amount of money that was one third of the level the government itself had deemed to be a subsistence level for others and, moreover, the programs themselves were additionally found to have several important shortcomings. This was not minimally impairing of the right. The respondent has therefore failed to meet its burden of demonstrably justifying the limitation on the appellant's rights.

[286] Even accepting the general approach of differentiating between those under 30 and those 30 and over that the legislature adopted to achieve its objectives, there are several other means by which the substantive equality of young people would have been considerably more respected and less impaired. First, as Robert J.A. suggested, the full benefit could have been extended to those individuals who had expressed their willingness to participate in a program, as opposed to requiring them to be at all times participating in programs that, by their design and implementation, did not allow for constant participation. Another approach, given the government's opinion that the majority of young people on welfare were living at home and therefore did not require the full benefit, would have been to tie the benefits to whether the recipient - whatever his or her age - was actually living at home. This was already being done for other recipients since anyone 30 or over living with family had his or her benefits reduced by $ 85. This would have had the effect of recognizing that many young people did not require the full amount of social assistance, while basing the amount awarded on their actual situation as opposed to the proxy of age.

[287] Having found that the legislation was not minimally impairing of the appellant's right to equality, I would hold that the legislation was not a reasonable limit on the right that was demonstrably justified. The final branch of the Oakes test need not therefore necessarily be addressed. However, given the deleterious effect that the legislation had on the appellant's right it would, I believe, be useful to consider that branch of the test as well.

(4) Proportionality

[288] At this stage of the Oakes test, a court must determine whether the deleterious effects that a legislative provision has on a given rights holder are outweighed by the salutary effects of the same legislation in achieving the stated government objective. Here, again, I agree with Robert J.A. It is clear from the evidence that $ 170 per month is not enough money for one to live on. While the government claims that those under 30 had the right to increased benefits if they participated in the programs, there were clear holes in the programs which prevented certain individuals, at certain times, from accessing the additional benefits. Moreover, Remedial Education students never achieved parity. In fact, though this is not determinative, only 11 percent of single persons under 30 years of age who were on social assistance actually received what the government had determined to be the basic amount needed to support one's self. This constitutes a severe deleterious effect on the equality and self-worth of the appellant and those in her group. With respect to the salutary effects side of the equation, the government was not required to demonstrate that the programs had any actual significant salutary effect on the well-being of young people; it nevertheless had to demonstrate that the reduction in benefits would reasonably be expected to facilitate the integration of the younger social assistance beneficiaries in the workplace. This onus has not been met.

[289] The respondent argues that government cannot be held responsible for the "partial failures" of legislation. She insists that the government had a real concern for the situation in which young people found themselves and attempted to craft a program that would benefit them. While the effects stage of the Oakes test should not be an opportunity for courts to punish governments for failed legislative undertakings, when the potential deleterious effects of the legislation are so apparent, I do not believe that


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it is asking too much of the government to craft its legislation more carefully. Given the economic data that the government has presented in evidence, it was entirely foreseeable that upon completion of the programs, the opportunities for young people to integrate into the workforce would continue to be limited. There was no justification presented for leaving them on the reduced benefit at that point in time, regardless of the problem of delays earlier discussed.

[290] Accordingly, I find that s. 29(a) of the Regulation's Charter breach should not be upheld as a justified and reasonable limit under s. 1. In the legislative and social context of the legislation, which provided a safety net for those without means to support themselves, a rights-infringing limitation must be carefully crafted. In this case, the programs left too many opportunities for young people to fall through the seams of the legislation. This is borne out to some degree by the low participation rate among beneficiaries under the age of 30 and the fact that there was no basis for the assumption that beneficiaries under 30 were living with their parents and had lesser needs. While the respondent argues that no evidence was presented to show that most if any of the 73 percent of recipients under 30 were not participating in the programs for anything more than personal reasons, I would point out that at the s. 1 stage of analysis, it is the government's responsibility to show that the legislation limits the right as little as reasonably possible. (…)

ARBOUR J.

[307] The facts, as well as the history of this litigation, are set out at length in my colleagues' opinions and I need not repeat them here. Essentially, the appellant asserts on her own behalf and on behalf of a class of claimants that a provision of the regulations under the Social Aid Act, R.S.Q., c. A-16, in force between 1984 and 1989 which provided for lesser benefits for single adults under the age of 30 than for those 30 and over was unconstitutional as violating ss. 7 and 15 of the Canadian Charter of Rights and Freedoms.

[308] I would allow this appeal on the basis of the appellant's s. 7 Charter claim. In doing so, I conclude that the s. 7 rights to "life, liberty and security of the person" include a positive dimension. Few would dispute that an advanced modern welfare state like Canada has a positive moral obligation to protect the life, liberty and security of its citizens. There is considerably less agreement, however, as to whether this positive moral obligation translates into a legal one. Some will argue that there are interpretive barriers to the conclusion that s. 7 imposes a positive obligation on the state to offer such basic protection.

[309] In my view these barriers are all less real and substantial than one might assume. This Court has never ruled, nor does the language of the Charter itself require, that we must reject any positive claim against the state -- as in this case -- for the most basic positive protection of life and security. This Court has consistently chosen instead to leave open the possibility of finding certain positive rights to the basic means of subsistence within s. 7. In my view, far from resisting this conclusion, the language and structure of the Charter -- and of s. 7 in particular -- actually compel it. Before demonstrating all of this it will be necessary to deconstruct the various firewalls that are said to exist around s. 7, precluding this Court from reaching in this case what I believe to be an inevitable and just outcome.

I. Preliminary Concerns

[310] It is often suggested that s. 7 of the Charter cannot impose positive legal obligations on government. Before embarking on the usual textual, purposive and contextual analysis required in constitutional interpretation, it is therefore necessary to address the barriers that are traditionally said to preclude a priori a positive claim against the state under s. 7.

A. Economic Rights

[311] There was some discussion in the courts below concerning whether s. 7 extends its protection to the class of so-called "economic rights". That discussion gets its impetus from certain dicta of Dickson C.J. in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927. In Irwin Toy, Dickson C.J. compared the wording of s. 7 to similar provisions in the American Bill of Rights and noted the following, at p. 1003:


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"The intentional exclusion of property from s. 7, and the substitution therefor of "security of the person" ... leads to a general inference that economic rights as generally encompassed by the term "property" are not within the perimeters of the s. 7 guarantee."

This has no relevance to the present appeal. On its face, the statement purports to rule out of s. 7 only those economic rights that are generally encompassed by the term "property". The appellant in this case makes no claim that could reasonably be construed as a claim to a right of property. Indeed, the claim she does make -- namely, to a level of social assistance adequate for the provision of her basic needs of subsistence -- is one which Dickson C.J. explicitly excepted from his statement in Irwin Toy, at p.1003-4:

"This is not to declare, however, that no right with an economic component can fall within "security of the person". Lower courts have found that the rubric of "economic rights" embraces a broad spectrum of interests, ranging from such rights, included in international covenants, as rights to social security, equal pay for equal work, adequate food, clothing and shelter, to traditional property-contract rights. To exclude all of these at this early moment in the history of Charter interpretation seems to us to be precipitous. We do not, at this moment, choose to pronounce upon whether those economic rights fundamental to human life or survival are to be treated as though they are of the same ilk as corporate-commercial economic rights."

This prudent exercise in judicial restraint was understandable given that, unlike the case here, the question was not directly relevant in Irwin Toy. The instant appeal, in contrast, makes obvious why "those economic rights fundamental to human life or survival" should not in fact be treated as of the same ilk as corporate-commercial economic rights. Simply put, the rights at issue here are so intimately intertwined with considerations related to one's basic health (and hence "security of the person") -- and, at the limit, even of one's survival (and hence "life") -- that they can readily be accommodated under the s. 7 rights of "life, liberty and security of the person" without the need to constitutionalize "property" rights or interests.

[312] Indeed, the rights at issue in this case are so connected to the sorts of interests that fall under s. 7 that it is a gross mischaracterization to attach to them the label of "economic rights". Their only kinship to the economic "property" rights that are ipso facto excluded from s. 7 is that they involve some economic value. But if this is sufficient to attract the label "economic right", there are few rights that would not be economic rights. It is in the very nature of rights that they crystallize certain benefits, which can often be quantified in economic terms. What is truly significant, from the standpoint of inclusion under the rubric of s. 7 rights, is not therefore whether a right can be expressed in terms of its economic value, but as Dickson C.J. suggests, whether it "falls within 'security of the person'" or one of the other enumerated rights in that section. It is principally because corporate-commercial "property" rights fail to do so, and not because they contain an economic component per se, that they are excluded from s. 7. Conversely, it is because the right to a minimum level of social assistance is clearly connected to "security of the person" and "life" that it distinguishes itself from corporate-commercial rights in being a candidate for s. 7 inclusion.

[313] In my view, this tells decisively against any argument that relies upon a supposed economic rights prohibition within s. 7 of the Charter. There is, however, a related argument, advanced by Professor Hogg among others, to suggest that the kind of interest claimed by the appellant in this case cannot fall within the scope of s. 7 (P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at p. 44-12.1):

"The trouble ... is that it accords to s. 7 an economic role that is incompatible with its setting in the legal rights portion of the Charter -- a setting that the Supreme Court of Canada has relied upon as controlling the scope of s. 7."

As I understand the argument it purports to rule out the kind of interest claimed here, not so much because it has an economic component (though that is ostensibly part of the objection), but because it fails to exhibit the characteristics of a "legal right". I take this last point to be the real thrust of the objection, since the argument would lose its teeth against an historically recognized legal right which nevertheless also had


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an economic component: for example, the right to a trial by jury in certain criminal cases, which right inevitably involves incurring additional costs in the administration of justice. I will now turn to this specific issue.

B. Legal Rights

[314] The argument is that s. 7 is an umbrella of legal rights and that ss. 8 to 14, using a kind of ejusdem generis rule, inform and limit its scope. This restrictive interpretation of s. 7 formed no part of the reasoning in Irwin Toy that excluded corporate-commercial property rights from s. 7. Rather, it seems to have had its genesis in the concurring reasons of Lamer J. (as he then was) in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 ("Prostitution Reference"), at pp. 1171-74, where he observed that:

"The guarantees of life, liberty and security of the person are placed together with a set of provisions ... which are mainly concerned with criminal and penal proceedings... It is significant that the rights guaranteed by s. 7 as well as those guaranteed in ss. 8-14 are listed under the title "Legal Rights", or in the French version "Garanties juridiques". The use of the term "Legal Rights" suggests a distinctive set of rights different from the rights guaranteed by other sections of the Charter...

Section 7 and more specifically ss. 8-14 protect individuals against the state when it invokes the judiciary to restrict a person's physical liberty through the use of punishment or detention, when it restricts security of the person, or when it restricts other liberties by employing the method of sanction and punishment traditionally within the judicial realm."

[315] This approach to s. 7, curtailing its footprint to "legal rights" of the type contained in ss. 8 to 14, has been attenuated in more recent cases. For example, in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44, this Court held (at para. 46) that "section 7 can extend beyond the sphere of criminal law, at least where there is 'state action which directly engages the justice system and its administration'" (emphasis added). The recognition in that case that s. 7 protection extends beyond the criminal or penal context was in itself nothing new. What was noteworthy in Bastarache J.'s dictum was the suggestion, implied by his use of the phrase "at least", that s. 7 might even extend beyond the justice system and its administration. That his use of this phrase should be interpreted permissively rather than restrictively was later confirmed indirectly in G. (D.F.), [2000] 2 S.C.R. 519, 2000 SCC 48. In that case, this Court found that apprehension of a child by an agent of the state, pursuant to legislative authority and in the absence of a judicial order, constituted a deprivation of the parents' security of the person. While the Court went on to find the deprivation to be in conformity with the principles of fundamental justice, what is significant for present purposes is that the right to security of the person was found to be implicated by state action that had little relation to any judicial or quasi-judicial proceeding. The apprehension itself was entirely disconnected from the justice system and its administration and simply involved implementation of a legislative provision by a government official.

[316] In the light of these recent developments, I think that there is considerable room for doubt as to whether the placement of s. 7 within the "Legal Rights" portion of the Charter is controlling of its scope. Moreover, the appeal to a Charter subheading as a way of limiting the kinds of interests that are protected by a rights-granting provision appears to be at odds with the generous and purposive approach that this Court has repeatedly identified as the proper approach to the interpretation of Charter rights. (…). Indeed, it is more consistent with the kind of "legalistic" interpretation associated with cases decided under the Canadian Bill of Rights, R.S.C. 1985, App. III, and that Dickson J. (as he then was) specifically contrasted with the purposive approach in R. v. Big M Drug Mart Ltd., supra, at p. 344:

"The meaning of a right or freedom guaranteed by the Charter [is] to be ascertained by an analysis of the purpose of such a guarantee; it [is] to be understood, in other words, in the light of the interests it [is] meant to protect.


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The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection. [Emphasis added; emphasis in original deleted.]"

Whereas the course of s. 7 jurisprudence may have once supported a legalistic reliance on the subheading "Legal Rights" as a way of delimiting the scope of s. 7 protection, the more recent turn in s. 7 jurisprudence indicates that this interpretive device has been supplanted by a purposive and contextual approach to the recognition of constitutionally protected rights.

[317] Finally, one should not underestimate the significance of the historical context in which Lamer J. made his comments in the Prostitution Reference, supra. At the time, almost all s. 7 cases involved challenges to state action in the context of criminal proceedings. It might then have appeared that this was the range of interests that s. 7 was meant to protect. The evolution of the case law no longer compels that conclusion. As s. 7 jurisprudence has developed, 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 now 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 that is inconsistent with the vision of the Constitution as a "living tree" which has always been part of the Canadian constitutional landscape. As this Court recognized in Reference Re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158, at p. 180:

"The doctrine of the constitution as a living tree mandates that narrow technical approaches are to be eschewed... It also suggests that the past plays a critical but non-exclusive role in determining the content of the rights and freedoms granted by the Charter. The tree is rooted in past and present institutions, but must be capable of growth to meet the future."

[318] In spite of this, some will suggest that we must distinguish cases like K.L.W., supra, from the instant appeal on the basis that it is difficult to point to any affirmative state action in the present case which could properly be said to constitute a violation of one of the enumerated rights in s. 7. Whatever the merits of this argument, it is important to keep it distinct from the "Legal Rights" argument which has been the focus of the present discussion. The significance of cases like Blencoe and K.L.W. in the context of this discussion is that they make room for the kind of interest at issue in this appeal by relaxing any supposed requirement that the right claimed under s. 7 display the characteristics of a "legal right" similar in nature to those at stake in the administration of criminal justice. Whether these cases -- or others -- would also bar the present action by imposing another requirement of affirmative (or positive) state action as a sine qua non of s. 7 protection is a different question, to which I now turn.

C. Negative vs. Positive Rights and the Requirement of State Action

[319] There is a suggestion that s. 7 contains only negative rights of non-interference and therefore cannot be implicated absent any positive state action. This is a view that is commonly expressed but rarely examined. It is of course true that in virtually all past s. 7 cases it was possible to identify some definitive act on the part of the state which could be said to constitute an interference with life, liberty or security of the person and consequently ground the claim of a s. 7 violation. It may also be the case that no such definitive state action can be located in the instant appeal, though this will largely depend on how one chooses to define one's terms and, in particular, the phrase "state action". One should first ask, however, whether there is in fact any requirement, in order to ground a s. 7 claim, that there be some affirmative state action interfering with life, liberty or security of the person, or whether s. 7 can impose on the state a duty to act where it has not done so. (I use the terms "affirmative", "definitive" or "positive" to mean an identifiable action in contrast to mere inaction). No doubt if s. 7 contemplates the existence only of negative rights, which are best described as rights of "non-interference", then active state interference with one's life, liberty or security of the person by way of some definitive act will be necessary in order to engage the protection of that section. But if, instead, s. 7 rights include a positive dimension, such that they are not merely rights of non-interference but also what might be described as rights of "performance",


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then they may be violable by mere inaction or failure by the state to actively provide the conditions necessary for their fulfilment. We must not sidestep a determination of this issue by assuming from the start that s. 7 includes a requirement of affirmative state action. That would be to beg the very question that needs answering.

[320] It is not often clear whether the theory of negative rights underlying the view that s. 7 can only be invoked in response to a definitive state action is intended to be one of general application, extending to the Charter as a whole, or one that applies strictly to s. 7. As a theory of the Charter as a whole, any claim that only negative rights are constitutionally recognized is of course patently defective. The rights to vote (s. 3), to trial within a reasonable time (s. 11(b)), to be presumed innocent (s. 11(d)), to trial by jury in certain cases (s. 11(f)), to an interpreter in penal proceedings (s. 14), and minority language education rights (s. 23) to name but some, all impose positive obligations of performance on the state and are therefore best viewed as positive rights (at least in part). By finding that the state has a positive obligation in certain cases to ensure that its labour legislation is properly inclusive, this Court has also found there to be a positive dimension to the s. 2(d) right to associate ... Finally, decisions like Schachter v. Canada, [1992] 2 S.C.R. 679, and Vriend, supra, confirm that "in some contexts it will be proper to characterize s. 15 as providing positive rights" (Schachter, supra, at p. 721). This list is illustrative rather than exhaustive.

[321] Moreover, there is no sense in which the actual language of s. 7 limits its application to circumstances where there has been positive state interference. It is sometimes suggested that the requirement is implicit in the use of the concept of "deprivation" within s. 7. This is highly implausible. The Shorter Oxford English Dictionary (3rd ed. 1973), vol. 1, at p. 524, defines the term "deprive" in such a way as to include, not only active taking away, divesting, or dispossession, but also mere "keeping out of [or] debaring from". In other words, 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.

[322] Nor does the phrase "principles of fundamental justice" contain a requirement of positive state action by necessary implication, particularly when one rejects a restrictive interpretation of s. 7 confining it to a "Legal Rights" umbrella. If s. 7 were nothing more than a composite of the other "legal rights", one might think that it only comes into play when the machinery of justice is activated by the state. But I have already indicated why in my view we must reject the assumption that s. 7 protects only against the kinds of incursions one might expect to suffer in connection with one's dealings with the justice system and its administration. This obliterates the foundation for the idea that the phrase "principles of fundamental justice" includes an implicit requirement of positive state action. It also leaves s. 7 bereft of any trace of language that might contain a requirement of positive state action before a breach may occur.

[323] In fact, the context in which s. 7 is found within the Charter's structure favours the conclusion that it can impose on the state a positive duty to act. Even though s. 7 cannot be reduced to an "umbrella" of the "legal rights" contained in ss. 8 to 14, there is often overlap between the two. This Court has in the past emphasized the connection of these sections to s. 7 itself. In Re B.C. Motor Vehicle Act, supra, at pp. 502-3, Lamer J. indicated that ss. 8 to 14 are "illustrative" of the principles of fundamental justice that are referred to in s. 7 (see also, the Prostitution Reference, supra, at pp. 1171-72). Given this, if some of these "principles of fundamental justice" in ss. 8 to14 entrench positive rights, one should expect that s. 7 rights would also contain a positive dimension. No doubt this is what prompted Lamer C.J. to make the following observation in Schachter, supra, at p. 721: "the right to life, liberty and security of the person is in one sense a negative right, but the requirement that the government respect the 'fundamental principles of justice' may provide a basis for characterizing s. 7 as a positive right in some circumstances".

[324] Finally, the case law is consistent with the view that s. 7 includes a positive dimension. In New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 107, this Court explicitly held that s. 7 provided a positive right to state-funded counsel in the context of a child custody hearing. Lamer C.J. put the point quite baldly: "The omission of a positive right to state-funded


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counsel in s. 10 ... does not preclude an interpretation of s. 7 that imposes a positive constitutional obligation on governments to provide counsel in those cases when it is necessary to ensure a fair hearing."

[325] One must resist the temptation to dilute the obvious significance of this decision by attempting to locate the threat to security of the person in G. (J.) in state action. It is of course true that the proceedings at issue in G. (J.) were initiated by the government. But Lamer C.J. pointed out that it was not the actions of the state in initiating the proceedings, per se, that gave rise to the potential s. 7 violation. Rather, "the potential s. 7 violation ... would have been the result of the failure of the Government of New Brunswick to provide the appellant with state-funded counsel ... after initiating proceedings under Part IV of the Family Services Act" (G. (J.), supra, at para. 91 (emphasis added)). This focus on state omission rather than state action is consistent with Lamer C.J.'s characterisation of the state's obligation to provide counsel as a positive obligation. It is in the very nature of such obligations that they can be violated by mere inaction, or failure to perform the actions that one is duty-bound to perform.

[326] In Blencoe, supra, this Court considered whether a state-caused delay in moving forward a human rights complaint violated the psychological integrity, and hence personal security, of the individual against whom the complaint was being made by subjecting him to prolonged and undue stigma. Bastarache J. stated at para. 57 that in order for state interference with an individual's psychological integrity to engage s. 7, "the psychological harm must be state imposed, meaning that the harm must result from the actions of the state" (emphasis deleted). This passage may appear to support the idea that positive state action is required to engage s. 7. There are, however, good reasons to find that it is not. For example, there are special problems relating to causation in the context of s. 7 claims involving psychological integrity which may support the need for a requirement of state action in such cases, without importing that requirement into s. 7 as a whole. Moreover, while this Court found on the particular facts of that case that there was no s. 7 violation, it also allowed that such state-caused delay might sometimes constitute a s. 7 violation, even if "only in exceptional cases" (Blencoe, at para. 83). In other words, Blencoe held that state-caused delay -- the inertia (or lack of action) in moving a case forward -- was not in itself incompatible with the s. 7 requirement that the impugned harm must result from "actions of the state". Therefore, Blencoe does not hold that all s. 7 protection is limited to cases in which one's life, liberty or security of the person is violated by positive state action. Quite the contrary, it implies that such protection will sometimes be engaged by mere state inaction.

[327] Nor does there appear to be any support for the opposite conclusion in other case law emanating from this Court. Far from it, by impliedly sanctioning state inaction as a sufficient ground for making a s. 7 claim in at least some circumstances, Blencoe and G. (J.) are entirely consistent with other Supreme Court case law on point, sparse as it is. Thus, in Dunmore, supra, at para. 22, this Court held that "exclusion from a protective regime may in some contexts amount to an affirmative interference with the effective exercise of a protected freedom". Dunmore confirms that state inaction -- the mere failure of the state to exercise its legislative choice in connection with the protected interests of some societal group, while exercising it in connection with those of others -- may at times constitute "affirmative interference" with one's Charter rights. Thus in certain contexts, the state is under a positive duty to extend legislative protections where it fails to do so inclusively.

[328] Of course, it may well be that in order for such positive obligations to arise the state must first do something that will bring it under a duty to perform. But even if this is so, it is important to recognize that the kind of state action required will not be action that is causally determinative of a right violation, but merely action that "triggers", or gives rise to, a positive obligation on the part of the state. Depending on the context, we might even expect to see altogether different kinds of state action giving rise to a positive obligation under s. 7. In the judicial context, it will be natural to find such a state action in the initiation by the state of judicial proceedings. In the legislative context, however, it may be more appropriate, following cases like Vriend and Dunmore, to search for it in the state's decision to exercise its legislative choice in a non-inclusive manner that significantly affects a person's enjoyment of a Charter right. In other words, in


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certain contexts the state's choice to legislate over some matter may constitute state action giving rise to a positive obligation under s. 7.

[329] The finding that s. 7 may impose positive obligations on the state brings us directly to a frequently expressed objection in the context of claims like the ones at issue in the present case that courts cannot enforce positive rights of an individual to the basic means of basic subsistence. The suggestion is that they cannot do so without being drawn outside their proper judicial role and into the realm of deciding complex matters of social policy better left to legislatures. I turn now to this concern.

D. Justiciability

[330] I found the obstacles to positive claims considered in the last sections to be unfounded under a correct interpretation of the Charter. In contrast, the concern I discuss now may present a barrier to some claimants under particular circumstances. However, it does not do so in the present case for reasons I explain below. The ostensible difficulty that confronts the appellant here is the general assertion that positive claims against the state for the provision of certain needs are not justiciable because deciding upon such claims would require courts to dictate to the state how it should allocate scarce resources, a role for which they are not institutionally competent. Professor Hogg, supra, puts the point as follows (at p. 44-12.1): "[This] involves a massive expansion of judicial review, since it would bring under judicial scrutiny all of the elements of the modern welfare state ....As Oliver Wendell Holmes would have pointed out, these are the issues upon which elections are won and lost ...."

[331] While the claim asserted here hardly in itself has the potential to bring "all of the elements of the modern welfare state" under judicial scrutiny, the concern raised by this justiciability argument is a valid one. Questions of resource allocation typically involve delicate matters of policy. Legislatures are better suited than courts to addressing such matters, given that they have the express mandate of the taxpayers as well as the benefits of extensive debate and consultation.

[332] It does not follow, however, that courts are precluded from entertaining a claim such as the present one. While it may be true that courts are ill-equipped to decide policy matters concerning resource allocation -- questions of how much the state should spend, and in what manner -- this does not support the conclusion that justiciability is a threshold issue barring the consideration of the substantive claim in this case. As indicated above, this case raises altogether a different question: namely, whether the state is under a positive obligation to provide basic means of subsistence to those who cannot provide for themselves. In contrast to the sorts of policy matters expressed in the justiciability concern, this is a question about what kinds of claims individuals can assert against the state. The role of courts as interpreters of the Charter and guardians of its fundamental freedoms against legislative or administrative infringements by the state requires them to adjudicate such rights-based claims. One can in principle answer the question of whether a Charter right exists -- in this case, to a level of welfare sufficient to meet one's basic needs -- without addressing how much expenditure by the state is necessary in order to secure that right. It is only the latter question that is, properly speaking, non-justiciable.

[333] Of course, in practice it will often be the case that merely knowing whether the right exists is of little assistance to the claimant. For, unless we also know what is required, or how much expenditure is needed, in order to safeguard the right, it will usually be difficult to know whether the right has been violated. This difficulty does not arise in the present case. Once a right to a level of welfare sufficient to meet one's basic needs is established, there is no question on the facts of this case that the right has been violated. This Court need not enter into the arena of determining what would satisfy such a "basic" level of welfare because that determination has already been made by the legislature, which is itself the competent authority to make it.

[334] Indeed, the very welfare scheme that is challenged here includes provisions that set out the basic amount. Section 23 of the Regulation respecting social aid, R.R.Q. 1981, c. A-16, r. 1, provides that the amount receivable is established according the "ordinary needs" ("besoins ordinaires") of the recipients.


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The bare minimum a single adult aged 30 or over can receive is $ 466. This is the amount that was deemed by the legislature itself to be sufficient to meet the "ordinary needs" of a single adult. The present case comes before us on the basis that the government failed to provide a level of assistance that, according to its own standards, was necessary to meet the ordinary needs of adults aged 18 to 30. The only outstanding questions are whether this is in fact established and, if so, whether the claimants had a right to the provision of their ordinary needs.

[335] Thus any concern over the justiciability of positive claims against the state has little bearing on this case. At any rate, these issues, to some extent, obscure the real question. At this stage we are less concerned with what, if anything, the state must do in order to bring itself under a positive obligation than with whether s. 7 can support such positive obligations to begin with. I have already indicated several reasons for thinking that it can. I now want to supplement these reasons by means of an interpretive analysis of s. 7. As it turns out, any acceptable approach to Charter interpretation -- be it textual, contextual, or purposive -- quickly makes apparent that interpreting the rights contained in s. 7 as including a positive component is not only possible, but also necessary.

II. Analysis of Section 7 of the Charter

A. Textual Interpretation: The Language of Section 7

[336] My colleague Bastarache J. rightly notes that "without some link to the language of the Charter, the legitimacy of the entire process of Charter adjudication is brought into question" (para. 214). With this in mind, I set out s. 7 in its entirety: " 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [Emphasis added.]"

I have drawn attention to the conjunction in s. 7 for two reasons: first, it constitutes an integral part of the grammatical structure of the section; and second, up until now, it has not been the subject of much judicial attention.

[337] This is surprising. The two parts of the section could as easily have been punctuated to form more or less separate sentences. … My reasons for emphasizing this grammatical point are straightforward. Past judicial treatments of the section have habitually read out of the English version of s. 7 the conjunction and, with it, the entire first clause. The result is that we typically speak about s. 7 guaranteeing only the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice. On its face, this is a questionable construction of the language of s. 7: for it equates the protection of the second clause alone with the protection of the section as a whole. We no doubt would be less likely to make this equation had the two clauses been punctuated rather than conjoined. As it turns out, moreover, our failure to have due regard for the structure of the section has potentially dramatic consequences for the scope of the s. 7 guarantee. This was implicitly recognized by Lamer J. in Re B.C. Motor Vehicles Act, supra, at p. 500:

"It is clear that s. 7 surely protects the right not to be deprived of one's life, liberty and security of the person when that is done in breach of the principles of fundamental justice. The outcome of this case is dependent upon the meaning to be given to that portion of the section which states "and the right not to be deprived thereof except in accordance with the principles of fundamental justice". On the facts of this case it is not necessary to decide whether the section gives any greater protection, such as deciding whether, absent a breach of the principles of fundamental justice, there still can be, given the way the section is structured, a violation of one's rights to life, liberty and security of the person under s. 7. [Emphasis added.]"

The quoted passage indicates that, from the earliest stages of s. 7 interpretation, this Court has considered it a very live issue whether the first clause in s. 7 involves some greater protection than that accorded by the second clause alone.


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[338] It is in fact arguable, as Professor Hogg, supra, points out (at p. 44-3), "that s. 7 confers two rights": a right, set out in the section's first clause, to "life, liberty and security of the person" full stop (more or less); and a right, set out in the section's second clause, not to be deprived of life, liberty or security of the person except in accordance with the principles of fundamental justice. Wilson J. explicitly considered this interpretation of s. 7 in Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 488. Although in that case she expressed misgivings regarding the feasibility of the interpretation, she ultimately left its status undecided. In fact, in Re B.C. Motor Vehicle Act, supra, at p. 523, which was heard later in the same year, she may have overcome her earlier misgivings and impliedly accepted the two-rights interpretation by stating that a deprivation of life, liberty or security of the person would require s. 1 justification even if the principles of fundamental justice were satisfied. Her statement in this regard is consistent with the notion that the first clause in s. 7 affords additional protection, over and above that afforded in the second clause, with the result that mere compliance with the principles of fundamental justice does not in itself guarantee that the rights to life, liberty and security of the person will not be violated.

[339] The two-rights interpretation of s. 7 has fallen into relative obscurity since these latest references to it by Lamer and Wilson JJ. in Re B.C. Motor Vehicle Act, supra. To some extent, this was to be expected. As indicated above, this Court has most often had occasion to visit issues of s. 7 interpretation in criminal, or quasi-criminal, contexts. In those contexts, there is little need to concern ourselves with any potentially self-standing right in the first clause of s. 7. Since what we are concerned with in such penal cases is the constitutional validity of positive state action that actively deprives individuals of their liberty, it is not surprising that the s. 7 analysis would focus only upon the second clause, which deals with those types of deprivation. Re B.C. Motor Vehicles Act was a case in point. Unlike Lamer J. in that case, however, we have not always been careful in such cases to delineate the scope of our s. 7 discussion. This has led to a general impression that s. 7 is reduced to the right contained in the second clause.

[340] As I have already suggested, this is not a plausible construction of the text of s. 7. Only by ignoring the structure of s. 7 -- by effectively reading out the conjunction and, with it, the first clause -- is it possible to conclude that it protects exclusively "the right not to be deprived of life, liberty or security of the person except in accordance with the principles of fundamental justice". There may be some question as to how far, precisely, the protection of s. 7 extends beyond this, but that the section's first clause affords some additional protection seems, as a purely textual matter, beyond reasonable objection.

[341] The instant appeal requires us to consider, perhaps for the first time, what this additional protection might consist of. Without wanting to limit the possibilities at this early stage of interpreting the first clause, there are at least two alternatives that present themselves. The first was alluded to by both Lamer and Wilson JJ. in Re B.C. Motor Vehicle Act, supra. In essence, it entails reading the first clause as providing for a completely independent and self-standing right, one which can be violated even absent a breach of fundamental justice, but requiring a s. 1 justification in the event of such violation. This interpretation gets its starting point from the fact that the first clause of s. 7 makes no mention of the principles of fundamental justice. It follows, the thinking goes, that the right to life, liberty and security of the person provided for in the first clause can be violated even where the state conducts itself in accordance with the principles of fundamental justice. And since the justificatory analysis under s. 1 was, at an early stage of Charter jurisprudence, given a very limited role in the context of s. 7 violations primarily because it was thought that the violation of a right in breach of fundamental justice could almost never be justified, this interpretation restores to s. 1 a more active role to play in the context of at least some s. 7 violations.

[342] Another possible interpretation of what the additional protection afforded by the first clause of s. 7 consists of focuses less on the omission of any reference to the principles of fundamental justice, and more on its failure to make any mention of the term "deprivation". There is indeed something plausible in the idea that, by omitting such language, the first clause extends the right to life, liberty and security of the person beyond protection against the kinds of state action that have habitually been associated with the


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term "deprivation". Essentially, this interpretation would suggest that by omitting the term "deprivation" in the first clause, the section implies that it is at most in connection with the right afforded in the second clause, if at all (see supra, at para. 321), that there must be positive state action in order to ground a violation; the right granted in the first clause would be violable merely by state inaction.

[343] I need not decide here which of these two interpretations, if any, is to be preferred. Indeed, they do not appear to be mutually exclusive. For the purposes of the present appeal, it suffices to raise the following two points: first, either interpretation is preferable to the way s. 7 has habitually been interpreted to this point in time, not only textually but also, as I will now demonstrate, from the standpoints of contextual and purposive analysis; and second, either interpretation accommodates -- indeed demands -- recognition of the sort of interest claimed by the appellant in this case.

B. Purposive Analysis

[344] The proper approach to the definition of the rights and freedoms guaranteed by the Charter is, as I have mentioned (supra, at para. 316), a purposive one. In R. v. Big M Drug Mart Ltd., supra, Dickson J. stated at p. 344: "The meaning of a right or freedom guaranteed by the Charter [is] to be ascertained by an analysis of the purpose of such a guarantee; it [is] to be understood, in other words, in the light of the interests it [is] meant to protect. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection. [Emphasis deleted.]"

An interpretation of s. 7 which reduces it to the right contained in the second clause -- the "deprivation" clause -- is seriously at odds with any purposive interpretation of the right to life guaranteed by the section. Indeed, if that interpretation were to be accepted, it would effectively denude the right to life of any purpose whatsoever, rendering it essentially vacuous.

[345] Professor Hogg, supra, implies as much when he argues that "so far as 'life' is concerned, the section has little work to do" (p. 44-6). This is only true, however, if we understand the s. 7 guarantee as it has been habitually understood. For in that case, the protection of the section would extend only to "deprivations" of life that were not in accordance with the principles of fundamental justice. And since "principles of fundamental justice" has so far been interpreted to invoke the basic tenets of the "legal system", narrowly defined to include only courts and tribunals that perform court-like functions, the purpose of guaranteeing the right to life would seem limited on this interpretation to guarding against capital punishment, which is the only obvious way in which the "legal system", so defined, could potentially trench on a person's right to life. But, as Professor Hogg points out, such a purpose might just as well be served by s. 12 of the Charter, which protects individuals against cruel and unusual punishment. In effect, then, on this interpretation the s. 7 guarantee of the right to life would be purposeless, and the right itself emptied of any meaningful content.

[346] One should not readily accept that the right to life in s. 7 means virtually nothing. To begin with, this result violates basic standards of interpretation by suggesting that the Charter speaks essentially in vain in respect of this fundamental right. More importantly, however, it threatens to undermine the coherence and purpose of the Charter as a whole. After all, the right to life is a prerequisite -- a sine qua non -- for the very possibility of enjoying all the other rights guaranteed by the Charter. To say this is not to set up a hierarchy of Charter rights. No doubt a meaningful right to life is reciprocally conditioned by these other rights: they guarantee that human life has dignity, worth and meaning. Nevertheless, the centrality of the right to life to the Charter as a whole is obvious. Indeed, it would be anomalous if, while guaranteeing a complex of rights and freedoms deemed to be necessary to human fulfilment within society, the Charter had nothing of significance to say about the one right that is indispensable for the enjoyment of all of these others.

[347] Thus, in my view, any interpretation of the Charter that leaves the right to life such a small role to play is one that threatens to impugn the coherence of the whole Charter. Far from being a poor relation of


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other Charter rights -- one which deserves protection merely as a negative right, while certain other Charter rights are granted recognition as full-blown positive rights -- the right to life is, in a very real sense, their essential progenitor. So much so that to deny any real significance to the Charter guarantee of the right to life would be to undercut the significance of every other Charter guarantee.

[348] A purposive interpretation of s. 7 as a whole requires that all the rights embodied in it be given meaning. But by leaving no meaningful role to be played by the right to life, the habitual 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, we must recognize 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. Whether one chooses to characterize matters by stating: (a) that it is not merely active "deprivations" of life, liberty and security of the person (as opposed to the mere withholdings) that s. 7 is concerned with; or (b) that s. 7 can be violated even absent a breach of the "principles of fundamental justice"; the basic point is that s. 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 -- with all of the intolerable conceptual difficulties attendant upon such an interpretation.

C. Contextual Analysis

[349] Quite apart from its specific relation to the right to life guaranteed in s. 7, the structure and purpose of the Charter also provide relevant context for the interpretation of Charter rights more generally. This idea was implicit in this Court's dicta regarding constitutional interpretation in Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 50: "Our Constitution has an internal architecture, or what the majority of this Court in OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at p. 57, called a "basic constitutional structure". The individual elements of the Constitution are linked to the others, and must be interpreted by reference to the structure of the Constitution as a whole."

What holds for "the Constitution as a whole" also holds for its constituent parts, including the Charter. Individual elements in the Charter are linked to one another, and must be understood by reference to the structure of the Charter as a whole. Support for this interpretive approach can be located in R. v. Big M Drug Mart Ltd., supra, at p. 344: "the purpose of [any] right or freedom ... is to be sought by reference to the character and the larger objects of the Charter itself".

[350] Clearly, positive rights are not at odds with the purpose of the Charter. Indeed, the Charter compels the state to act positively to ensure the protection of a significant number of rights, including, as I mentioned earlier (supra at para. 320), the protection of the right to vote (s. 3), the right to an interpreter in penal proceedings (s. 14), and the right of minority English- or French-speaking Canadians to have their children educated in their first language (s. 23). Positive rights are not an exception to the usual application of the Charter, but an inherent part of its structure. The Charter as a whole can be said to have a positive purpose in that at least some of its constituent parts do.

[351] Also instructive is s. 1. The great conceptual challenge faced by courts under s. 1 is to identify limitations to individual rights or freedoms that properly respect those rights or freedoms, without subverting them to majoritarian interests. Questions regarding the limits of individual rights can be characterized just as well in terms of delineating the scope of those rights. We can therefore expect to learn a great deal about rights definition in general, and in the context of this case specifically, by paying careful attention to the way in which this Court has handled such issues in the context of s. 1. Properly understood, the justificatory enterprise in s. 1 demonstrates that the rights-granting provisions in the Charter include a positive dimension.

[352] This Court developed early on a general approach to s. 1 justification, focussing on the kinds of considerations appropriate to the justificatory analysis. That general approach was expressed in Dickson C.J.'s landmark judgment in R. v. Oakes, [1986] 1 S.C.R. 103, at p. 135:


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"It is important to observe at the outset that s. 1 has two functions: first, it constitutionally guarantees the rights and freedoms set out in the provisions which follow; and, second, it states explicitly the exclusive justificatory criteria (outside of s. 33 of the Constitution Act, 1982) against which limitations on those rights and freedoms must be measured."

We sometimes lose sight of the primary function of s. 1 -- to constitutionally guarantee rights -- focussed as we are on the section's limiting function.

[353] Our oversight in this regard is perhaps exacerbated by the fact that the two functions served by s. 1 appear, at first blush, to conflict with one another. In what sense, after all, can one be said to be guaranteeing Charter rights, even as one places limits upon them? The answer lies in part in the other "limiting" sections (s. 33 and s. 38 of the Consitution Act, 1982): the justified limits to Charter rights that are permitted under s. 1 must not be confused with exceptions, denials, or other forms of restriction that would abrogate or derogate from the rights themselves … Dickson C.J. provides the remainder of the solution in the passage that follows, R. v. Oakes, supra, at p. 136:

"A second contextual element of interpretation of s. 1 is provided by the words "free and democratic society". Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the Court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The Court must be guided by the values and principles essential to a free and democratic society... The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified. [Emphasis added.]"

In this way, the two functions served by s. 1 are prevented from operating at cross purposes, as it were, because the very values that underlie and are the genesis of the rights and freedoms guaranteed by the Charter are the values that must be invoked in demonstrating that a limit on those rights and freedoms is justified. This "unity of values" underlying the dual functions of s. 1 ensures that due regard and protection is given to Charter rights even as justified limits are placed upon them ... In fact, it would not be far from the truth to state that the types of limits that are justified under s. 1 are those, and only those, that not only respect the content of Charter rights but also further those rights in some sense -- or to use the language of s. 1 itself, "guarantee" them -- by further advancing the values at which they are directed.

[354] To say this is in part to recognize that limitations on rights are necessary if only to harmonize competing rights, or to give the fullest expression possible to conflicting rights. Freedom of religion, for example, can only be fulfilled for all by guarding against establishment, thereby ensuring the existence of the positive conditions necessary for all to express their own religious views... Freedom of the press cannot trump the right to a fair trial …, which in turn cannot override privacy interests ... In every case, the courts will search for the proper accommodation that will give the fullest expression to each of the clashing rights. …

[355] In that sense, Charter rights and freedoms find protection in s. 1, not only because they are guaranteed in that section, but because limitations on some rights are required by the positive protection of others. This approach to s. 1 justification, 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 with liberty; they place a positive obligation on the state to arbitrate competing demands arising from the liberty and rights of others.

[356] In other words, the justificatory mechanism in place in s. 1 of the Charter reflects the existence of a positive right to Charter protection asserted in support of alleged interference by the state with the rights of others. If such positive rights exist in that form in s. 1, they must, a fortiori, exist in the various Charter provisions articulating the existence of the rights. For instance, 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


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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.

[357] This concludes my interpretive analysis of s. 7. In my view, the results are unequivocal: every suitable approach to Charter interpretation, including textual analysis, purposive analysis, and contextual analysis, mandates the conclusion that the s. 7 rights of life, liberty and security of the person include a positive dimension.

[358] It remains to show that 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. In one sense it seems obvious that it does. As I have already suggested, a minimum level of welfare is so closely connected to issues relating to one's basic health (or security of the person), and potentially even to one's survival (or life interest), that it appears inevitable that a positive right to life, liberty and security of the person must provide for it. Indeed in this case the legislature has in fact chosen to legislate in respect of welfare rights. Thus determining the applicability of the foregoing general principles to the case at bar requires only that we analyse this case through the lens of the underinclusiveness line of cases, of which Dunmore, supra, is the chief example.

III. Application to the Case at Bar

[359] As my colleague Bastarache J. observes, "the question of whether a fundamental freedom can be infringed through the lack of government action was canvassed most recently in the case of Dunmore" (para. 220). This Court recognized in that case that underinclusive legislation might in some contexts constitute "affirmative interference with the effective exercise of a protected freedom" (para. 22). In the process, we confirmed, at para. 23, L'Heureux-DubÈ J.'s earlier comment in Haig v. Canada, [1993] 2 S.C.R. 995, at p. 1039, that "a situation might arise in which, in order to make a fundamental freedom meaningful, a posture of restraint would not be enough, and positive governmental action might be required".

[360] The combined effect of these statements is at least two-fold. Most obviously, they stand for the proposition that the Charter's fundamental freedoms can be infringed even absent overt state action. Mere restraint on the part of government from actively interfering with protected freedoms is not always enough to ensure Charter compliance; sometimes government inaction can effectively constitute such interference.

[361] Beyond that, however, the statements also confirm that in some contexts the fundamental freedoms enumerated in the Charter place the state under a positive obligation to ensure that its legislation is properly inclusive. Indeed, as I have already stressed, positive rights distinguish themselves from negative rights precisely in that they are violable by mere inaction, such as the failure on the part of the state to include all those who should be included under a regime of protective legislation. Thus, in holding that the state cannot shield itself from Charter scrutiny under the pretext that underinclusive legislation does not constitute active interference with a fundamental freedom, Dunmore affirmed that the Charter provides for positive rights.

[362] Of course, such positive rights to inclusion in a legislative regime had previously been recognized by this Court in the s. 15(1) context in Vriend, supra. In that case, a unanimous Court observed that there is nothing in the wording of s. 32 "to suggest that a positive act encroaching on rights is required" (emphasis in original). Rather, s. 32 is "worded broadly enough to cover positive obligations on a legislature such that the Charter will be engaged even if the legislature refuses to exercise its authority" … The primary significance of Dunmore, from the perspective of the instant appeal, is that it extended the positive right to legislative inclusion to Charter claims going beyond the equality context.

[363] It would, in my view, be inaccurate to suggest in the light of this that claims of underinclusion are the natural province of s. 15. I think it is preferable to approach such claims by first attempting to ascertain the threat that is posed by a given piece of underinclusive legislation. Where the threat is to one of the


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specifically enumerated fundamental rights and freedoms guaranteed by the Charter, it will be appropriate to entertain the claim of underinclusion under the section that provides for that freedom. Admittedly, there will be cases in which underinclusion is based on a prohibited ground and threatens human dignity, and therefore is properly treated under s. 15(1), even though it does not implicate any of the other enumerated Charter rights. To that extent, s. 15(1) is perhaps the proper venue for addressing certain kinds of claims of underinclusion per se.

[364] But we must not conclude from this that claims based upon the underinclusiveness of legislation sit uneasily under the protection provided by other specifically enumerated Charter rights. As my colleague observes, total exclusion of a group from a statutory scheme protecting a certain right may in some circumstances engage that right to such an extent that the exclusion in essence infringes the substantive right as opposed to the equality right protected under s. 15(1).

[365] Dunmore articulated the criteria necessary for making a Charter claim based on underinclusion outside the context of s. 15. In my view, these criteria are satisfied in this case. They are as follows:

1. The claim must be grounded in a fundamental Charter right or freedom rather than in access to a particular statutory regime (Dunmore, at para. 24).

2. A proper evidentiary foundation must be provided, before creating a positive obligation under the Charter, by demonstrating that exclusion from the regime constitutes a substantial interference with the exercise and fulfillment of a protected right (Dunmore, at para. 25).

3. It must be determined whether the state can truly be held accountable for any inability to exercise the right or freedom in question (Dunmore, at para. 26).

These criteria are directed at ensuring that the necessary conditions for making out virtually any Charter claim are in place. To begin with, the claim must be grounded in an appropriate Charter right. That is, it must be grounded in a substantive right outside of s. 15, rather than in exclusion from a statutory regime itself, which exclusion could at best implicate the equality guarantee. Beyond this, however, all successful Charter claims require that the claimant establish both that his or her right has been interfered with and that it is the government that is responsible for such interference. The second and third criteria are directed at establishing the presence of these two conditions. While establishing their presence is often a relatively straightforward matter in cases where it is the infringement of a negative right that is claimed -- one must simply be able to point to a positive government action that infringes the right or freedom -- the case is somewhat different here. Because claims based upon underinclusion essentially call upon the courts to find a positive obligation on the part of government to actively secure fulfilment of a Charter right, it would be both extremely difficult (if not impossible) for claimants to point to some positive state act that constitutes an interference with their Charter rights, and inappropriate to expect this of them. Instead, their claim will essentially be grounded in a lack of effective state action. We must be sensitive to this difference in conducting our analysis of the criteria. With this in mind, I will now consider each of them in turn.

A. Is the Claim Grounded in an Appropriate Charter Right?

[366] In Dunmore, this Court distinguished underinclusion cases that are superficially similar such as Haig, supra, and Native Women's Assn. of Canada v. Canada, [1994] 3 S.C.R. 627 ("NWAC"), on the basis that the Charter claims made in the latter cases constituted nothing more than a demand for access to a particular statutory regime (para. 24):

"In Haig, the majority of this Court held that "(a) government is under no constitutional obligation to extend (a referendum) to anyone, let alone to everyone" (emphasis in original), and further that "(a) referendum as a platform of expression is ... a matter of legislative policy and not of constitutional law" (p. 1041). Similarly, in NWAC, the majority of this Court held that "it cannot be claimed that NWAC has a constitutional right to receive government funding aimed at promoting participation in the constitutional


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conferences" (p. 654). In my view, the appellants in this case do not claim a constitutional right to general inclusion in (a statutory regime), but simply a constitutional freedom to organize a trade association. This freedom to organize exists independently of any statutory enactment ...."

The instant appeal is also distinguishable from Haig and NWAC, and on all fours with Dunmore itself, in this respect.

[367] Though it is true that the claimants in the present case attack the underinclusiveness of the regulations under the Social Aid Act under s. 15 on the basis that exclusion from the statutory regime on a prohibited ground in itself constitutes an affront to human dignity, their s. 7 claim is entirely independent of this. Under s. 7, their claim is not that exclusion from the statutory regime is illicit per se, but that it violates their self-standing right to security of the person (and potentially their right to life as well). As in Dunmore, this right exists independently of any statutory enactment.

[368] The distinction between the s. 7 claim and the s. 15 claim can be illustrated as follows: if it were the case that the claimants could meet their basic needs through means outside of the Social Aid Act -- for instance through an independent government program providing for subsidized housing, food vouchers, etc., in exchange for the performance of works of public service -- their s. 7 claim would entirely disappear, but their s. 15 claim would potentially remain intact inasmuch as it would still be open to them to argue that being forced to resort to these alternative means somehow violated their human dignity. The problem in this case, by way of contrast, is that exclusion from this statutory regime effectively excludes the claimants from any real possibility of having their basic needs met through any means whatsoever. Thus, it is not exclusion from the particular statutory regime that is at stake but, more basically, the claimants' fundamental rights to security of the person and life itself.

B. Is there a Sufficient Evidentiary Basis to Establish that Exclusion from the Social Aid Act Substantially Interfered with the Fulfilment and Exercise of the Claimants' Fundamental Right to Security of the Person?

[369] In order to address adequately the question that is posed here, we must first be clear about what would be sufficient to constitute the required evidentiary basis. In Dunmore, supra, at para. 25, Bastarache J. stated the requirement as follows:

"The evidentiary burden in these cases is to demonstrate that exclusion from a statutory regime permits a substantial interference with the exercise of protected s. 2(d) activity. Such a burden was implied by Dickson C.J. in the Alberta Reference ... where he stated that positive obligations may be required "where the absence of government intervention may in effect substantially impede the enjoyment of fundamental freedoms" (p. 361). [Emphasis deleted.]"

For clarity, Bastarache J. went on to add that "these dicta do not require that the exercise of a fundamental freedom be impossible, but they do require that the claimant seek more than a particular channel for exercising his or her fundamental freedoms" (para. 25 (emphasis added)).

[370] In view of this, one must avoid placing undue emphasis on whatever (often remote) possibility there might have been that the claimants could have satisfied their basic needs through private means, whether in the open market or with the assistance of other private actors such as family members or charitable groups. There is simply no requirement that they prove they exhausted all other avenues of relief before turning to public assistance. On the contrary, all that is required is that the claimants show that the lack of government intervention "substantially impeded" the enjoyment of their s. 7 rights. This requirement is best put in language that mirrors that used by L'Heureux-DubÈ J. in Haig, supra, that the claimants must show that government intervention was necessary in order to render their s. 7 rights meaningful.

[371] There is ample evidence in this case that the legislated exclusion of young adults from the full benefits of the social assistance regime substantially interfered with their s. 7 rights, in particular their right to security of the person. Welfare recipients under the age of 30 were allowed $ 170/month. The


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various remedial programs put in place in 1984 simply did not work: a startling 88.8 percent of the young adults who were eligible to participate in the programs were unable to increase their benefits to the level payable to adults 30 and over. In these conditions, the physical and psychological security of young adults was severely compromised during the period at issue. This was compellingly illustrated by the appellant's own testimony and by that of her four witnesses: a social worker, a psychologist, a dietician and a community physician. The sizeable volume of the appellant's record prohibits an exhaustive exposÈ of the dismal conditions in which many young welfare recipients lived. I will nevertheless outline the evidence illustrating how the exclusion of young adults from the full benefits of the social assistance regime amounted to a substantial interference with their fundamental right to security of the person and drove them to resort to other demeaning and often dangerous means to ensure their survival.

[372] On $ 170/month, paying rent is impossible. Indeed, in 1987, the rent for a bachelor apartment in the Montreal Metropolitan Area was approximately $ 237 to $ 412/month, depending on the location. Two-bedroom apartments went for about $ 368 to $ 463/month. As a result, while some welfare recipients were able to live with parents, many became homeless. During the period at issue, it is estimated that over 5,000 young adults lived on the streets of the Montreal Metropolitan Area. Arthur Sandborn, a social worker, testified that young welfare recipients would often combine their funds and share a small apartment. After paying rent however, very little money was left to pay for the other basic necessities of life, including hot water, electricity and food. No telephone meant further marginalization and made job hunting very difficult, as did the inability to afford suitable clothes and transportation.

(1) Interference with Physical Security of the Person

[373] The exclusion of welfare recipients under the age of 30 from the full benefits of the social assistance regime severely interfered with their physical integrity and security. First, there are the health risks that flow directly from the dismal living conditions that $ 170/month afford. Obviously, the inability to pay for adequate clothing, electricity, hot water or, in the worst cases, for any shelter whatsoever, dramatically increases one's vulnerability to such ailments as the common cold or influenza. According to Dr. Christine Colin, persons living in poverty are six times more likely to develop diseases like bronchial infections, asthma and emphysema than persons who live in decent conditions. Dr. Colin also testified that the poor not only develop more health problems, but are also more severely affected by their ailments than those who live in more favourable conditions.

[374] Second, the malnourishment and undernourishment of young welfare recipients also result in a plethora of health problems. In 1987, the cost of proper nourishment for a single person was estimated at $ 152/month, that is 89 percent of the $ 170/month allowance. Jocelyne Leduc-Gauvin, a dietician, gave detailed evidence of the effects of poor and insufficient nourishment. Malnourished young adults suffer from lethargy and from various chronic problems such as obesity, anxiety, hypertension, infections, ulcers, fatigue and an increased sensitivity to pain. Malnourished women are prone to gynecological disorders, high rates of miscarriage and abnormal pregnancies. Children born to malnourished mothers tend to be smaller and are often afflicted by congenital deficiencies such as poor vision and learning disorders. Like many welfare recipients under the age of 30, the appellant suffered the consequences of malnutrition. As noted by Ms. Leduc-Gauvin, there is a sad irony in the fact that those who were left to fend for themselves on a lean $ 170/month -- young adults aged 18 to 29 -- in fact required a higher daily intake of calories and nutrients than older adults.

[375] In order to eat, many young welfare recipients benefited from food banks, soup kitchens and like charitable organizations. But since these could not be relied upon consistently other avenues had to be pursued. While some resorted to theft, others turned to prostitution. Dumpsters and garbage cans were scavenged in search of edible morsels of food, exposing the hungry youths to the risks of food poisoning and contamination. In one particular case reported by Mr. Sandborn, two young adults paid a restauranteur $ 10/month for the right to sit in his kitchen and eat whatever patrons left in their plates.

(2) Interference with Psychological Security of the Person


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[376] The psychological and social consequences of being excluded from the full benefits of the social assistance regime were equally devastating. The hardships and marginalization of poverty propel the individual into a spiral of isolation, depression, humiliation, low self-esteem, anxiety, stress and drug addiction. According to a 1987 enquiry by SantÈ QuÈbec, one out of five indigent young adults attempted suicide or had suicidal thoughts. The situation was even more alarming among homeless youths in Montreal, 50 percent of whom reportedly attempted to take their own lives.

[377] In my view, this evidence overwhelmingly demonstrates that the 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, at the margins, perhaps with their right to life as well. Freedom from state interference with bodily or psychological integrity is of little consolation to those who, like the claimants in this case, are faced with a daily struggle to meet their most basic bodily and psychological needs. To them, such a purely negative right to security of the person is essentially meaningless: theirs is a world in which the primary threats to security of the person come not from others, but from their own dire circumstances. 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.

C. Can the State Be Held Accountable for the Claimants' Inability to Exercise their Section 7 Rights?

[378] In one sense, there appears to be considerable overlap between this third criterion for making out a successful underinclusion claim and the second criterion just discussed. In fact, once one establishes in accordance with the second criterion that a claimant's fundamental rights cannot be effectively exercised without government intervention, it is difficult to see what more would be required in order to demonstrate state accountability.

[379] The absence of a direct, positive action by the state may appear to create particular problems of causation. Of course, state accountability in this context cannot be conceived of along the same lines of causal responsibility as where there is affirmative state action that causally contributes to, and in some cases even determines, the infringement. By contrast, positive rights are violable by mere inaction on the part of the state. This may mean that one should not search for the same kind of causal nexus tying the state to the claimants' inability to exercise their fundamental freedoms. Such a nexus could only ever be established by pointing to some positive state action giving rise to the claimants' aggrieved condition. While this focus on state action is appropriate where one is considering the violation of a negative right, it imports a requirement that is inimical to the very idea of positive rights.

[380] Among the immediate implications of this is that the claimants in this case need not establish, in order to satisfy the third criterion, 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. Here, as in all claims asserting the infringement of a positive right, the focus is on whether the state is under an obligation of performance to alleviate the claimants' condition, and not on whether it can be held causally responsible for that condition in the first place.

[381] All of which indicates that government accountability in the context of claims of underinclusion is to be understood simply in terms of the existence of a positive state obligation to redress conditions for which the state may or may not be causally responsible. On this view, the third criterion serves the purpose of ensuring not only that government intervention is needed to secure the effective exercise of a claimant's fundamental rights or freedoms, but also that it is obligatory. This accords with much of the dicta in Dunmore explaining how it is possible for government accountability to be established, not only by underinclusion that "orchestrates" or "encourages" the violation of fundamental freedoms, but also by underinclusion that "sustains" the violation (Dunmore, at para. 26). In conceiving of state accountability in terms of the breach of a positive duty of performance, it becomes possible for the first time to recognize how underinclusive legislation can violate a fundamental right by effectively turning a blind eye to, or sustaining, independently existing threats to that right.


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[382] A focus on state obligation was also the driving force behind this Court's finding in Dunmore that the government could be held accountable for the violation of the claimants' s. 2(d) rights in that case. It led to the search for a "minimum of state action" (para. 28) that would bring the government within reach of the Charter by engaging s. 32. Ultimately, the minimum of state action was satisfied in Dunmore by the mere fact that the government had chosen to legislate over matters of association. In this Court's view, that choice triggered a state obligation that invoked Charter scrutiny and removed any possibility of the state claiming lack of responsibility for the violation of associational rights (at para. 29):

"Once the state has chosen to regulate a private relationship such as that between employer and employee ... it is unduly formalistic to consign that relationship to a "private sphere" that is impervious to Charter review. As Dean P. W. Hogg has stated, "(t)he effect of the governmental action restriction is that there is a private realm in which people are not obliged to subscribe to 'state' values, and into which constitutional norms do not intrude. The boundaries of that realm are marked, not by an a priori definition of what is 'private', but by the absence of statutory or other governmental intervention" (see Constitutional Law of Canada (loose-leaf ed.), at p. 34-27)."

There can be no doubt that these dicta apply with equal force to the instant appeal.

[383] The Social Aid Act is quite clearly directed at addressing basic needs relating to the personal security and survival of indigent members of society. It is almost a clichÈ that the modern welfare state has developed in response to an obvious failure on the part of the free market economy to provide these basic needs for everyone. Were it necessary, this Court could take judicial notice of this fact in assessing the relevance of the Social Aid Act to the claimants' s. 7 rights. As it happens, any such necessity is mitigated by the fact that s. 6 of the Act explicitly sets out its objective: to provide supplemental aid to those who fall below a subsistence level.

[384] Additional support for the proposition that the Social Aid Act is directed at securing the interests that s. 7 of the Charter was meant to protect can be found in various statements made by the Quebec government in a policy paper that ultimately led to the reform of the social assistance regime in 1989, putting an end to the differential treatment between younger and older welfare recipients. This paper was published in 1987 by the government of Quebec, and signed by Pierre Paradis (the then Minister of Manpower and Income Security). It is entitled Pour une politique de sÈcuritÈ du revenu. In it, the Quebec government unequivocally states that it [TRANSLATION] "recognizes its duty and obligation to provide for the essential needs of persons who are unable to work." It then goes on to state that it must [TRANSLATION] "resolutely tackle the deficiencies" of the social assistance programs, which, it admits, "remain barriers to the autonomy and emancipation of welfare recipients." On the same page, the government specifically identifies the difference in treatment between younger and older welfare recipients as such a deficiency, describing it as a [TRANSLATION] "problem".

[385] At the very least, these statements indicate that the Social Aid Act constituted an excursion into regulating the field of interests that generally fall within the rubric of s. 7 of the Charter. 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 in order 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. The evidence shows that the underinclusion of welfare recipients aged 18 to 29 under the Social Aid Act substantially impeded their ability to exercise their right to personal security (and potentially even their right to life). In the circumstances, I must conclude that this effective lack of government intervention constituted a violation of their s. 7 rights.

IV. The Principles of Fundamental Justice


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[386] Under most circumstances, it would now be necessary to determine whether this prima facie violation of the appellant's s. 7 rights was "in accordance with the principles of fundamental justice". Such an enquiry appears to have no application to this case for two reasons. First, my analysis indicates that the protection of positive rights is most naturally grounded in the first clause of s. 7, which provides a free-standing right to life, liberty and security of the person and makes no mention of the principles of fundamental justice. Moreover, as Lamer J. observed in Re B.C. Motor Vehicle Act, supra, at p. 503 "the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system." But positive rights, by nature violable by mere inaction on the part of the state, do not bring the justice system into motion by empowering agents of the state to actively curtail the life, liberty and security of the person of individuals. The source of a positive rights violation is in the legislative process, which is of course itself quite distinct from the "inherent domain of the judiciary"and "the justice system" as it has been traditionally conceived. Indeed, the kinds of considerations that would serve to justify the decision to enact one form of protective legislation over another "lie in the realm of public policy", which this Court has specifically divorced from the principles of fundamental justice. The principles of fundamental justice therefore have little relevance in the present circumstances, which invoke the inherent domain of the legislature and not that of the justice system.

[387] In view of this, any limitation that might be placed on the s. 7 right asserted in this case -- if not in all cases where it is a positive right that is asserted -- must be found, not in the principles of fundamental justice, but in the reasonable limits prescribed by law that can be justified in a free and democratic society. Accordingly, it is to s. 1 that we must turn.

V. Section 1 of the Charter

[388] As is apparent from the above, there is an onerous burden placed on claimants who seek to establish a positive right violation under s. 7 of the Charter. Apart from the justiciability concern -- which, though not an issue in this case, may at times present a significant obstacle in the way of finding such a violation -- claimants are faced with the unenviable task of providing a sound evidentiary basis for the conclusion that their s. 7 rights are rendered essentially meaningless without active government intervention.

[389] The difficulty faced by claimants in this regard is partially justified by the fact that, once a violation of s. 7 has been established and there is a shift in the burden of showing that the violation is demonstrably justified as a reasonable limit prescribed by law, a similarly onerous task awaits the government. Lamer C.J.'s comments in G. (J.), supra, at para. 99, indicate why this must be so:

"Section 7 violations are not easily saved by s. 1....This is so for two reasons. First, the rights protected by s. 7 -- life, liberty, and security of the person -- are very significant and cannot ordinarily be overridden by competing social interests. Second, rarely will a violation of the principles of fundamental justice ... be upheld as a reasonable limit demonstrably justified in a free and democratic society."

Of course, only the first of these two rationales applies to the case at bar. Since there is no need to find that the violation of a positive right under s. 7 accords with the principles of fundamental justice, the second rationale does not come into play. To that extent, the violation of such a right may be somewhat easier to justify under s. 1. Still, the rights enshrined in s. 7, whether positive or negative, are of sufficient importance that they "cannot ordinarily be overridden by competing social interests".

[390] There are, in addition, more general constraints on s. 1 justification discussed above, such that a limitation on Charter rights under that section will only be justified where it furthers the values at which the rights are themselves directed. These constraints magnify the difficulty of the government's task in showing that the impugned violation is justified.

[391] In this case, the legislated differential treatment, or underinclusion, is purportedly directed at: (1) preventing the attraction of young adults to social assistance; and (2) facilitating their integration into the workforce by encouraging participation in the employment programs. Insofar as either of these "double


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objectives" is understood as being principally driven by cost considerations, it would fail (barring cases of prohibitive cost) to be pressing and substantial. However, it is possible to frame these objectives in such a way as to ensure that they are properly adapted to the justificatory analysis under s. 1 by focusing instead on their long-term tendency to promote the liberty and inherent dignity of young people. Thus framed, they might indeed satisfy the "pressing and substantial objective" requirement under Oakes.

[392] The problem, in my view, is that subsequent stages of the Oakes analysis raise doubts concerning the appropriateness of framing the objectives in this manner. For example, it is difficult to accept that denial of the basic means of subsistence is rationally connected to values of promoting the long-term liberty and inherent dignity of young adults. Indeed, the long-term importance of continuing education and integration into the workforce is undermined where those at whom such "help" is directed cannot meet their basic short-term subsistence requirements. Without the ability to secure the immediate needs of the present, the future is little more than a far-off possibility, remote both in perception and in reality. We have already seen, for example, how the inability to afford a telephone, suitable clothes and transportation makes job hunting difficult if not impossible. More drastically, inadequate food and shelter interfere with the capacity both for learning as well as for work itself. There appears, therefore, to be little rational connection between the objectives, as tentatively framed, and the means adopted in pursuit of those objectives.

[393] Moreover, I agree with Bastarache J.'s finding that those means were not minimally impairing in a number of ways: (1) not all of the programs provided participants with a full top-up to the basic level; (2) there were temporal gaps in the availability of the various programs to willing participants; (3) some of the most needy welfare recipients -- the illiterate and severely undereducated -- could not participate in certain programs; (4) only 30,000 program places were made available in spite of the fact that 85,000 single young adults were on social assistance at the time. As my colleague points out, this last factor in particular "brings into question the degree to which s. 29(a) was geared towards improving the [long-term] situation of those under 30, as opposed to simply saving money"(para. 283). Thus, at the minimal impairment stage of the Oakes test, there is additional cause for doubting whether the legislated distinction at issue can be properly characterized as being directed at furthering the long-term liberty and dignity of the claimants.

[394] This is sufficient, in my view, to establish that the government has not in this case discharged the always heavy burden of justifying a prima facie violation of s. 7 under s. 1. I note in passing that it will be a rare case indeed in which the government can successfully claim that the deleterious effects of denying welfare recipients their most basic requirements are proportional to the salutary effects of doing so in contemplation of long-term benefits, for reasons that are largely encompassed by my discussion of rational connection. This is not that rare case. For this reason among others, I find that the violation of the claimants' right to life, liberty and security of the person is not saved by s. 1.

VI. Section 15(1) of the Charter

[395] Having found a violation of s. 7 of the Charter, it is not strictly necessary for me to determine whether the impugned provisions also violate s. 15(1). I am, however, in general agreement with my colleague Bastarache J.'s analysis and conclusions on that issue. As he does, I would find that the impugned provision of the regulations under the Social Aid Act infringes s. 15 of the Charter and that the infringement is not saved by s. 1. The infringement cannot be saved by s. 1 for substantially the same reasons discussed above in relation to the s. 7 violation. (…)

ORDER: Appeal dismissed

B. Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004

[2004] 3 S.C.R. 657, 2004 SCC 78

THE CHIEF JUSTICE —


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I. Introduction

1 This case raises the issue of whether the Province of British Columbia’s refusal to fund a particular treatment for preschool-aged autistic children violates the right to equality under the Canadian Charter of Rights and Freedoms. The petitioners are autistic children and their parents. They argue that the government’s failure to fund applied behavioral therapy for autism unjustifiably discriminated against them. In the background lies the larger issue of when, if ever, a province’s public health plan under the Canada Health Act, R.S.C. 1985, c. C-6 (“CHA”), is required to provide a particular health treatment outside the “core” services administered by doctors and hospitals.

2 One sympathizes with the petitioners, and with the decisions below ordering the public health system to pay for their therapy. However, the issue before us is not what the public health system should provide, which is a matter for Parliament and the legislature. The issue is rather whether the British Columbia Government’s failure to fund these services under the health plan amounted to an unequal and discriminatory denial of benefits under that plan, contrary to s. 15 of the Charter. Despite their forceful argument, the petitioners fail to establish that the denial of benefits violated the Charter.

3 The government must provide the services authorized by law in a non-discriminatory manner. Here, however, discrimination has not been established. First, the claim for discrimination is based on the erroneous assumption that the CHA and the relevant British Columbia legislation provided the benefit claimed. Second, on the facts here and applying the appropriate comparator, it is not established that the government excluded autistic children on the basis of disability. For these reasons, the claim fails and the appeal is allowed.

II. History of the Case

4 The four infant petitioners suffer from autism, a neuro-behavioural syndrome caused by a dysfunction of the central nervous system that impairs social interaction, hinders communication and results in repetitive, stereotyped behaviour. The symptoms and effects of autism vary from mild to severe. Over 90 percent of untreated autistic children end up in group homes or other residential facilities.

5 The cause and cure of autism remain unknown. However, a 1987 study published by a Texas researcher, Dr. O. Ivar Lovaas, suggested that applied behavioural therapy based on the repetitive use of stimuli and emphasized cues might help some autistic children between ages three and six. The therapy is intensive and therefore expensive — between $45,000 and $60,000 per year. It is not always successful; the trial judge found only that in “some cases” it may produce “significant results” ((2000), 78 B.C.L.R. (3d) 55, 2000 BCSC 1142, at para. 51). While increasingly accepted, Applied Behavioural Analysis (“ABA”) or Intensive Behavioural Intervention (“IBI”) therapy is not uncontroversial. Objections range from its reliance in its early years on crude and arguably painful stimuli, to its goal of changing the child’s mind and personality. Indeed one of the interveners in this appeal, herself an autistic person, argues against the therapy.

6 The infant petitioners received Lovaas therapy. Their parents, the adult petitioners, funded the treatment, although Connor Auton’s mother ultimately became unable to continue for financial reasons. Until the government forbade it on the ground that new options were being evaluated, some families used funds for support services from the Ministry of Children and Families to help finance Lovaas therapy for their children with the tacit support of Ministry workers in some regions. Over a period of years, the petitioners and others lobbied the Ministers of Health, of Education, and of Children and Families for funding for Lovaas therapy, without success. In 1995, the petitioners commenced this action.

7 In the years leading up to the trial in 2000, the government funded a number of programs for autistic children and their families. This was done through the Ministry of Children and Families, which in 1997 had been given responsibility for child and youth mental health. The programs included infant development, supported child care, at-home respite, respite relief, contracted respite, occupational therapy, physical therapy, speech and language therapy, homemaker and home support services, hearing services,


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child care workers and specific behavioural support. Under the latter category, some programs attempted to positively treat autism. The Ministry provided services to autistic children through contracted agencies, some of which employed some behavioural analysis techniques. However, the focus was on teaching families the techniques to enable them to work themselves with the children.

8 An early intervention ABA/IBI program called LEAP had been established in Ladner but it was underfunded and equipped to serve only six children. Other centres and groups provided some ABA/IBI but the Crown’s expert, Dr. Glen Davies, testified that these programs were not intensive, not delivered early enough in the child’s development, and were rarely of sufficient duration to maximize the child’s development. Finally, in May 1999, the Ministry announced an Autism Action Plan and an Autism Action Implementation Plan, which acknowledged the importance of early intervention, diagnosis and assessment, but stated that services for autistic children had to be balanced with services to children with other special needs. Moreover, the plan did not specifically target ABA/IBI therapy. As of the date of trial a year or so later, the Ministry had not produced much. No new funding had been provided and a concrete plan for intensive early treatment remained to be developed.

9 In a nutshell, at the time of trial the government funded a number of programs for young autistic children, and appeared to be moving toward funding some form of early intervention therapy. However, it had not established funding for intensive, universal ABA/IBI therapy available to all autistic children between the ages of three and six.

10 This delay appears to have been due to a number of factors. The first was the 1997 decision to transfer child and youth mental health from the Ministry of Health to the Ministry of Children and Families, which put a non-medical slant on treatment. The second was financial constraint: in 1998, the deputy ministers of the ministries of Health, Education, and Children and Families informed families that the government was not “in a resource position” to fund ABA/IBI therapy.

11 A final factor may have been the emergent and somewhat controversial nature of ABA/IBI therapy, although by the time of the trial the evidence was sufficient to convince the trial judge that it was “medically necessary” (para. 102). At the time of trial in 2000, ABA/IBI funding for autistic children was only beginning to be recognized as desirable and was far from universal. Alberta established funding for it in 1999, as did Ontario. Prince Edward Island was providing up to 20 hours of ABA/IBI per week at the time of trial, and Newfoundland and Manitoba had instituted pilot projects in 1999. In the United States “several jurisdictions” included ABA/IBI in educational or Medicaid programs, and the New York State Department Guidelines and the 1999 U.S. Report of the Surgeon General on Mental Health recognized ABA/IBI as the treatment of choice (trial judgment, at para. 82).

12 The petitioners sought funding for Lovaas therapy, a particular type of ABA/IBI therapy, from all three ministries. However, the trial judge dealt only with the claim against the Ministry of Health because she considered the issue “to be primarily a health issue” (para. 88). …

III. Analysis

A. Did the Government’s Conduct Infringe the Petitioners’ Equality Rights Under Section 15 of the Charter?

19 Section 15(1) of the Charter provides: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

20 This case engages s. 15’s guarantee of “equal benefit of the law without discrimination ... based on ... mental ... disability”.

21 Different cases have formulated the requirements for a successful s. 15(1) claim in different ways. Nevertheless, there is “broad agreement on the general analytic framework”… In Andrews v. Law Society


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of British Columbia, [1989] 1 S.C.R. 143, at pp. 168 et seq. — this Court’s seminal statement on the interpretation of s. 15(1) —, the s. 15 analysis was described in two steps: first, whether there is unequal treatment under the law; and, second, whether the treatment is discriminatory. Similarly in Eldridge, supra, which also concerned a claim for medical services, La Forest J., at para. 58, put the test as follows:

A person claiming a violation of s. 15(1) must first establish that, because of a distinction drawn between the claimant and others, the claimant has been denied “equal protection” or “equal benefit” of the law. Secondly, the claimant must show that the denial constitutes discrimination on the basis of one of the enumerated grounds listed in s. 15(1) or one analogous thereto.

22 The dual requirements of Andrews, supra, and Eldridge, supra, were broken into three requirements in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at para. 88: (1) differential treatment under the law; (2) on the basis of an enumerated or analogous ground; (3) which constitutes discrimination.

23 There is no magic in a particular statement of the elements that must be established to prove a claim under s. 15(1). It is the words of the provision that must guide. Different cases will raise different issues. In this case, as will be discussed, an issue arises as to whether the benefit claimed is one provided by the law. The important thing is to ensure that all the requirements of s. 15(1), as they apply to the case at hand, are met.

24 A complicating factor is that however one states the requirements for s. 15(1), they inevitably overlap. For example, the nature of the benefit, the enumerated or analogous ground at issue, and the choice of a correct comparator play a role in all three steps: see Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357, 2004 SCC 65. Frameworks thus do not describe discreet linear steps; rather, they serve as a guide to ensure that the language and purpose of s. 15(1) are respected.

25 Whatever framework is used, an overly technical approach to s. 15(1) is to be avoided. In Andrews, supra, at pp. 168-69, McIntyre J. warned against adopting a narrow, formalistic analytical approach, and stressed the need to look at equality issues substantively and contextually. The Court must look at the reality of the situation and assess whether there has been discriminatory treatment having regard to the purpose of s. 15(1), which is to prevent the perpetuation of pre-existing disadvantage through unequal treatment.

26 In this case, the following issues arise from an application of the language of s. 15(1) to the facts:

(1) Is the claim for a benefit provided by law? If not, what relevant benefit is provided by law?

(2) Was the relevant benefit denied to the claimants while being granted to a comparator group alike in all ways relevant to benefit, except for the personal characteristic associated with an enumerated or analogous ground?

(3) If the claimants succeed on the first two issues, is discrimination established by showing that the distinction denied their equal human worth and human dignity?

(1) Is the Claim for a Benefit Provided by Law?

27 In order to succeed, the claimants must show unequal treatment under the law — more specifically that they failed to receive a benefit that the law provided, or was saddled with a burden the law did not impose on someone else. The primary and oft-stated goal of s. 15(1) is to combat discrimination and ameliorate the position of disadvantaged groups within society. Its specific promise, however, is confined to benefits and burdens “of the law”. Combatting discrimination and ameliorating the position of members of disadvantaged groups is a formidable task and demands a multi-pronged response. Section 15(1) is part of that response. Section 15(2)’s exemption for affirmative action programs is another prong of the response. Beyond these lie a host of initiatives that governments, organizations and individuals can undertake to ameliorate the position of members of disadvantaged groups.


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28 The specific role of s. 15(1) in achieving this objective is to ensure that when governments choose to enact benefits or burdens, they do so on a non-discriminatory basis. This confines s. 15(1) claims to benefits and burdens imposed by law. As stated in R. v. Turpin, [1989] 1 S.C.R. 1296, at p. 1329:

The guarantee of equality before the law is designed to advance the value that all persons be subject to the equal demands and burdens of the law and not suffer any greater disability in the substance and application of the law than others. [Emphasis added.]

29 Most s. 15(1) claims relate to a clear statutory benefit or burden. Consequently, the need for the benefit claimed or burden imposed to emanate from law has not been much discussed. Nevertheless, the language of s. 15(1) as well as the jurisprudence demand that it be met before a s. 15(1) claim can succeed.

30 In this case, the issue of whether the benefit claimed is one conferred by law does arise, and must be carefully considered. The claim, as discussed, is for funding for a “medically necessary” treatment. The unequal treatment is said to lie in funding medically required treatments for non-disabled Canadian children or adults with mental illness, while refusing to fund medically required ABA/IBI therapy to autistic children. The decisions under appeal proceeded on this basis. The trial judge, affirmed by the Court of Appeal, ruled that the discrimination lay in denying a “medically necessary” service to a disadvantaged group while providing “medically necessary” services for others. Thus the benefit claimed, in essence, is funding for all medically required treatment.

31 This raises the question of whether the legislative scheme in fact provides anyone with all medically required treatment. An examination of the scheme shows that it does not: see Appendix A (Relevant Legislative and Regulatory Provisions) and Appendix B (Interaction of the Relevant Legislative and Regulatory Provisions).

32 The scheme designates two distinct categories of funded treatment based on service. First, the scheme provides complete funding for services delivered by medical practitioners, referred to as “core” services. This is required by the CHA. Many medically necessary or required services, including ABA/IBI therapy for autistic children, fall outside this core.

33 Secondly, the CHA permits the provinces at their discretion to fund non-core medical services — services that are not delivered by physicians. British Columbia does this by naming classes of “health care practitioners” whose services may be partially funded. It then falls to the Medical Services Commission, an administrative body, to designate particular practitioners and procedures within these categories for funding.

34 It was suggested that the reference by the Medicare Protection Act, R.S.B.C. 1996, c. 286 (“MPA”), to “medically required” services is an indication that all medically required or necessary non-core services must be funded. However, the Act does not say this. Section 1 uses the phrase “medically required services” in conjunction with the services of doctors or “medical practitioners” or an “approved diagnostic facility” (s. 1 “benefits”, paras. (a) and (c)). Only these services are funded on the basis of being “medically required”. “Medically required” in the MPA does not touch the services of “health care practitioners” which are funded only if the Province chooses to place a class of health care practitioner on an “enrolled” list by legislation or regulation: MPA, s. 1 “benefits”, para. (b).

35 In summary, the legislative scheme does not promise that any Canadian will receive funding for all medically required treatment. All that is conferred is core funding for services provided by medical practitioners, with funding for non-core services left to the Province’s discretion. Thus, the benefit here claimed — funding for all medically required services — was not provided for by the law.

36 More specifically, the law did not provide funding for ABA/IBI therapy for autistic children. The British Columbia MPA authorized partial funding for the services of the following health care practitioners: chiropractors, dentists, optometrists, podiatrists, physical therapists, massage therapists and naturopathic doctors. In addition, provincial regulations authorized funding for the services of physical


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therapists, massage therapists and nurses. At the time of trial, the Province had not named providers of ABA/IBI therapy as “health care practitioners”, whose services could be funded under the plan.

37 It followed that the Medical Services Commission, charged with administration of the MPA, had no power to order funding for ABA/IBI therapy. The Commission, as an administrative body, had no authority to enlarge the class of “health care practitioners”. That could be done only by the government. Since the government had not designated ABA/IBI therapists as “health care practitioners”, the Commission was not permitted to list their services for funding. This is how things stood at the time of trial. British Columbia’s law governing non-core benefits did not provide the benefit that the petitioners were seeking.

38 The petitioners rely on Eldridge in arguing for equal provision of medical benefits. In Eldridge, this Court held that the Province was obliged to provide translators to the deaf so that they could have equal access to core benefits accorded to everyone under the British Columbia medicare scheme. The decision proceeded on the basis that the law provided the benefits at issue — physician-delivered consultation and maternity care. However, by failing to provide translation services for the deaf, the Province effectively denied to one group of disabled people the benefit it had granted by law. Eldridge was concerned with unequal access to a benefit that the law conferred and with applying a benefit-granting law in a non-discriminatory fashion. By contrast, this case is concerned with access to a benefit that the law has not conferred. For this reason, Eldridge does not assist the petitioners.

39 However, this does not end the inquiry. Courts should look to the reality of the situation to see whether the claimants have been denied benefits of the legislative scheme other than those they have raised. This brings up the broader issue of whether the legislative scheme is discriminatory, since it provides non-core services to some groups while denying funding for ABA/IBI therapy to autistic children. The allegation is that the scheme is itself discriminatory, by funding some non-core therapies while denying equally necessary ABA/IBI therapy.

40 This argument moves beyond the legislative definition of “benefit”. As pointed out in Hodge, supra, at para. 25: ... the legislative definition, being the subject matter of the equality rights challenge, is not the last word. Otherwise, a survivor’s pension restricted to white protestant males could be defended on the ground that all surviving white protestant males were being treated equally.

We must look behind the words and ask whether the statutory definition is itself a means of perpetrating inequality rather than alleviating it. Section 15(1) requires not merely formal equality, but substantive equality: Andrews, supra, at p. 166.

41 It is not open to Parliament or a legislature to enact a law whose policy objectives and provisions single out a disadvantaged group for inferior treatment: Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203. On the other hand, a legislative choice not to accord a particular benefit absent demonstration of discriminatory purpose, policy or effect does not offend this principle and does not give rise to s. 15(1) review. This Court has repeatedly held that the legislature is under no obligation to create a particular benefit. It is free to target the social programs it wishes to fund as a matter of public policy, provided the benefit itself is not conferred in a discriminatory manner...

42 A statutory scheme may discriminate either directly, by adopting a discriminatory policy or purpose, or indirectly, by effect. Direct discrimination on the face of a statute or in its policy is readily identifiable and poses little difficulty. Discrimination by effect is more difficult to identify. Where stereotyping of persons belonging to a group is at issue, assessing whether a statutory definition that excludes a group is discriminatory, as opposed to being the legitimate exercise of legislative power in defining a benefit, involves consideration of the purpose of the legislative scheme which confers the benefit and the overall needs it seeks to meet. If a benefit program excludes a particular group in a way that undercuts the overall purpose of the program, then it is likely to be discriminatory: it amounts to an arbitrary exclusion of a particular group. If, on the other hand, the exclusion is consistent with the overarching purpose and


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scheme of the legislation, it is unlikely to be discriminatory. Thus, the question is whether the excluded benefit is one that falls within the general scheme of benefits and needs which the legislative scheme is intended to address.

43 The legislative scheme in the case at bar, namely the CHA and the MPA, does not have as its purpose the meeting of all medical needs. As discussed, its only promise is to provide full funding for core services, defined as physician-delivered services. Beyond this, the provinces may, within their discretion, offer specified non-core services. It is, by its very terms, a partial health plan. It follows that exclusion of particular non-core services cannot, without more, be viewed as an adverse distinction based on an enumerated ground. Rather, it is an anticipated feature of the legislative scheme. It follows that one cannot infer from the fact of exclusion of ABA/IBI therapy for autistic children from non-core benefits that this amounts to discrimination. There is no discrimination by effect.

44 The correctness of this conclusion may be tested by considering the consequences to the legislative scheme of obliging provinces to provide non-core medical services required by disabled persons and people associated with other enumerated and analogous grounds, like gender and age. Subject to a finding of no discrimination at the third step, a class of people legally entitled to non-core benefits would be created. This would effectively amend the medicare scheme and extend benefits beyond what it envisions — core physician-provided benefits plus non-core benefits at the discretion of the Province.

45 Had the situation been different, the petitioners might have attempted to frame their legal action as a claim to the benefit of equal application of the law by the Medical Services Commission. This would not have been a substantive claim for funding for particular medical services, but a procedural claim anchored in the assertion that benefits provided by the law were not distributed in an equal fashion. Such a claim, if made out, would be supported by Eldridge, supra. The argument would be that the Medical Services Commission violated s. 15(1) by approving non-core services for non-disabled people, while denying equivalent services to autistic children and their families.

46 Such a claim depends on a prior showing that there is a benefit provided by law. There can be no administrative duty to distribute non-existent benefits equally. Had the legislature designated ABA/IBI therapists (or a broader group of therapists which included them) as “health care practitioners” under the MPA at the time of trial, this would have amounted to a legislated benefit, which the Commission would be charged with implementing. The Commission would then have been obliged to implement that benefit in a non-discriminatory fashion. However, this is not the case. Here, the legislature had not legislated funding for the benefit in question, and the Commission had no power to deal with it.

47 I conclude that the benefit claimed, no matter how it is viewed, is not a benefit provided by law. This is sufficient to end the inquiry. However, since this is the first case of this type to reach this Court, it is appropriate to consider whether the petitioners would have succeeded had they established that ABA/IBI therapy was a benefit provided by law, by being designated as a non-core benefit.

(2) Denial of a Benefit Granted to a Comparator Group, on an Enumerated or Analogous Ground

48 This question first requires us to determine the appropriate comparator group, and then to ask whether, as compared with people in that group, the petitioners have been denied a benefit.

49 The first task is to determine the appropriate comparator group. The petitioners suggested that they should be compared with non-disabled children and their parents, as well as adult persons with mental illness. A closer look reveals problems with both suggested comparators.

50 The law pertaining to the choice of comparators is extensively discussed in Hodge, supra, and need not be repeated here. That discussion establishes the following propositions.

51 First, the choice of the correct comparator is crucial, since the comparison between the claimants and this group permeates every stage of the analysis. “[M]isidentification of the proper comparator group at the outset can doom the outcome of the whole s. 15(1) analysis”: Hodge, supra, at para. 18.


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52 Second, while the starting point is the comparator chosen by the claimants, the Court must ensure that the comparator is appropriate and should substitute an appropriate comparator if the one chosen by the claimants is not appropriate: Hodge, supra, at para. 20.

53 Third, the comparator group should mirror the characteristics of the claimant or claimant group relevant to the benefit or advantage sought, except for the personal characteristic related to the enumerated or analogous ground raised as the basis for the discrimination: Hodge, supra, at para. 23. The comparator must align with both the benefit and the “universe of people potentially entitled” to it and the alleged ground of discrimination: Hodge, at paras. 25 and 31.

54 Fourth, a claimant relying on a personal characteristic related to the enumerated ground of disability may invite comparison with the treatment of those suffering a different type of disability, or a disability of greater severity: Hodge, supra, at paras. 28 and 32. Examples of the former include the differential treatment of those suffering mental disability from those suffering physical disability in Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566, and the differential treatment of those suffering chronic pain from those suffering other workplace injuries in Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54. An example of the latter is the treatment of persons with temporary disabilities compared with those suffering permanent disabilities in Granovsky, supra.

55 Applying these criteria, I conclude that the appropriate comparator for the petitioners is a non-disabled person or a person suffering a disability other than a mental disability (here autism) seeking or receiving funding for a non-core therapy important for his or her present and future health, which is emergent and only recently becoming recognized as medically required. It will be recalled that in many jurisdictions ABA/IBI therapy remained unfunded at the time of trial. Indeed, it was only in the year preceding the trial that two Canadian provinces had authorized funding for ABA/IBI therapy to autistic children. The comparators, as noted, must be like the claimants in all ways save for characteristics relating to the alleged ground of discrimination. People receiving well-established non-core therapies are not in the same position as people claiming relatively new non-core benefits. Funding may be legitimately denied or delayed because of uncertainty about a program and administrative difficulties related to its recognition and implementation. This has nothing to do with the alleged ground of discrimination. It follows that comparison with those receiving established therapies is inapt.

56 The petitioners’ comparators were deficient in that they focussed on the non-existent medical benefit of medically required care, as discussed above. However, even if I were to assume that the benefit is one provided by law — more particularly, that the B.C. legislation had listed ABA/IBI therapists as “health care practitioners” whose services could be considered funded benefits — the petitioners’ comparators would still be deficient, because they have left the recent and emergent nature of ABA/IBI therapy out of the equation. This error was replicated in the decisions below.

57 The remaining question is whether, applying the appropriate comparator, the claimant or claimant group was denied a benefit made available to the comparator group. Differential treatment having regard to the appropriate comparator may be established either by showing an explicit distinction (direct discrimination) or by showing that the effect of the government action amounted to singling the claimant out for less advantageous treatment on the basis of the alleged ground of discrimination (indirect discrimination). In indirect discrimination, the terms on which the claimants are denied the benefit operate as a proxy for their group status. For example, in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, facially neutral physical requirements for firefighters were set at aerobic levels not generally attainable by female firefighters — levels, moreover, which were not required for performance of the job. The specified aerobic levels made no mention of gender. On their face, they did not discriminate. Yet, in effect, they excluded women, not on the basis of ability to do the job, but on the basis of gender. The aerobic levels served as a proxy for gender. Hence, they were held to discriminate on the basis of gender.


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58 As discussed, the appropriate comparator in this case is a member of a non-disabled group or a person suffering a disability other than a mental disability that requests or receives funding for non-core therapy important to present and future health, but which is emergent and only recently becoming recognized as medically required. On the evidence adduced here, differential treatment either directly or by effect is not established. There was no evidence of how the Province had responded to requests for new therapies or treatments by non-disabled or otherwise disabled people. We know that it was slow in responding to the demands for ABA/IBI funding for autistic children. But we do not know whether it acted in a similar manner with respect to other new therapies.

59 Indeed, the conduct of the government considered in the context of the emergent nature of ABA/IBI therapy for autistic children raises doubts about whether there was a real denial or differential treatment of autistic children. The government put in place a number of programs, albeit not intensive ABA/IBI therapy, directed to helping autistic children and their families. In the year before the trial, the government had announced an Autism Action Plan and an Autism Action Implementation Plan which acknowledged the importance of early intervention, diagnosis and assessment. The government’s failing was to delay putting in place what was emerging in the late-1990s as the most, indeed the only known, effective therapy for autism, while continuing to fund increasingly discredited treatments.

60 As discussed earlier, the delay in providing funding for ABA/IBI therapy seems to have been related to three factors. The first was the inauspicious decision to transfer child and youth mental health from the Ministry of Health to the Ministry of Children and Families, which meant that the decision makers lacked medical and psychiatric expertise and viewed autism from a social rather than medical perspective. The second was financial concerns and competing claims on insufficient resources. The third was the emergent nature of the recognition that ABA/IBI therapy was appropriate and medically required.

61 With hindsight, it is possible to say that the government should have moved more quickly. But on the evidence before us, it is difficult to say that the government in purpose or effect put autistic children and their families “on the back burner” when compared to non-disabled or otherwise disabled groups seeking emergent therapies. Rather, to use the trial judge’s phrase, the government’s failing was that its actions to that point did not meet the “gold standard of scientific methodology” ...

62 The issue, however, is not whether the government met the gold standard of scientific methodology, but whether it denied autistic people benefits it accorded to others in the same situation, save for mental disability. There is no evidence suggesting that the government’s approach to ABA/IBI therapy was different than its approach to other comparable, novel therapies for non-disabled persons or persons with a different type of disability. In the absence of such evidence, a finding of discrimination cannot be sustained.

(3) Discrimination

63 If differential denial of a benefit provided by law on a ground enumerated in s. 15(1) or analogous thereto were established, it would still be necessary to examine whether the distinction was discriminatory in the sense of treating autistic children as second-class citizens and denying their fundamental human dignity. The failure to establish the basis for a claim for discrimination deprives us of the necessary foundation for this final inquiry. …

IV. Conclusion

69 I would answer the constitutional questions as follows:

1. Do the definitions of “benefits” and “health care practitioner” in s. 1 of the Medicare Protection Act, R.S.B.C. 1996, c. 286, and ss. 17-29 of the Medical and Health Care Services Regulation, B.C. Reg. 426/97, infringe s. 15(1) of the Canadian Charter of Rights and Freedoms by failing to include services for autistic children based on applied behavioural analysis?

No.


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C. Chaoulli v. Quebec (Attorney General), 2005

2005 SCC 35.

Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.

1 DESCHAMPS J. — Quebeckers are prohibited from taking out insurance to obtain in the private sector services that are available under Quebec’s public health care plan. Is this prohibition justified by the need to preserve the integrity of the plan?

2 As we enter the 21st century, health care is a constant concern. The public health care system, once a source of national pride, has become the subject of frequent and sometimes bitter criticism. This appeal does not question the appropriateness of the state making health care available to all Quebeckers. On the contrary, all the parties stated that they support this kind of role for the government. Only the state can make available to all Quebeckers the social safety net consisting of universal and accessible health care. The demand for health care is constantly increasing, and one of the tools used by governments to control this increase has been the management of waiting lists. The choice of waiting lists as a management tool falls within the authority of the state and not of the courts. The appellants do not claim to have a solution that will eliminate waiting lists. Rather, they submit that the delays resulting from waiting lists violate their rights under the Charter of Human Rights and Freedoms, and the Canadian Charter of Rights and Freedoms. They contest the validity of the prohibition in Quebec, as provided for in s. 15 of the Health Insurance Act, HEIA and s. 11 of the Hospital Insurance Act HOIA, on private insurance for health care services that are available in the public system. The appellants contend that the prohibition deprives them of access to health care services that do not come with the wait they face in the public system.

3 The two sections in issue read as follows:

15. No person shall make or renew a contract of insurance or make a payment under a contract of insurance under which an insured service is furnished or under which all or part of the cost of such a service is paid to a resident or a deemed resident of Québec or to another person on his behalf.

11. (1) No one shall make or renew, or make a payment under a contract under which (a) a resident is to be provided with or to be reimbursed for the cost of any hospital service that is one of the insured services; (b) payment is conditional upon the hospitalization of a resident; or (c) payment is dependent upon the length of time the resident is a patient in a facility maintained by an institution contemplated in section 2.

4 In essence, the question is whether Quebeckers who are prepared to spend money to get access to health care that is, in practice, not accessible in the public sector because of waiting lists may be validly prevented from doing so by the state. For the reasons that follow, I find that the prohibition infringes the right to personal inviolability and that it is not justified by a proper regard for democratic values, public order and the general well-being of the citizens of Quebec.

5 The validity of the prohibition is contested by the appellants, George Zeliotis and Jacques Chaoulli. Over the years, Mr. Zeliotis has experienced a number of health problems and has used medical services that were available in the public system, including heart surgery and a number of operations on his hip. The difficulties he encountered prompted him to speak out against waiting times in the public health care system. Mr. Chaoulli is a physician who has tried unsuccessfully to have his home-delivered medical activities recognized and to obtain a licence to operate an independent private hospital. Mr. Zeliotis and Mr. Chaoulli joined forces to apply to the court by way of motion for a declaration that s. 15 HEIA and s. 11 HOIA are unconstitutional and invalid. Mr. Chaoulli argues, first, that the prohibition is within the federal government’s legislative jurisdiction in relation to criminal law and, second, that the prohibition violates the rights to life and to personal security, inviolability and freedom protected by s. 1 of the Quebec Charter and ss. 7, 12 and 15 of the Canadian Charter. … Because I conclude that the Quebec


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Charter has been violated, it will not be necessary for me to consider the arguments based on the Canadian Charter. …

102 THE CHIEF JUSTICE AND MAJOR J. — We concur in the conclusion of our colleague Deschamps J. that the prohibition against contracting for private health insurance violates s. 1 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12, and is not justifiable under s. 9.1. On the argument that the anti-insurance provision also violates s. 7 of the Canadian Charter of Rights and Freedoms (“Charter”), we conclude that the provision impermissibly limits the right to life, liberty and security of the person protected by s. 7 of the Charter and has not been shown to be justified as a reasonable limit under s. 1 of the Charter.

103 The appellants do not seek an order that the government spend more money on health care, nor do they seek an order that waiting times for treatment under the public health care scheme be reduced. They only seek a ruling that because delays in the public system place their health and security at risk, they should be allowed to take out insurance to permit them to access private services.

104 The Charter does not confer a freestanding constitutional right to health care. However, where the government puts in place a scheme to provide health care, that scheme must comply with the Charter. We are of the view that the prohibition on medical insurance in s. 15 of the Health Insurance Act, R.S.Q., c. A-29, and s. 11 of the Hospital Insurance Act, R.S.Q., c. A-28 (see Appendix), violates s. 7 of the Charter because it impinges on the right to life, liberty and security of the person in an arbitrary fashion that fails to conform to the principles of fundamental justice.

105 The primary objective of the Canada Health Act, R.S.C. 1985, c. C-6, is “to protect, promote and restore the physical and mental well-being of residents of Canada and to facilitate reasonable access to health services without financial or other barriers” (s. 3). By imposing exclusivity and then failing to provide public health care of a reasonable standard within a reasonable time, the government creates circumstances that trigger the application of s. 7 of the Charter.

106 The Canada Health Act, the Health Insurance Act, and the Hospital Insurance Act do not expressly prohibit private health services. However, they limit access to private health services by removing the ability to contract for private health care insurance to cover the same services covered by public insurance. The result is a virtual monopoly for the public health scheme. The state has effectively limited access to private health care except for the very rich, who can afford private care without need of insurance. This virtual monopoly, on the evidence, results in delays in treatment that adversely affect the citizen’s security of the person. Where a law adversely affects life, liberty or security of the person, it must conform to the principles of fundamental justice. This law, in our view, fails to do so.

107 While the decision about the type of health care system Quebec should adopt falls to the Legislature of that province, the resulting legislation, like all laws, is subject to constitutional limits, including those imposed by s. 7 of the Charter. The fact that the matter is complex, contentious or laden with social values does not mean that the courts can abdicate the responsibility vested in them by our Constitution to review legislation for Charter compliance when citizens challenge it. As this Court has said on a number of occasions, “it is the high duty of this Court to insure that the Legislatures do not transgress the limits of their constitutional mandate and engage in the illegal exercise of power”...

108 The government defends the prohibition on medical insurance on the ground that the existing system is the only approach to adequate universal health care for all Canadians. The question in this case, however, is not whether single-tier health care is preferable to two-tier health care. Even if one accepts the government’s goal, the legal question raised by the appellants must be addressed: is it a violation of s. 7 of the Charter to prohibit private insurance for health care, when the result is to subject Canadians to long delays with resultant risk of physical and psychological harm? The mere fact that this question may have policy ramifications does not permit us to avoid answering it.

I. Section 7 of the Charter


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109 Section 7 of the Charter guarantees that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The disposition of this appeal therefore requires us to consider (1) whether the impugned provisions deprive individuals of their life, liberty or security of the person; and (2) if so, whether this deprivation is in accordance with the principles of fundamental justice...

A. Deprivation of Life, Liberty or Security of the Person

110 The issue at this stage is whether the prohibition on insurance for private medical care deprives individuals of their life, liberty or security of the person protected by s. 7 of the Charter.

111 The appellants have established that many Quebec residents face delays in treatment that adversely affect their security of the person and that they would not sustain but for the prohibition on medical insurance. It is common ground that the effect of the prohibition on insurance is to allow only the very rich, who do not need insurance, to secure private health care in order to avoid the delays in the public system. Given the ban on insurance, most Quebeckers have no choice but to accept delays in the medical system and their adverse physical and psychological consequences.

112 Delays in the public system are widespread and have serious, sometimes grave, consequences. There was no dispute that there is a waiting list for cardiovascular surgery for life-threatening problems. Dr. Daniel Doyle, a cardiovascular surgeon who teaches and practises in Quebec City, testified that a person with coronary disease is [TRANSLATION] “sitting on a bomb” and can die at any moment. He confirmed, without challenge, that patients die while on waiting lists: A.R., at p. 461. Inevitably, where patients have life-threatening conditions, some will die because of undue delay in awaiting surgery.

113 The same applies to other health problems. In a study of 200 subjects aged 65 and older with hip fractures, the relationship between pre-operative delay and post-operative complications and risk of death was examined. While the study found no relationship between pre-operative delay and post-operative complications, it concluded that the risk of death within six months after surgery increased significantly, by 5 percent, with the length of pre-operative delay...

114 Dr. Eric Lenczner, an orthopaedic surgeon, testified that the one-year delay commonly incurred by patients requiring ligament reconstruction surgery increases the risk that their injuries will become irreparable (A.R., at p. 334). Dr. Lenczner also testified that 95 percent of patients in Canada wait well over a year, and many two years, for knee replacements. While a knee replacement may seem trivial compared to the risk of death for wait-listed coronary surgery patients, which increases by 0.5 percent per month (A.R., at p. 450), the harm suffered by patients awaiting replacement knees and hips is significant. Even though death may not be an issue for them, these patients “are in pain”, “would not go a day without discomfort” and are “limited in their ability to get around”, some being confined to wheelchairs or house bound (A.R., at pp. 327-28).

115 Both the individual members of the Standing Senate Committee on Social Affairs, Science and Technology who intervened in this appeal and the Canadian Medical Association cited a Statistics Canada study demonstrating that over one in five Canadians who needed health care for themselves or a family member in 2001 encountered some form of difficulty, from getting an appointment to experiencing lengthy waiting times… Thirty-seven percent of those patients reported pain.

116 In addition to threatening the life and the physical security of the person, waiting for critical care may have significant adverse psychological effects. Serious psychological effects may engage s. 7 protection for security of the person. These “need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety”: New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 60.

117 Studies confirm that patients with serious illnesses often experience significant anxiety and depression while on waiting lists. A 2001 study concluded that roughly 18 percent of the estimated five million


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people who visited specialists for a new illness or condition reported that waiting for care adversely affected their lives. The majority suffered worry, anxiety or stress as a result. This adverse psychological impact can have a serious and profound effect on a person’s psychological integrity, and is a violation of security of the person (Access to Health Care Services in Canada, 2001, at p. 20).

118 The jurisprudence of this Court holds that delays in obtaining medical treatment which affect patients physically and psychologically trigger the protection of s. 7 of the Charter. In R. v. Morgentaler, [1988] 1 S.C.R. 30, Dickson C.J. concluded that the delay in obtaining therapeutic abortions, which increased the risk of complications and mortality due to mandatory procedures imposed by the state, was sufficient to trigger the physical aspect of the woman’s right to security of the person: Morgentaler, at p. 59. He found that the psychological impact on women awaiting abortions constituted an infringement of security of the person. Beetz J. agreed with Dickson C.J. that “[t]he delays mean therefore that the state has intervened in such a manner as to create an additional risk to health, and consequently this intervention constitutes a violation of the woman’s security of the person”...

119 In this appeal, delays in treatment giving rise to psychological and physical suffering engage the s. 7 protection of security of the person just as they did in Morgentaler. In Morgentaler, as in this case, the problem arises from a legislative scheme that offers health services. In Morgentaler, as in this case, the legislative scheme denies people the right to access alternative health care. (That the sanction in Morgentaler was criminal prosecution while the sanction here is administrative prohibition and penalties is irrelevant. The important point is that in both cases, care outside the legislatively provided system is effectively prohibited.) In Morgentaler the result of the monopolistic scheme was delay in treatment with attendant physical risk and psychological suffering. In Morgentaler, as here, people in urgent need of care face the same prospect: unless they fall within the wealthy few who can pay for private care, typically outside the country, they have no choice but to accept the delays imposed by the legislative scheme and the adverse physical and psychological consequences this entails. As in Morgentaler, the result is interference with security of the person under s. 7 of the Charter.

120 In Morgentaler, Dickson C.J. and Wilson J. found a deprivation of security of the person because the legislative scheme resulted in the loss of control by a woman over the termination of her pregnancy: see Morgentaler, at pp. 56 and 173.

121 The issue in Morgentaler was whether a system for obtaining approval for abortions (as an exception to a prohibition) that in practice imposed significant delays in obtaining medical treatment unjustifiably violated s. 7 of the Charter. Parliament had established a mandatory system for obtaining medical care in the termination of pregnancy. The sanction by which the mandatory public system was maintained differed: criminal in Morgentaler, “administrative” in the case at bar. Yet the consequences for the individuals in both cases are serious. In Morgentaler, as here, the system left the individual facing a lack of critical care with no choice but to travel outside the country to obtain the required medical care at her own expense. It was this constraint on s. 7 security, taken from the perspective of the woman facing the health care system, and not the criminal sanction, that drove the majority analysis in Morgentaler. We therefore conclude that the decision provides guidance in the case at bar.

122 In Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, Sopinka J., writing for the majority, held that security of the person encompasses “a notion of personal autonomy involving, at the very least, control over one’s bodily integrity free from state interference and freedom from state-imposed psychological and emotional stress” (pp. 587-88). The prohibition against private insurance in this case results in psychological and emotional stress and a loss of control by an individual over her own health.

123 Not every difficulty rises to the level of adverse impact on security of the person under s. 7. The impact, whether psychological or physical, must be serious. However, because patients may be denied timely health care for a condition that is clinically significant to their current and future health, s. 7 protection of security of the person is engaged. Access to a waiting list is not access to health care. As we noted above, there is unchallenged evidence that in some serious cases, patients die as a result of waiting


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lists for public health care. Where lack of timely health care can result in death, s. 7 protection of life itself is engaged. The evidence here demonstrates that the prohibition on health insurance results in physical and psychological suffering that meets this threshold requirement of seriousness.

124 We conclude, based on the evidence, that prohibiting health insurance that would permit ordinary Canadians to access health care, in circumstances where the government is failing to deliver health care in a reasonable manner, thereby increasing the risk of complications and death, interferes with life and security of the person as protected by s. 7 of the Charter.

125 The remaining question is whether this inference is in accordance with the principles of fundamental justice. “[I]f the state [interferes] with security of the person, the Charter requires such interference to conform with the principles of fundamental justice”: Morgentaler, at p. 54, per Dickson C.J.

B. Deprivation in Accordance with the Principles of Fundamental Justice

126 Having concluded that the ban on private medical insurance constitutes a deprivation of life and security of the person, we now consider whether that deprivation is in accordance with the principles of fundamental justice. Our colleagues Binnie and LeBel JJ. argue that the record here provides no ground for finding that the deprivation violates the principles of fundamental justice. With respect, we cannot agree.

127 In Rodriguez, at pp. 590-91 and 607, Sopinka J. for a majority of this Court defined the principles of fundamental justice as legal principles that are capable of being identified with some precision and are fundamental in that they have general acceptance among reasonable people.

128 The principle of fundamental justice implicated in this case is that laws that affect the life, liberty or security of the person shall not be arbitrary. We are of the opinion that the evidence before the trial judge supports a finding that the impugned provisions are arbitrary and that the deprivation of life and security of the person that flows from them cannot therefore be said to accord with the principles of fundamental justice.

(1) Laws Shall Not Be Arbitrary: A Principle of Fundamental Justice

129 It is a well-recognized principle of fundamental justice that laws should not be arbitrary... The state is not entitled to arbitrarily limit its citizens’ rights to life, liberty and security of the person.

130 A law is arbitrary where “it bears no relation to, or is inconsistent with, the objective that lies behind [it]”. To determine whether this is the case, it is necessary to consider the state interest and societal concerns that the provision is meant to reflect: Rodriguez, at pp. 594-95.

131 In order not to be arbitrary, the limit on life, liberty and security requires not only a theoretical connection between the limit and the legislative goal, but a real connection on the facts. The onus of showing lack of connection in this sense rests with the claimant. The question in every case is whether the measure is arbitrary in the sense of bearing no real relation to the goal and hence being manifestly unfair. The more serious the impingement on the person’s liberty and security, the more clear must be the connection. Where the individual’s very life may be at stake, the reasonable person would expect a clear connection, in theory and in fact, between the measure that puts life at risk and the legislative goals.

132 In Morgentaler, Beetz J., Estey J. concurring, found that the limits on security of the person caused by rules that endangered health were “manifestly unfair” and did not conform to the principles of fundamental justice, in reasons that invoke arbitrariness. Some of the limitations bore no connection to Parliament’s objectives, in his view, while others were unnecessary to assure that those objectives were met (p. 110).

133 While cloaked in the language of manifest unfairness, this reasoning evokes the principle of fundamental justice that laws must not be arbitrary, and was so read in Rodriguez, at p. 594. Beetz J.’s concurring reasons in Morgentaler thus serve as an example of how the rule against arbitrariness may be


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implicated in the particular context of access to health care. The fact that Dickson C.J., Lamer J. concurring, found that the scheme offended a different principle of fundamental justice, namely that defences to criminal charges must not be illusory, does not detract from the proposition adopted by Beetz J. that rules that endanger health arbitrarily do not comply with the principles of fundamental justice.

(2) Whether the Prohibition on Private Medical Insurance is Arbitrary

134 As discussed above, interference with life, liberty and security of the person is impermissibly arbitrary if the interference lacks a real connection on the facts to the purpose the interference is said to serve.

135 The government argues that the interference with security of the person caused by denying people the right to purchase private health insurance is necessary to providing effective health care under the public health system. It argues that if people can purchase private health insurance, they will seek treatment from private doctors and hospitals, which are not banned under the Act. According to the government’s argument, this will divert resources from the public health system into private health facilities, ultimately reducing the quality of public care.

136 In support of this contention, the government called experts in health administration and policy. Their conclusions were based on the “common sense” proposition that the improvement of health services depends on exclusivity (R.R., at p. 591). They did not profess expertise in waiting times for treatment. Nor did they present economic studies or rely on the experience of other countries. They simply assumed, as a matter of apparent logic, that insurance would make private health services more accessible and that this in turn would undermine the quality of services provided by the public health care system.

137 The appellants, relying on other health experts, disagreed and offered their own conflicting “common sense” argument for the proposition that prohibiting private health insurance is neither necessary nor related to maintaining high quality in the public health care system. Quality public care, they argue, depends not on a monopoly, but on money and management. They testified that permitting people to buy private insurance would make alternative medical care more accessible and reduce the burden on the public system. The result, they assert, would be better care for all. The appellants reinforce this argument by pointing out that disallowing private insurance precludes the vast majority of Canadians (middle-income and low-income earners) from accessing additional care, while permitting it for the wealthy who can afford to travel abroad or pay for private care in Canada.

138 To this point, we are confronted with competing but unproven “common sense” arguments, amounting to little more than assertions of belief. We are in the realm of theory. But as discussed above, a theoretically defensible limitation may be arbitrary if in fact the limit lacks a connection to the goal.

139 This brings us to the evidence called by the appellants at trial on the experience of other developed countries with public health care systems which permit access to private health care. The experience of these countries suggests that there is no real connection in fact between prohibition of health insurance and the goal of a quality public health system.

140 The evidence adduced at trial establishes that many western democracies that do not impose a monopoly on the delivery of health care have successfully delivered to their citizens medical services that are superior to and more affordable than the services that are presently available in Canada. This demonstrates that a monopoly is not necessary or even related to the provision of quality public health care.

141 In its report The Health of Canadians — The Federal Role, the Standing Senate Committee on Social Affairs, Science and Technology discussed in detail the situations in several countries, including Sweden, Germany and the United Kingdom. The following discussion of the health care systems in these three countries is drawn directly from the findings in volume 3 of that report...

142 In Sweden, as in Canada, access to public health care is universal. The public health care system is financed predominantly by the public sector through a combination of general taxation and social


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insurance (i.e., employer/employee contributions) and employs a user fee mechanism. Unlike in Canada, private health care insurance that covers the same benefits as public insurance is “legal” in Sweden. However, only a small minority of the population purchase private insurance. The result is a system of public health care coverage that provides quality care on a broader basis than in Canada and encompasses physicians, hospital services, drugs and dental care: Kirby Report, vol. 3, at pp. 29-36. In Sweden, the availability of private health care insurance appears not to have harmed the public health care system.

143 In Germany, public health care insurance is administered by 453 Sickness Funds — private non-profit organizations structured on a regional task or occupational basis. Sickness Fund membership is compulsory for employees with gross incomes lower than approximately $63,000 Canadian, and voluntary for those with gross incomes above that level. Although all Sickness Funds are regulated at the federal level through what is known as the “Social Code Book”, they are essentially run by representatives of employees and employers. As in Sweden, public health care coverage is broader in Germany than in Canada, including physician services, hospitals, prescription drugs, diagnostic services, dental care, rehabilitative care, medical devices, psychotherapists, nursing care at home, medical services by non-physicians (physiotherapists, speech therapists, occupational therapists, etc.) and income support during sick leave...

144 In Germany, as in Sweden, private health insurance is available to individuals at a certain income level who may voluntarily opt out of the Sickness Funds. Private coverage is currently offered by 52 private insurance companies that are obliged to offer an insurance policy with the same benefits as the Sickness Funds at a premium that is no higher than the average maximum contribution to the Sickness Funds. Private health care coverage is also available to self-employed people who are excluded from the Sickness Funds and public servants who are de facto excluded from participating in Sickness Funds as their health care bills are reimbursed at the rate of 50 percent by the federal government. Private insurance covers the remainder...

145 Despite the availability of alternatives, 88 percent of the German population are covered by the public Sickness Funds: this includes 14 percent to whom private insurance is available. Of the remaining 12 percent, only 9 percent are covered by private insurance and less than 1 percent have no health insurance at all. The remaining 2 percent are covered by government insurance for military and other personnel...

146 The United Kingdom offers a comprehensive public health care system — the National Health Service (NHS) — while also allowing for private insurance. Unlike Canada, the United Kingdom allows people to purchase private health care insurance that covers the same benefits as the NHS if these services are supplied by providers working outside of the NHS. Despite the existence of private insurance, only 11.5 percent of the population have purchased it... Again, it appears that the public system has not suffered as a result of the existence of private alternatives.

147 After reviewing a number of public health care systems, the Standing Senate Committee on Social Affairs, Science and Technology concluded in the Kirby Report that far from undermining public health care, private contributions and insurance improve the breadth and quality of health care for all citizens, and it ultimately concluded, at p. 66:

The evidence suggests that a contribution of direct payments by patients, allowing private insurance to cover some services, even in publicly funded hospitals, and an expanded role for the private sector in the delivery of health services are the factors which have enabled countries to achieve broader coverage of health services for all their citizens. Some countries like Australia and Singapore openly encourage private sector participation as a means to ensure affordable and sustainable health services.

148 Nor does it appear that private participation leads to the eventual demise of public health care. It is compelling to note that not one of the countries referred to relies exclusively on either private insurance or the public system to provide health care coverage to its citizens. Even in the United States, where the


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private sector is a dominant participant in the field of health care insurance, public funding accounts for 45 percent of total health care spending: Kirby Report, vol. 3, at p. 66.

149 In summary, the evidence on the experience of other western democracies refutes the government’s theoretical contention that a prohibition on private insurance is linked to maintaining quality public health care.

150 Binnie and LeBel JJ. suggest that the experience of other countries is of little assistance. With respect, we cannot agree. This evidence was properly placed before the trial judge and, unless discredited, stands as the best guide with respect to the question of whether a ban on private insurance is necessary and relevant to the goal of providing quality public health care. The task of the courts, on s. 7 issues as on others, is to evaluate the issue in the light, not just of common sense or theory, but of the evidence. This is supported by our jurisprudence, according to which the experience of other western democracies may be relevant in assessing alleged arbitrariness. In Rodriguez, the majority of this Court relied on evidence from other western democracies, concluding that the fact that assisted suicide was heavily regulated in other countries suggested that Canada’s prohibition was not arbitrary: pp. 601-5.

151 Binnie and LeBel JJ. also suggest that the government’s continued commitment to a monopoly on the provision of health insurance cannot be arbitrary because it is rooted in reliance on “a series of authoritative reports [that analysed] health care in this country and in other countries” (para. 258); they are referring here to the reports of Commissioner Romanow (Building on Values: The Future of Health Care in Canada: Final Report (2002)), and Senator Kirby. We observe in passing that the import of these reports, which differ in many of their conclusions, is a matter of some debate, as attested by our earlier reference to the Kirby Report. But the conclusions of other bodies on other material cannot be determinative of this litigation. They cannot relieve the courts of their obligation to review government action for consistency with the Charter on the evidence before them.

152 When we look to the evidence rather than to assumptions, the connection between prohibiting private insurance and maintaining quality public health care vanishes. The evidence before us establishes that where the public system fails to deliver adequate care, the denial of private insurance subjects people to long waiting lists and negatively affects their health and security of the person. The government contends that this is necessary in order to preserve the public health system. The evidence, however, belies that contention.

153 We conclude that on the evidence adduced in this case, the appellants have established that in the face of delays in treatment that cause psychological and physical suffering, the prohibition on private insurance jeopardizes the right to life, liberty and security of the person of Canadians in an arbitrary manner, and is therefore not in accordance with the principles of fundamental justice.

II. Section 1 of the Charter

154 Having concluded that the prohibition on private health insurance constitutes a breach of s. 7, we must now consider whether that breach can be justified under s. 1 of the Charter as a reasonable limit demonstrably justified in a free and democratic society. The evidence called in this case falls short of demonstrating such justification.

155 The government undeniably has an interest in protecting the public health regime. However, given the absence of evidence that the prohibition on the purchase and sale of private health insurance protects the health care system, the rational connection between the prohibition and the objective is not made out. Indeed, we question whether an arbitrary provision, which by reason of its arbitrariness cannot further its stated objective, will ever meet the rational connection test under R. v. Oakes, [1986] 1 S.C.R. 103.

156 In addition, the resulting denial of access to timely and effective medical care to those who need it is not proportionate to the beneficial effects of the prohibition on private insurance to the health system as a


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whole. On the evidence here and for the reasons discussed above, the prohibition goes further than necessary to protect the public system: it is not minimally impairing.

157 Finally, the benefits of the prohibition do not outweigh the deleterious effects. Prohibiting citizens from obtaining private health care insurance may, as discussed, leave people no choice but to accept excessive delays in the public health system. The physical and psychological suffering and risk of death that may result outweigh whatever benefit (and none has been demonstrated to us here) there may be to the system as a whole.

158 In sum, the prohibition on obtaining private health insurance, while it might be constitutional in circumstances where health care services are reasonable as to both quality and timeliness, is not constitutional where the public system fails to deliver reasonable services. Life, liberty and security of the person must prevail. To paraphrase Dickson C.J. in Morgentaler, at p. 73, if the government chooses to act, it must do so properly.

159 We agree with Deschamps J.’s conclusion that the prohibition against contracting for private health insurance violates s. 1 of the Quebec Charter of Human Rights and Freedoms and is not justifiable under s. 9.1. We also conclude that this prohibition violates s. 7 of the Canadian Charter of Rights and Freedoms and cannot be saved under s. 1.

160 We would allow the appeal, with costs to the appellants throughout.

BINNIE AND LEBEL JJ. (dissenting) —

I. Introduction

161 The question in this appeal is whether the province of Quebec not only has the constitutional authority to establish a comprehensive single-tier health plan, but to discourage a second (private) tier health sector by prohibiting the purchase and sale of private health insurance. The appellants argue that timely access to needed medical service is not being provided in the publicly funded system and that the province cannot therefore deny to those Quebeckers (who can qualify) the right to purchase private insurance to pay for medical services whenever and wherever such services can be obtained for a fee, i.e., in the private sector. This issue has been the subject of protracted debate across Canada through several provincial and federal elections. We are unable to agree with our four colleagues who would allow the appeal that such a debate can or should be resolved as a matter of law by judges. We find that, on the legal issues raised, the appeal should be dismissed.

162 Our colleagues the Chief Justice and Major J. state at para. 105: By imposing exclusivity and then failing to provide public health care of a reasonable standard within a reasonable time, the government creates circumstances that trigger the application of s. 7 of the [Canadian] Charter. [Emphasis added.]

163 The Court recently held in Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, 2004 SCC 78, that the government was not required to fund the treatment of autistic children. It did not on that occasion address in constitutional terms the scope and nature of “reasonable” health services. Courts will now have to make that determination. What, then, are constitutionally required “reasonable health services”? What is treatment “within a reasonable time”? What are the benchmarks? How short a waiting list is short enough? How many MRIs does the Constitution require? The majority does not tell us. The majority lays down no manageable constitutional standard. The public cannot know, nor can judges or governments know, how much health care is “reasonable” enough to satisfy s. 7 of the Canadian Charter of Rights and Freedoms (“Canadian Charter”) and s. 1 of the Charter of Human Rights and Freedoms, R.S.Q. c. C-12 (“Quebec Charter”). It is to be hoped that we will know it when we see it.

164 The policy of the Canada Health Act, R.S.C. 1985, c. C-6, and its provincial counterparts is to provide health care based on need rather than on wealth or status. The evidence certainly established that the public health care system put in place to implement this policy has serious and persistent problems. This does not mean that the courts are well placed to perform the required surgery. The resolution of such


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a complex fact-laden policy debate does not fit easily within the institutional competence or procedures of courts of law. The courts can use s. 7 of the Canadian Charter to pre-empt the ongoing public debate only if the current health plan violates an established “principle of fundamental justice”. Our colleagues McLachlin C.J. and Major J. argue that Quebec’s enforcement of a single-tier health plan meets this legal test because it is “arbitrary”. In our view, with respect, the prohibition against private health insurance is a rational consequence of Quebec’s commitment to the goals and objectives of the Canada Health Act.

165 Our colleague Deschamps J. states at para. 4: In essence, the question is whether Quebeckers who are prepared to spend money to get access to health care that is, in practice, not accessible in the public sector because of waiting lists may be validly prevented from doing so by the state. [Emphasis added.]

This is so, but of course it must be recognized that the liberty and security of Quebeckers who do not have the money to afford private health insurance, who cannot qualify for it, or who are not employed by establishments that provide it, are not put at risk by the absence of “upper tier” health care. It is Quebeckers who have the money to afford private medical insurance and can qualify for it who will be the beneficiaries of the appellants’ constitutional challenge.

166 The Quebec government views the prohibition against private insurance as essential to preventing the current single-tier health system from disintegrating into a de facto two-tier system. The trial judge found, and the evidence demonstrated, that there is good reason for this fear. The trial judge concluded that a private health sector fuelled by private insurance would frustrate achievement of the objectives of the Canada Health Act. She thus found no legal basis to intervene, and declined to do so. This raises the issue of who it is that should resolve these important and contentious issues. Commissioner Roy Romanow makes the following observation in his Report:

Some have described it as a perversion of Canadian values that they cannot use their money to purchase faster treatment from a private provider for their loved ones. I believe it is a far greater perversion of Canadian values to accept a system where money, rather than need, determines who gets access to care…

Whether or not one endorses this assessment, his premise is that the debate is about social values. It is not about constitutional law. We agree.

167 We believe our colleagues the Chief Justice and Major J. have extended too far the strands of interpretation under the Canadian Charter laid down in some of the earlier cases, in particular the ruling on abortion in R. v. Morgentaler, [1988] 1 S.C.R. 30 (which involved criminal liability, not public health policy). We cannot find in the constitutional law of Canada a “principle of fundamental justice” dispositive of the problems of waiting lists in the Quebec health system. In our view, the appellants’ case does not rest on constitutional law but on their disagreement with the Quebec government on aspects of its social policy. The proper forum to determine the social policy of Quebec in this matter is the National Assembly.

168 Our colleagues the Chief Justice and Major J. write: The task of the courts, on s. 7 issues as on others, is to evaluate the issue in the light, not just of common sense or theory, but of the evidence. [para. 150]

This, of course, is precisely what the learned trial judge did after weeks of listening to expert testimony and argument. In general, we agree with her conclusions. There is nothing in the evidence to justify our colleagues’ disagreement with her conclusion that the general availability of health insurance will lead to a significant expansion of the private health sector to the detriment of the public health sector. While no one doubts that the Quebec health plan is under sustained and heavy criticism, and that at least some of the criticisms were supported by the trial judge on the basis of the evidence, the trial judge rejected the appellants’ contention (now accepted by our colleagues the Chief Justice and Major J.) that the prohibition on private insurance is contrary to the principles of fundamental justice. The trial judge’s conclusion was endorsed by Justice Forget of the Quebec Court of Appeal. As a matter of law, we see no reason to interfere with their collective and unanimous judgment on this point. Whatever else it might be, the prohibition is not arbitrary.


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169 We can all support the vague objective of “public health care of a reasonable standard within a reasonable time”. Most people have opinions, many of them conflicting, about how to achieve it. A legislative policy is not “arbitrary” just because we may disagree with it. As our colleagues the Chief Justice and Major J. fully recognize, the legal test of “arbitrariness” is quite well established in the earlier case law. In our view that test is not met in this case, for reasons we will develop in some detail. Suffice it to say at this point that in our view, the appellants’ argument about “arbitrariness” is based largely on generalizations about the public system drawn from fragmentary experience, an overly optimistic view of the benefits offered by private health insurance, an oversimplified view of the adverse effects on the public health system of permitting private sector health services to flourish and an overly interventionist view of the role the courts should play in trying to supply a “fix” to the failings, real or perceived, of major social programs.

A. The Argument About Adding an “Upper Tier” to the Quebec Health Plan

170 The nature of a two-tier system is explained as follows: In the broad sense, a two-tier system refers to two co-existing health care systems: a publicly funded system and a privately funded system. This definition implies that there is a differential access to health services based on one’s ability to pay, rather than according to need. In other words, those who can afford it may either obtain access to better quality care or to quicker care in the privately funded system, while the rest of the population continues to access health care only through the publicly funded system. [Emphasis added.] …

It is evident, of course, that neither Quebec nor any of the other provinces has a “pure” single-tier system. In the area of uninsured medical services, for example, the private sector is the dominant supplier. In other cases, the private sector may perform the service but is paid by the state. The issue here, as it is so often in social policy debates, is where to draw the line. One can rarely say in such matters that one side of a line is “right” and the other side of a line is “wrong”. Still less can we say that the boundaries of the Quebec health plan are dictated by the Constitution. Drawing the line around social programs properly falls within the legitimate exercise of the democratic mandates of people elected for such purposes, preferably after a public debate.

B. Background to the Health Policy Debate

171 Prior to 1961, only 53 percent of Canadians were covered by some form of health insurance, leaving approximately 8 million Canadians without insurance coverage (Voluntary Medical Insurance and Prepayment (1965) (“Berry Commission”), at pp. 177-78). At that time, health care costs were the number one cause of personal bankruptcy in Canada.

172 In these circumstances, the people of Quebec, through their elected representatives, opted for a need-based, rather than a wealth-based, health care system. In the Castonguay-Nepveu Report, said to be the foundation of the public health care system in Quebec, it was stated:

The maintenance of the people’s health more and more is accepted as a collective responsibility. This is not surprising since it must be admitted that without vigorous State action, the right to health would remain a purely theoretical notion, without any real content. [Emphasis added.] …

173 The Kirby Report noted in 2001 that “Canadians’ attachment to a sense of collective responsibility for the provision of health care has remained largely intact despite a shift towards more individualistic values” (vol. 4, at p. 137)... Both the Kirby Report and the Romanow Report contained extensive investigations into the operations and problems of the current public health systems across Canada. They acknowledged that the financing of health care is putting a growing stress on public finances and national resources. For fiscal year 2004-2005, federal/provincial/territorial spending on health care is estimated to be about $88 billion ... Whether this growing level of expenditure is sustainable, justified or wise is a matter on which we all have opinions. In the absence of a violation of a recognized “principle of fundamental justice”, the opinions that prevail should be those of the legislatures.


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174 Not all Canadian provinces prohibit private health insurance, but all of them (with the arguable exception of Newfoundland) take steps to protect the public health system by discouraging the private sector, whether by prohibiting private insurance (Quebec, Ontario, Manitoba, British Columbia, Alberta and Prince Edward Island) or by prohibiting doctors who opt out of the public sector, from billing their private patients more than the public sector tariff, thereby dulling the incentive to opt out (Ontario, Manitoba and Nova Scotia), or eliminating any form of cross-subsidy from the public to the private sector (Quebec, British Columbia, Alberta, Prince Edward Island, Saskatchewan and New Brunswick). The mixture of deterrents differs from province to province, but the underlying policies flow from the Canada Health Act and are the same: i.e., as a matter of principle, health care should be based on need, not wealth, and as a matter of practicality the provinces judge that growth of the private sector will undermine the strength of the public sector and its ability to achieve the objectives of the Canada Health Act.

175 The argument for a “two-tier system” is that it will enable “ordinary” Canadians to access private health care. Indeed, this is the view taken by our colleagues the Chief Justice and Major J. who quote the appellants’ argument that “disallowing private insurance precludes the vast majority of Canadians (middle-income and low-income earners) from accessing” private health care (para. 137). This way of putting the argument suggests that the Court has a mandate to save middle-income and low-income Quebeckers from themselves, because both the Romanow Report and the Kirby Report found that the vast majority of “ordinary” Canadians want a publicly financed single-tier (more or less) health plan to which access is governed by need rather than wealth and where the availability of coverage is not contingent on personal insurability. Our colleagues rely in part on the experience in the United States (para. 148) and the fact that public funding in that country accounts for only 45 percent of total health care spending. But if we look at the practical reality of the U.S. system, the fact is that 15.6 percent of the American population (i.e., about 45 million people) had no health insurance coverage at all in 2003, including about 8.4 million children. As to making health care available to medium and low-income families, the effect of “two-tier” health coverage in the U.S. is much worse for minority groups than for the majority. Hispanics had an uninsured rate of 32.7 percent, and African Americans had an uninsured rate of 19.4 percent. For 45 million Americans, as for those “ordinary” Quebeckers who cannot afford private medical insurance or cannot obtain it because they are deemed to be “bad risks”, it is a matter of public health care or no care at all …

176 It would be open to Quebec to adopt a U.S.-style health care system. No one suggests that there is anything in our Constitution to prevent it. But to do so would be contrary to the policy of the Quebec National Assembly, and its policy in that respect is shared by the other provinces and the federal Parliament. As stated, Quebec further takes the view that significant growth in the private health care system (which the appellants advocate) would inevitably damage the public system. Our colleagues the Chief Justice and Major J. disagree with this assessment, but governments are entitled to act on a reasonable apprehension of risk of such damage. As noted by the majority in R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, at para. 133: Members of Parliament are elected to make these sorts of decisions, and have access to a broader range of information, more points of view, and a more flexible investigative process than courts do.

While the existence of waiting times is undoubted, and their management a matter of serious public concern, the proposed constitutional right to a two-tier health system for those who can afford private medical insurance would precipitate a seismic shift in health policy for Quebec. We do not believe that such a seismic shift is compelled by either the Quebec Charter or the Canadian Charter.

II. Analysis

177 The appellants’ principal argument is that the existence of waiting lists in Quebec and the concurrent prohibition on private health insurance violate s. 7 of the Canadian Charter, which guarantees everyone the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. …


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180 Our colleagues the Chief Justice and Major J. agree with the appellants that there is a violation of s. 7 of the Canadian Charter. As mentioned earlier, their opinion rests in substantial part on observations made by various members of this Court in Morgentaler. At issue in that case was the criminal liability of doctors and their patients under s. 251 of the Criminal Code, R.S.C. 1970, c. C-34, for performing abortions. The nub of the legal challenge was that in creating the abortion offence Parliament had qualified the charge with a “therapeutic abortion” defence, but the defence was not working. The factual and legal issues raised in that criminal law problem are, we think, far removed from the debate over a two-tiered health system. Morgentaler applied a “manifest unfairness” test which has never been adopted by the Court outside the criminal law, and certainly not in the context of the design of social programs. The Morgentaler judgment fastened on internal inconsistencies in s. 251 of the Code, which find no counterpart here. In our view, with respect, Morgentaler provides no support for the appellants in this case, as we discuss commencing at para. 259.

181 As stated, we accept the finding of the courts below that a two-tier health care system would likely have a negative impact on the integrity, functioning and viability of the public system... Although this finding is disputed by our colleagues the Chief Justice and Major J. (a point to which we will return), it cannot be contested that as a matter of principle, access to private health care based on wealth rather than need contradicts one of the key social policy objectives expressed in the Canada Health Act. The state has established its interest in promoting the equal treatment of its citizens in terms of health care. The issue of arbitrariness relates only to the validity of the means adopted to achieve that policy objective. …

While Quebec does not outlaw private health care, which is therefore accessible to those with cash on hand, it wishes to discourage its growth. Failure to stop the few people with ready cash does not pose a structural threat to the Quebec health plan. Failure to stop private health insurance will, as the trial judge found, do so. Private insurance is a condition precedent to, and aims at promoting, a flourishing parallel private health care sector. For Dr. Chaoulli in particular, that is the whole point of this proceeding. …

B. Canadian Charter of Rights and Freedoms

… 191 Like our colleagues McLachlin C.J. and Major J., we accept the trial judge’s conclusion that in some circumstances some Quebeckers may have their life or “security of the person” put at risk by the prohibition against private health insurance. However, unlike our colleagues, we agree with the trial judge and the Quebec Court of Appeal that this situation, however deplorable, is not capable of resolution as a matter of constitutional law. At the same time, we reject some of the constraints that the Attorney General of Quebec would place on the Court’s analysis.

(1) The Application of Section 7 to Matters Not Falling Within the Administration of Justice

192 The Attorney General of Quebec argues that s. 7 does not protect economic rights. This is true, but is somewhat beside the point. The appellants seek access to a two-tier health system. The fact it will cost money to the people in the “upper tier” is an incidental (although important) aspect of their challenge, which is principled in nature.

193 Section 7 gives rise to some of the most difficult issues in Canadian Charter litigation. Because s. 7 protects the most basic interests of human beings — life, liberty and security — claimants call on the courts to adjudicate many difficult moral and ethical issues. It is therefore prudent, in our view, to proceed cautiously and incrementally in applying s. 7, particularly in distilling those principles that are so vital to our society’s conception of “principles of fundamental justice” as to be constitutionally entrenched. …

195 The present challenge does not arise out of an adjudicative context or one involving the administration of justice. Sections 11 and 15 are plainly not adjudicative provisions. Nor are they administrative provisions in the sense of being part of the administrative scheme for the provision of health services, though they do form part of the regulatory health regime. Section 11 is a civil prohibition against the making or renewing of a contract for insurance for “insured services” and against the payment under such a contract for “insured services”. Any contract entered into in contravention of s. 11 and s. 15


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would be absolutely null and unenforceable because it is contrary to the general interest: art. 1417 of the Civil Code of Québec, S.Q. 1991, c. 64. Although small fines may be imposed for the breach of these provisions, we think that regulations providing for such fines, which are wholly incidental to the regulatory purpose, would not create a sufficient nexus with the adjudicative context to ground the application of s. 7 on that basis.

196 It will likely be a rare case where s. 7 will apply in circumstances entirely unrelated to adjudicative or administrative proceedings. That said, the Court has consistently left open the possibility that s. 7 may apply outside the context of the administration of justice.

197 The Court has been moving away from a narrow approach to s. 7, which restricted the scope of the section to legal rights to be interpreted in light of the rights enumerated in ss. 8 to 14...

198 Placing s. 7 under the heading “Legal Rights” in the Canadian Charter does not narrow or control its scope. Such a result would be unduly formalistic and inconsistent with the large, liberal and purposive interpretation of s. 7 that has been the hallmark of this Court’s approach since Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486. This is evidenced by the refusal of the majority in that case to restrict “principles of fundamental justice” solely to procedural guarantees. Lamer J. observed that “the principles of fundamental justice are to be found in the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system” (p. 512 (emphasis added)).

199 Claimants whose life, liberty or security of the person is put at risk are entitled to relief only to the extent that their complaint arises from a breach of an identifiable principle of fundamental justice. The real control over the scope and operation of s. 7 is to be found in the requirement that the applicant identify a violation of a principle of fundamental justice. The further a challenged state action lies from the traditional adjudicative context, the more difficult it will be for a claimant to make that essential link. As will become clear, that is precisely the difficulty encountered by the claimants here: they are unable to demonstrate that any principle of fundamental justice has been contravened.

(2) Which Section 7 Interests Are Engaged?

200 Section 7 interests are enumerated as life, liberty and security of the person. As stated, we accept the trial judge’s finding that the current state of the Quebec health system, linked to the prohibition against health insurance for insured services, is capable, at least in the cases of some individuals on some occasions, of putting at risk their life or security of the person.

201 We do not agree with the appellants, however, that the Quebec Health Plan puts the “liberty” of Quebeckers at risk. The argument that “liberty” includes freedom of contract (in this case to contract for private medical insurance) is novel in Canada, where economic rights are not included in the Canadian Charter and discredited in the United States. In that country, the liberty of individuals (mainly employers) to contract out of social and economic programs was endorsed by the Supreme Court in the early decades of the 20th century on the theory that laws that prohibited employers from entering into oppressive contracts with employees violated their “liberty” of contract; see, e.g., Lochner v. New York, 198 U.S. 45 (1905), at p. 62: ... a prohibition to enter into any contract of labor in a bakery for more than a certain number of hours a week, is, in our judgment, so wholly beside the matter of a proper, reasonable and fair provision, as to run counter to that liberty of person and of free contract provided for in the Federal Constitution.

Of this line of cases, which was not brought to an end until West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), Professor L. H. Tribe has written that the Supreme Court of the United States: ... relied on the Fourteenth Amendment’s Due Process Clause to strike down economic legislation that the Court saw as improperly infringing on contractual liberty, but in which the Court was widely (even if not always correctly) perceived to be substituting its own judgment, in the absence of any actual constitutional mandate, for that of the legislature. [Emphasis added.] …


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202 Nor do we accept that s. 7 of the Canadian Charter guarantees Dr. Chaoulli the “liberty” to deliver health care in a private context. The trial judge correctly concluded that [TRANSLATION] “s. 7 of the Canadian charter does not protect a physician’s right to practise his or her profession without restrictions in the private sector. That is a purely economic right.” (p. 823 (emphasis in original)) The fact that state action constrains an individual’s freedom by eliminating career choices that would otherwise be available does not in itself attract the protection of the liberty interest under s. 7. The liberty interest does not, for example, include the right to transact business whenever one wishes... Nor does it protect the right to exercise one’s chosen profession. We would therefore reject Dr. Chaoulli’s claim on behalf of care providers that their liberty interest under either the Canadian Charter or the Quebec Charter has been infringed by Quebec’s single-tier public health system.

(3) Is There a Constitutional Right to Spend Money?

203 Reference has already been made to the question raised by our colleague Deschamps J. at para. 4 of her reasons:

In essence, the question is whether Quebeckers who are prepared to spend money to get access to health care that is, in practice, not accessible in the public sector because of waiting lists may be validly prevented from doing so by the state.

While we do not accept that there is a constitutional right “to spend money”, which would be a property right, we agree that if the public system fails to deliver life-saving care and an individual is simultaneously prevented from seeking insurance to cover the cost of that care in a private facility, then the individual is potentially caught in a situation that may signal a deprivation of his or her security of the person.

204 This is not to say that every encounter with a waiting list will trigger the application of s. 7. The interference with one’s mental well-being must not be trivial. It must rise above the ordinary anxiety caused by the vicissitudes of life, but it need not be so grave as to lead to serious mental anguish or nervous breakdown. Some individuals that meet this test are to be found entangled in the Quebec health system. The fact that such individuals do not include the appellants personally is not fatal to their challenge because they come here as plaintiffs purporting to represent the public interest.

205 The Court has found a deprivation of one’s psychological integrity sufficient to ground a s. 7 claim in a range of cases. In Morgentaler, the majority held that the impugned abortion provisions seriously compromised a woman’s physical and psychological integrity in a manner that constituted an infringement of her security of the person... The Court subsequently held that the criminal prohibition against assisting someone to commit suicide constituted an impingement of the claimant’s physical and psychological integrity that amounted to a deprivation of the right to security of the person under s. 7; the claimant in that case was suffering from Lou Gehrig’s disease, a rapidly deteriorating condition, which results in paralysis and eventually requires invasive life-prolonging measures to be taken... More recently, in New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, the Court was unanimous in saying that removal of a child from parental custody by the state pursuant to its wardship jurisdiction constituted a serious interference with the psychological integrity of the parent that deprived the parent of the security of the person.

206 It may also be that a lack of timely medical intervention will put the physical security of the patient at risk. The condition of a cardiac or cancer patient, for example, may seriously deteriorate if treatment is not available quickly.

207 As stated, the principal legal hurdle to the appellants’ Canadian Charter challenge is not the preliminary step of identifying a s. 7 interest potentially affected in the case of some Quebeckers in some circumstances. The hurdle lies in their failure to find a fundamental principle of justice that is violated by the Quebec health plan so as to justify the Court in striking down the prohibition against private insurance for what the government has identified as “insured services”.


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C. Principles of Fundamental Justice

208 For a principle to be one of fundamental justice, it must count among the basic tenets of our legal system: Re B.C. Motor Vehicle Act, at p. 503. It must generally be accepted as such among reasonable people. As explained by the majority in Malmo-Levine, at para. 113:

The requirement of “general acceptance among reasonable people” enhances the legitimacy of judicial review of state action, and ensures that the values against which state action is measured are not just fundamental “in the eye of the beholder only”: Rodriguez, at pp. 607 and 590 ... . In short, for a rule or principle to constitute a principle of fundamental justice for the purposes of s. 7, it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person. [First emphasis in Rodriguez; subsequent emphasis added.] …

209 Thus, the formal requirements for a principle of fundamental justice are threefold. First, it must be a legal principle. Second, the reasonable person must regard it as vital to our societal notion of justice, which implies a significant societal consensus. Third, it must be capable of being identified with precision and applied in a manner that yields predictable results. These requirements present insurmountable hurdles to the appellants. The aim of “health care of a reasonable standard within a reasonable time” is not a legal principle. There is no “societal consensus” about what it means or how to achieve it. It cannot be “identified with precision”. As the testimony in this case showed, a level of care that is considered perfectly reasonable by some doctors is denounced by others. Finally, we think it will be very difficult for those designing and implementing a health plan to predict when its provisions cross the line from what is “reasonable” into the forbidden territory of what is “unreasonable”, and how the one is to be distinguished from the other.

(1) The Experts Recognized That the Potential Market for Health Services Is Almost Limitless, and the Supply Must Therefore Be Rationed Whether by Governments in the Public Sector or Insurers or Other Health Care Providers in the Private Sector

210 Much of the argument pursued by the Chief Justice and Major J., as well as by Deschamps J. in her reasons relating to the Quebec Charter, revolves around the vexing issue of waiting lists, which have notoriously fuelled major public debates and controversies.

211 The case history of the appellant Zeliotis illustrates why rationing of health services is necessary and how it works. The trial judge, having heard all the evidence, concluded that the delays Mr. Zeliotis experienced in obtaining hip surgery were caused not by excessive waiting lists but by a number of other factors, including his pre-existing depression and his indecision and unfounded medical complaints (p. 793):

[TRANSLATION] The truth is that, in light of his personal medical impediments, the fact that he was already suffering from depression, his indecision and his complaints, which in many respects were unwarranted, it is hard to conclude that the delays that occurred resulted from lack of access to public health services, and in fact even Mr. Zeliotis’s complaints about delays are questionable. It was he who initially wanted a second opinion, it was his surgeon who hesitated because of his problems, and so on. Thus, his complaint to the director of professional services at the Royal Victoria Hospital ... was not corroborated. An out-of-court examination in connection with another case is puzzling, as Mr. Zeliotis said he was in very good health ...

Mr. Zeliotis sought a second opinion, which he was entitled to do, and this further delayed his surgery. More importantly, his physician believed that Mr. Zeliotis was not an “ideal candidate” for the surgery because he had suffered a heart attack and undergone bypass surgery earlier that year. Accordingly, neither the mere existence of waiting lists, nor the fact that certain individuals like Mr. Zeliotis feel unfairly dealt with, necessarily points to a constitutional problem with the public health system as a whole.


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(a) There Is No Consensus About What Constitutes “Reasonable” Waiting Times

212 A review of the expert evidence and the medical literature suggests that there is no consensus regarding guidelines for timely medical treatment. Dr. Wright remarked: So the issue of defining what is a reasonable waiting list is a very difficult one because if you have a hundred (100) surgeons, you have a hundred (100) opinions, it’s very difficult to come to a consensus on these questions. [A.R., at p. 1186] There are currently no national standards for timely treatment. …

213 It is therefore convenient to look further into the expert evidence, not to dispute the existence of waiting list problems or to understate the level of public anxiety they create, but simply to illustrate the complexity of the situation and the dangers of oversimplification.

(b) The Experts Accepted by the Trial Judge Relied on More Than Just “Common Sense”

214 Our colleagues the Chief Justice and Major J. dismiss the experts accepted by the trial judge as relying on little more than “common sense” (para. 137). Although we agree that the experts offered “common sense”, they offered a good deal more … The trial judge found them to be credible and reliable. We owe deference to her findings in this respect.

215 The trial judge, having heard the evidence, concluded as follows:

[TRANSLATION] ... although some of these specialists indicated a desire to be free to obtain private insurance, none of them gave their full and absolute support to the applicants' proposals, as they explained that it was neither clear nor obvious that a reorganization of the health system with a parallel private system would solve all the existing problems of delays and access. On the contrary, the specialists who testified remained quite circumspect about this complex and difficult question. [Emphasis added; p. 796.]

The exception to the consensus was the appellants’ expert, Dr. Coffey, who stated that in his opinion the development of a private insurance scheme would not affect the public health scheme. This is the argument accepted by our colleagues the Chief Justice and Major J. However on this point the trial judge observed, as on others, [TRANSLATION] “that Dr. Coffey stood alone in both his expert evaluation and the conclusions he reached” (p. 808 (emphasis in original)).

216 In addition, the Court was presented with a number of government reports and independent studies. They bear out the wisdom of the comment in Un avenir pour le système public de santé (1998) (“Denis Report”), at p. 20: [TRANSLATION] “It is important that we quickly distance ourselves from a position advocating simple solutions to complex problems.”

(c) The Lack of Accurate Data

217 How serious is the waiting-list problem? No doubt it is serious; but how serious? The first major evidentiary difficulty for the appellants is the lack of accurate data. The major studies concluded that the real picture concerning waiting lists in Canada is subject to contradictory evidence and conflicting claims… At trial, Dr. Wright also discounted the value of random opinion surveys: The information is based on no formal structured data collection of any kind and has no credibility whatever with any health service researcher or epidemiologist.

218 In a commentary for the Canadian Medical Association Journal, S. Lewis et al. observed:

The waiting-list “nonsystem” in Canada is a classic case of forced decision-making in the absence of good management information. There is a surfeit of nonstandardized data and a dearth of usable, policy-oriented information about waiting lists. The most serious consequence is that information and management defects are almost always prematurely diagnosed as financial shortages. [p. 1299]

219 Professor Marmor also subscribed to the view that waiting lists cannot serve as a “simple indicator” of a failing health care system (Expert Witness Report (1998) (“Marmor Report”), at p. 11) in part because studies of waiting lists have demonstrated that up to one third of patients on lists no longer need to be on them because the procedure has already been performed elsewhere; the patient has already been admitted


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on an emergency basis; the patient no longer wishes the procedure to be performed; the procedure is no longer medically necessary; the patient has already been called in to have the procedure but refused for personal reasons or due to inconvenient timing; or the patient is on multiple waiting lists at different hospitals thereby inflating numbers (Wright Report, at pp. 7-8).

(d) The Impact of Waiting Times on Individual Patients

220 It is even more difficult to generalize about the potential impact of a waiting list on a particular patient. The most comprehensive overview of the literature on waiting lists available to the trial judge was the McDonald Report, at p. 14. It presents a review of studies of patients’ experiences while awaiting surgery. That review prompted the authors to conclude, among other things, that patients awaiting care for a range of procedures — including knee and hip replacement, cardiac care and cataract care — may experience “emotional strains such as increased levels of anxiety due to a range of factors including lack of information and uncertainty regarding the timeline for care” (p. 267 (emphasis added)) or the “normal” anxiety or apprehension felt by anyone faced with a serious surgical procedure. In other words, waiting lists may be serious in some cases, but in how many cases and how serious?

(e) The Need to Ration Services

221 Waiting times are not only found in public systems. They are found in all health care systems, be they single-tier private, single-tier public, or the various forms of two-tier public/private (see, e.g., Kirby Report, vol. 1, at p. 111). Waiting times in Canada are not exceptional (see Kirby Report, vol. 4, at p. 41). The consequence of a quasi-unlimited demand for health care coupled with limited resources, be they public or private, is to ration services. As noted by the Arpin Report, Constats et recommandations sur les pistes à explorer: Synthèse, at p. 37:

[TRANSLATION] In any health care system, be it public or private, there is an ongoing effort to strike the proper balance... . For a public system like our own, waiting lists, insofar as priority is given to urgent cases, do not in themselves represent a flaw in the system. They are the inevitable result of a public system that can consequently offer universal access to health services within the limits of sustainable public spending. Thus, to a certain extent, they play a necessary role. [Emphasis in original.]

222 The expert witnesses at trial agreed that waiting lists are inevitable ... The only alternative is to have a substantially overbuilt health care system with idle capacity (Wright Report, at p. 6). This is not a financially feasible option, in the public or private sector.

(f) Who Should Be Allowed to Jump the Queue?

223 In a public system founded on the values of equity, solidarity and collective responsibility, rationing occurs on the basis of clinical need rather than wealth and social status ... As a result, there exists in Canada a phenomenon of “static queues” whereby a group of persons may remain on a waiting list for a considerable time if their situation is not pressing. Patients who are in greater need of health care are prioritized and treated before those with a lesser need... In general, the evidence suggests that patients who need immediate medical care receive it. There are of course exceptions, and these exceptions are properly the focus of controversy, but in our view they can and should be addressed on a case-by-case basis.

(g) Availability of Public Funding for Out-of-Province Medical Care

224 Section 10 of the Health Insurance Act provides that in certain circumstances Quebeckers will be reimbursed for the cost of “insured services” rendered outside Quebec but in Canada …, or outside Canada altogether (s. 23.2). There is no doubt that the power of reimbursement is exercised sparingly, and on occasion unlawfully... One of the difficulties in assessing the effectiveness of this individual remedy is that neither Dr. Chaoulli nor Mr. Zeliotis is before the Court with an actual medical problem. (The trial judge, as stated, dismissed Mr. Zeliotis’ personal health complaints as unsubstantiated.) The reimbursement scheme for out-of-province services exists as a form of safety valve for situations in which Quebec facilities are unable to respond. As Stein shows, there are lapses of judgment, as there will be in


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the administration of any government plan. The existence of the individual remedy, however, introduces an important element of flexibility, if administered properly.

(h) The Evidence Relied on by the Chief Justice and Major J. Did Not Satisfy the Trial Judge and Is Not, in Our View, Persuasive

225 The Chief Justice and Major J. cite Dr. Lenczner as an authority at para. 114 but the trial judge pointed out that Dr. Lenczner had not been qualified as an expert witness and counsel for Mr. Zeliotis agreed (A.R., at pp. 330-31). Dr. Lenczner’s comments were largely anecdotal and of little general application. He described a patient who was a golfer, and thus lost his access to his golf membership for that season. He also stated that a tear can increase over time and get to the point of being irreparable, but no studies or general evidence was adduced to show the incidence of such cases in Quebec. Our colleagues comment at para. 112 that “a person with coronary disease is [TRANSLATION] ‘sitting on a bomb’ and can die at any moment”. This is true, of course. He or she can die at home, or in an ambulance on the way to a hospital. Again, our colleagues write, “patients die while on waiting lists” (para. 112). This, too, is true. But our colleagues are not advocating an overbuilt system with enough idle capacity to eliminate waiting lists, and such generalized comments provide no guidance for what in practical terms would constitute an appropriate level of resources to meet their suggested standard of “public health care of a reasonable standard within a reasonable time” (para. 105).

226 We have similar concerns about the use made by the appellants of various reports in connection with other OECD countries. These “country” reports were included in an Interim Kirby Report but not in its final version. The Final Kirby Report’s recommendation was to stick with a single-tier system. We think the Court is sufficiently burdened with conflicting evidence about our own health system without attempting a detailed investigation of the merits of trade-offs made in other countries, for their own purposes. …

In fact, in the actual conclusion of vol. 3 of the Interim Kirby Report on Health Care Systems in Other Countries, the report’s authors state (at p. 73): Canadians may find some consolation in the fact that Canada is not alone in confronting complex health care issues. Everywhere in the industrialized world health care policy is thoroughly intertwined with the political, social, and even cultural life of each country. As such, every health care system is unique. Therefore, no single international model constitutes a blueprint for solving the challenges confronted by the Canadian health care system. However, experts told the Committee that careful consideration must be given to the repercussions in Canada of introducing, on a piecemeal basis, changes undertaken in other countries.

230 Taking the good with the bad, the Final Kirby Report recommended continuation of a single-tier health system (as did the Romanow Report). The authors of the Kirby Report were fully aware of the extracts from their interim report relied upon by our colleagues the Chief Justice and Major J., yet they specifically rejected two-tier health care:

Repeated public opinion polling data have shown that having to wait months for diagnostic or hospital treatment is the greatest concern and complaint that Canadians have about the health care system. The solution to this problem is not, as some have suggested, to allow wealthy Canadians to pay for services in a private health care institution. Such a solution would violate the principle of equity of access. The solution is the care guarantee as recommended in this report. [Emphasis added.]

We thus conclude that our colleagues’ extracts of some of the tour d’horizon data published in the Interim Kirby Report do not displace the conclusion of the trial judge, let alone the conclusion of the Kirby Report itself. Apart from everything else, it leaves out of consideration the commitment in principle in this country to health care based on need, not wealth or status, as set out in the Canada Health Act.

(2) Arbitrariness


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231 Our colleagues the Chief Justice and Major J. take the view that a law which arbitrarily violates life or security of the person is unconstitutional. We agree that this is a principle of fundamental justice. We do not agree that it applies to the facts of this case.

232 A deprivation of a right will be arbitrary and will thus infringe s. 7 if it bears no relation to, or is inconsistent with, the state interest that lies behind the legislation: Rodriguez, at pp. 619-20; Malmo-Levine, at para. 135. As Sopinka J. explained in Rodriguez, at pp. 594-95:

Where the deprivation of the right in question does little or nothing to enhance the state’s interest (whatever it may be), it seems to me that a breach of fundamental justice will be made out, as the individual’s rights will have been deprived for no valid purpose... . It follows that before one can determine that a statutory provision is contrary to fundamental justice, the relationship between the provision and the state interest must be considered. One cannot conclude that a particular limit is arbitrary because (in the words of my colleague, McLachlin J. at pp. 619-20) “it bears no relation to, or is inconsistent with, the objective that lies behind the legislation” without considering the state interest and the societal concerns which it reflects. [Emphasis added.]

233 We agree with our colleagues the Chief Justice and Major J. that a law is arbitrary if “it bears no relation to, or is inconsistent with, the objective that lies behind [the legislation]” (para. 130). We do not agree with the Chief Justice and Major J. that the prohibition against private health insurance “bears no relation to, or is inconsistent with” the preservation of access to a health system based on need rather than wealth in accordance with the Canada Health Act. We also do not agree with our colleagues’ expansion of the Morgentaler principle to invalidate a prohibition simply because a court believes it to be “unnecessary” for the government’s purpose. There must be more than that to sustain a valid objection.

234 The accepted definition in Rodriguez states that a law is arbitrary only where “it bears no relation to, or is inconsistent with, the objective that lies behind the legislation”. To substitute the term “unnecessary” for “inconsistent” is to substantively alter the meaning of the term “arbitrary”. “Inconsistent” means that the law logically contradicts its objectives, whereas “unnecessary” simply means that the objective could be met by other means. It is quite apparent that the latter is a much broader term that involves a policy choice. If a court were to declare unconstitutional every law impacting “security of the person” that the court considers unnecessary, there would be much greater scope for intervention under s. 7 than has previously been considered by this Court to be acceptable. (In Rodriguez itself, for example, could the criminalization of assisted suicide simply have been dismissed as “unnecessary”? As with health care, many jurisdictions have treated euthanasia differently than does our Criminal Code.) The courts might find themselves constantly second-guessing the validity of governments’ public policy objectives based on subjective views of the necessity of particular means used to advance legitimate government action as opposed to other means which critics might prefer.

… We approach the issue of arbitrariness in three steps:

(i) What is the “state interest” sought to be protected?

(ii) What is the relationship between the “state interest” thus identified and the prohibition against private health insurance?

(iii) Have the appellants established that the prohibition bears no relation to, or is inconsistent with, the state interest?

We will address each question in turn.

(a) What Is the “State Interest” Sought To Be Protected?

236 Quebec’s legislative objective is to provide high quality health care, at a reasonable cost, for as many people as possible in a manner that is consistent with principles of efficiency, equity and fiscal responsibility. Quebec (along with the other provinces and territories) subscribes to the policy objectives


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of the Canada Health Act, which include (i) the equal provision of medical services to all residents, regardless of status, wealth or personal insurability, and (ii) fiscal responsibility. An overbuilt health system is seen as no more in the larger public interest than a system that on occasion falls short. The legislative task is to strike a balance among competing interests.

237 The appellants do not challenge the constitutional validity of the objectives set out in the Canada Health Act. Thus our job as judges is not to agree or disagree with these objectives but simply to determine whether the means adopted by Quebec to implement these objectives are arbitrary.

(b) What Is the Relationship Between the “State Interest” Thus Identified and the Prohibition Against Private Health Insurance?

238 The relationship lies both in principle and in practicality.

239 In principle, Quebec wants a health system where access is governed by need rather than wealth or status. Quebec does not want people who are uninsurable to be left behind. To accomplish this objective endorsed by the Canada Health Act, Quebec seeks to discourage the growth of private-sector delivery of “insured” services based on wealth and insurability. We believe the prohibition is rationally connected to Quebec’s objective and is not inconsistent with it.

240 In practical terms, Quebec bases the prohibition on the view that private insurance, and a consequent major expansion of private health services, would have a harmful effect on the public system.

241 The trial judge put her conclusion this way (at p. 827): [TRANSLATION] The Health Insurance Act [“HEIA”] and the Hospital Insurance Act [“HOIA”] are pieces of legislation whose purpose is to create and maintain a public health care plan open to all residents of Quebec. These enactments are intended to promote the overall health of all Quebeckers without discrimination based on economic circumstances. In short, they constitute a government action whose purpose is to promote the well-being of all the people of the province.

Plainly, s. 15 HEIA and s. 11 HOIA erect economic barriers to access to private health care. However, these measures are not really intended to limit access to health care; rather, their purpose is to prevent the establishment of a parallel private system. These provisions are based on the fear that the establishment of a private health care system would rob the public sector of a significant portion of the available health care resources. The Quebec government enacted s. 15 HEIA and s. 11 HOIA to guarantee that virtually all the existing health care resources in Quebec would be available to all the people of Quebec. That is clear.

The purpose of the impugned provisions is to guarantee equal and adequate access to health care for all Quebeckers. The enactment of s. 15 HEIA and s. 11 HOIA was motivated by considerations of equality and human dignity, and it is therefore clear that there is no conflict with the general values expressed in the Canadian Charter or in the Quebec Charter of human rights and freedoms. [Emphasis in original.]

We agree.

(c) Have the Appellants Established That the Prohibition Bears No Relation to, or Is Inconsistent With, the State Interest?

242 The trial judge considered all the evidence and concluded that the expansion of private health care would undoubtedly have a negative impact on the public health system (at p. 827):

[TRANSLATION] The evidence has shown that the right of access to a parallel private health care system claimed by the applicants would have repercussions on the rights of the population as a whole. We cannot bury our heads in the sand. The effect of establishing a parallel private health care system would be to threaten the integrity, proper functioning and viability of the public system. Section 15 HEIA and s. 11 HOIA prevent this from happening and secure the existence in Quebec of a public health care system of high quality.


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As well, the Court finds that s. 15 HEIA and s. 11 HOIA are not overbroad. The only way to guarantee that all the health care resources will benefit all Quebeckers without discrimination is to prevent the establishment of a parallel private health care system. That is in fact the effect of the impugned provisions in the case at bar. [Emphasis in original.] …

(i) A Parallel Private Regime Will Have a Negative Impact on Waiting Times in the Public System

243 The appellants’ argument in favour of a parallel private regime is one of a “win/win” prediction; i.e., that waiting times in the public regime will be reduced if those who can afford private insurance leave the public waiting lists in order to receive private health care. However, the Kirby Report states flatly that “allowing a private parallel system will ... make the public waiting lines worse” (vol. 4, at p. 42 (emphasis added)). This conclusion is supported by the Romanow Report (p. 139: “[P]rivate facilities may improve waiting times for the select few ... but ... worse[n them for the many]”), the Turcotte Report (pp. 13-14), and the expert witnesses at trial (Marmor Report; Wright Report; and Bergman Report).

244 A study of a Manitoba pilot project found that in the case of cataract operations, public health patients who went to surgeons working in both private and public clinics waited far longer than patients who went to surgeons working only in the public system. The same private sector patient preference is evident from other studies and experience...

(ii) The Impact of a Parallel Private Regime on Government Support for a Public System

248 The experience in other OECD countries shows that an increase in private funding typically leads to a decrease in government funding (Le financement privé des services médicaux et hospitaliers, at p. 7; Marmor Report, at p. 6). At trial, Dr. Bergman explained that a service designed purely for members of society with less socio-economic power would probably lead to a decline in quality of services, a loss of political support and a decline in the quality of management ...

(iii) Private Insurers May “Skim the Cream” and Leave the Difficult and Costly Care to the Public Sector

249 The evidence suggests that parallel private insurers prefer to siphon off high income patients while shying away from patient populations that constitute a higher financial risk, a phenomenon known as “cream skimming” (Wright Report, at p. 17; Kirby Report, vol. 6, at p. 301). The public system would therefore carry a disproportionate burden of patients who are considered “bad risks” by the private market by reason of age, socio-economic conditions, or geographic location.

250 Similarly, private insurers may choose to avoid “high-risk” surgery. The public system is likely to wind up carrying the more complex high acuity end of the health care spectrum and, as a consequence, increase rather than reduce demand (proportionately) in the public system for certain services (Wright Report, at p. 18). …

(v) Moreover the Government’s Interest in Fiscal Responsibility and Efficiency May Best Be Served by a Single-Tier System

252 The expert witnesses at trial (other than the appellants’ witness Dr. Coffey), the Romanow Report and the Kirby Report all agree that the most cost-effective method of providing health care is through public single-tier financing. Dr. Wright testified at trial that the “public administration criterion [of the Canada Health Act] renders the Canadian Health Care System one of the most efficient in terms of the ratio of productivity to administrative costs in the world” ...

253 In particular, much is saved in a single-tier public system as a result of lower administrative costs and advertising expenses, the absence of overhead and the fact that the risk is spread over the entire population...

254 Not only is there “no evidence [that the] adoption [of a private health care system] would produce a more efficient, affordable or effective system” (Romanow Report, at p. xxiv), there is also no clear evidence that private surgical services are more efficient or less costly …


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255 With respect to the impact on the financial resources of the public system, the experts testified that the introduction of a parallel private health regime would likely increase the overall cost of health care to Canadians …

(vi) Conclusion on “Arbitrariness”

256 For all these reasons, we agree with the conclusion of the trial judge and the Quebec Court of Appeal that in light of the legislative objectives of the Canada Health Act it is not “arbitrary” for Quebec to discourage the growth of private sector health care. Prohibition of private health insurance is directly related to Quebec’s interest in promoting a need-based system and in ensuring its viability and efficiency. Prohibition of private insurance is not “inconsistent” with the state interest; still less is it “unrelated” to it.

257 In short, it cannot be said that the prohibition against private health insurance “bears no relation to, or is inconsistent with” preservation of a health system predominantly based on need rather than wealth or status, as required by the Rodriguez test, at pp. 594-95.

258 As to our colleagues’ dismissal of the factual basis for Quebec’s legislative choice, the public has invested very large sums of money in a series of authoritative reports to analyse health care in this country and in other countries. The reports uniformly recommend the retention of single-tier medicine. People are free to challenge (as do the appellants) the government’s reliance on those reports but such reliance cannot be dismissed as “arbitrary”. People are also free to dispute Quebec’s strategy, but in our view it cannot be said that a single-tier health system, and the prohibition on private health insurance designed to protect it, is a legislative choice that has been adopted “arbitrarily” by the Quebec National Assembly as that term has been understood to date in the Canadian Charter jurisprudence. …

(4) Conclusion Under Section 7 of the Canadian Charter

265 For the foregoing reasons, even accepting (as we do) the trial judge’s conclusion that the claimants have established a deprivation of the life and security of some Quebec residents occasioned in some circumstances by waiting list delays, the deprivation would not violate any legal principle of fundamental justice within the meaning of s. 7 of the Canadian Charter. On that point, too, we share the opinion of the trial judge and the Quebec Court of Appeal, as previously mentioned. … We would dismiss the appeal.


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IV. UNITED KINGDOM

A. Regina v. Secretary of State for the Home Department, ex parte Limbuela, 2005

[2005] UKHL 66

LORD BINGHAM OF CORNHILL

2. It is well known that the very sharp rise in the number of applications for asylum over the last decade or so has given rise to a number of administrative and other problems. The legislative response of successive governments has been founded on two premises in particular: that while some of the applications are made by genuine refugees, having a well-founded fear of persecution in their home countries, a majority are not but are made by so-called economic migrants, applicants seeking a higher standard of living than is available in their home countries; and that the UK is an attractive destination for such migrants because it treats, or is widely believed to treat, such applicants more generously than other countries. Thus provisions have been enacted with the object, first, of encouraging applicants to claim asylum very promptly. This is because it is thought that claims made promptly are more likely to be genuine, because such claims are easier to investigate, and because if claims are made promptly and are judged to be ill-founded, the return of the unsuccessful applicant to his country of origin is facilitated. It has also been sought, secondly, to restrict the access of asylum applicants to public funds. The object is to reduce the burden on the public purse; to restrict public support, so far as possible, to those who both need and deserve it; to mitigate the resentment widely felt towards unmeritorious applicants perceived as battening on the British taxpayer; and to discourage the arrival here of economic migrants by dispelling the international belief that applicants for asylum are generously treated. The policy and purposes underlying and expressed in a series of enactments are not in issue in these appeals. They represent a legislative choice, and the issue between the parties turns on the application of the parliamentary enactments now current.

3. Section 95 of the Immigration and Asylum Act 1999 authorises the Secretary of State to provide or arrange for the provision of support for asylum-seekers and their dependants who appear to the Secretary of State to be destitute, as defined, or likely to become so within a prescribed period. That authority is revoked by section 55(1) of the Nationality, Immigration and Asylum Act 2002 where a person makes a recorded claim for asylum but the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the UK. Each of the three respondents made recorded claims for asylum on the day of arrival in the UK or the day after, but the Secretary of State was not satisfied that any of them had made the claim as soon as practicable, and his conclusions on that point give rise to no live issue. If the legislation ended there, it would be plain that the Secretary of State could not provide or arrange for support of the respondents, even if he wished, and however dire their plight.

4. But the legislation does not end there. The prohibition in section 55(1) is qualified by section 55(5). Paragraphs (b) and (c) of subsection (5) are not immediately pertinent to these appeals, since each of the respondents is a single adult, but they show a clear parliamentary intention that the prohibition in subsection (1) should not subject children and young persons to deleterious privation. In paragraph (a) of subsection (5) Parliament recognised that the prohibition in subsection (1) could lead to a breach of an applicant's rights under the European Convention on Human Rights, which public authorities including the Secretary of State and the courts are obliged to respect by section 6 of the Human Rights Act 1998.

5. Thus 55(5)(a) authorised the Secretary of State to provide or arrange for the provision of support to a late applicant for asylum to the extent necessary for the purpose of avoiding a breach of that person's Convention rights. But the Secretary of State's freedom of action is closely confined. He may only exercise his power to provide or arrange support where it is necessary to do so to avoid a breach and to the

REINO UNIDO


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extent necessary for that purpose. He may not exercise his power where it is not necessary to do so to avoid a breach or to an extent greater than necessary for that purpose. Where (and to the extent) that exercise of the power is necessary, the Secretary of State is subject to a duty, and has no choice, since it is unlawful for him under section 6 of the 1998 Act to act incompatibly with a Convention right. Where (and to the extent) that exercise of the power is not necessary, the Secretary of State is subject to a statutory prohibition, and again has no choice. Thus the Secretary of State (in practice, of course, officials acting on his behalf) must make a judgment on the situation of the individual applicant matched against what the Convention requires or proscribes, but he has, in the strict sense, no discretion.

6. Article 3 of the European Convention prohibits member states from subjecting persons within their jurisdiction to torture or inhuman or degrading treatment or punishment. Since these appeals do not concern torture or punishment, the focus is on inhuman and degrading treatment. Does the regime imposed on late applicants amount to "treatment" within the meaning of article 3? I think it plain that it does. Section 55(1) prohibits the Secretary of State from providing or arranging for the provision of accommodation and even the barest necessities of life for such an applicant. But the applicant may not work to earn the wherewithal to support himself, since section 8 of the Asylum and Immigration Act 1996, the Immigration (Restrictions on Employment) Order 1996 (SI 1996/3225) and standard conditions included in the applicant's notice of temporary admission (breach of which may lead to his detention or prosecution) combine to prevent his undertaking any work, paid or unpaid, without permission, which is not given unless his application has been the subject of consideration for 12 months or more. This question was addressed by the Court of Appeal (Lord Phillips of Worth Matravers MR, Clarke and Sedley LJJ) in R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364, [2004] QB 36, 69, paras 56-57 and I am in complete agreement with their conclusion.

7. May such treatment be inhuman or degrading? Section 55(5)(a) assumes that it may, and that assumption is plainly correct. In Pretty v United Kingdom (2002) 35 EHRR 1, the European Court was addressing a case far removed on its facts from the present, but it took the opportunity in para 52 of its judgment (which Lord Hope has quoted, and which I need not repeat) to describe the general nature of treatment falling, otherwise than as torture or punishment, within article 3. That description is in close accord with the meaning one would naturally ascribe to the expression. Treatment is inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being. As in all article 3 cases, the treatment, to be proscribed, must achieve a minimum standard of severity, and I would accept that in a context such as this, not involving the deliberate infliction of pain or suffering, the threshold is a high one. A general public duty to house the homeless or provide for the destitute cannot be spelled out of article 3. But I have no doubt that the threshold may be crossed if a late applicant with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life. It is not necessary that treatment, to engage article 3, should merit the description used, in an immigration context, by Shakespeare and others in Sir Thomas More when they referred to "your mountainish inhumanity".

8. When does the Secretary of State's duty under section 55(5)(a) arise? The answer must in my opinion be: when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life. Many factors may affect that judgment, including age, gender, mental and physical health and condition, any facilities or sources of support available to the applicant, the weather and time of year and the period for which the applicant has already suffered or is likely to continue to suffer privation.

9. It is not in my opinion possible to formulate any simple test applicable in all cases. But if there were persuasive evidence that a late applicant was obliged to sleep in the street, save perhaps for a short and foreseeably finite period, or was seriously hungry, or unable to satisfy the most basic requirements of hygiene, the threshold would, in the ordinary way, be crossed. I do not regard O'Rourke v United Kingdom (Application No 39022/97) (unreported) 26 June 2001 as authority to the contrary: had his predicament


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been the result of state action rather than his own volition, and had he been ineligible for public support (which he was not), the Court's conclusion that his suffering did not attain the requisite level of severity to engage article 3 would be very hard to accept.

10. I agree with the majority of the Court of Appeal [2004] QB 1440 that the first instance judges who found in favour of these respondents are not shown to have erred. For the reasons given by each of my noble and learned friends, and for these reasons of my own, I would dismiss these appeals with costs.

LORD HOPE OF CRAIGHEAD

13. The question whether, and if so in what circumstances, support should be given at the expense of the state to asylum-seekers is, of course, an intensely political issue. No-one can be in any doubt about the scale of the problem caused by the huge rise in the numbers of asylum-seekers that has occurred during the past decade due to the fact that more and more people are in need of international protection. There is a legitimate public concern that this country should not make its resources too readily available to such persons while their right to remain in this country remains undetermined. There are sound reasons of policy for wishing to take a firm line on the need for applications for asylum to be made promptly and for wishing to limit the level of support until the right to remain has been determined, if and when support has to be made available.

14. It is important to stress at the outset, however, that engagement in this political debate forms no part of the judicial function. The function which your Lordships are being asked to perform is confined to that which has been given to the judges by Parliament. It is to construe the provisions of section 55(5)(a) of the 2002 Act and to apply that subsection, so construed, to the facts of each case. However, as the application of the subsection is no longer a live issue in any of these three cases for reasons that I shall explain, the judicial function that is to be performed here can be expressed more broadly. It is to provide as much guidance as we can to the Secretary of State as to the legal framework within which he must decide whether support must be made available.

15. As Laws LJ said in the Court of Appeal [2004] QB 1440, 1463, para 57, the fact that judges of the Administrative Court felt driven to take contrasting positions as to the right test for the engagement of section 55(5)(a) of the 2002 Act, notwithstanding the attention given to the subsection in two previous decisions of the Court of Appeal (R (Q) v Secretary of State for the Home Department [2004] QB 36 and R (T) v Secretary of State for the Home Department (2003) 7 CCLR 53), shows that the law in this area has got into difficulty. The problem has not been eased by the fact that, because of differences in their approach to the facts, the decision of the judges in the Court of Appeal in this case was not unanimous. So it is on a search for a solution to this problem that I propose to concentrate. Proper attention to the legal framework is the best means of ensuring that decisions are arrived at fairly and consistently in accordance with the legislation that has been enacted by Parliament.

16. The material which has been laid before us by Parliament for this purpose consists of the following: section 95 of the 1999 Act, section 55 of the 2002 Act, sections 2 and 6 of the Human Rights Act 1998 and article 3 of the European Convention on Human Rights. But it is first necessary to set out the facts of the three cases which are before us, as they provide the context for the examination of this material.

The facts

17. I propose first to summarise the facts of each of the three cases as disclosed by the judgments at first instance and by the Agreed Statement of Facts and Issues. The account which each of the appellants gave as to how and when they arrived in the United Kingdom was not accepted by the Secretary of State, but nothing turns on this now as the issue is confined to the questions raised by section 55(5) of the 2002 Act. I shall then mention some of the additional material which was before the Court of Appeal.

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18. Mr Wayoka Limbuela is a national of Angola, now aged 25. He maintains that he arrived in the United Kingdom at an unknown airport accompanied by an agent on 6 May 2003. On the same day he claimed asylum at the Asylum Screening Unit in Croydon. In the exercise of the Secretary of State's power to provide accommodation for people given temporary admission under section 4 of the 1999 Act, he was provided with emergency accommodation by NASS in Margate. But on 16 May 2003 the Secretary of State decided that he had not claimed asylum as soon as reasonably practicable. Conventional NASS support under section 95 of the1999 Act was withdrawn from him under section 55(1) of the 2002 Act. The Secretary of State also decided that there were no circumstances in Mr Limbuela's case to justify exempting him from the operation of that subsection, so on 22 July 2003 he was evicted from his NASS accommodation.

19. Mr Limbuela then spent two nights sleeping rough outside Croydon Police Station. During this time, he says, he had no money and no access to food or to washing facilities. He asked the police for a blanket, but none was provided to him. He begged for food from passers by, but he was not given anything. On 24 July 2003, having made contact with Migrant Helpline, he was able to obtain accommodation for four nights at the Lord Clyde night shelter in Kennington, where he was also provided with food. But on 28 July 2003 he was asked to leave the shelter. He was advised to contact a solicitor. He did so, and interim relief was applied for and granted by Eady J on the same day. Permission for judicial review of the Secretary of State's decision was then granted by Jackson J in relation to the issue raised by section 55(5) only.

20. When his application for judicial review came before Collins J the position was that Mr Limbuela had only had to sleep rough and been deprived of all support for two days. But Collins J was satisfied by the evidence that had been put before him that the support that he was getting from the charity in Kennington had come to an end on 28 July 2003, that thereafter he would have had nothing and that, had it not been for the granting of interim relief, he would have been obliged to sleep rough and to beg for food or find some other possible means of subsistence.

21. The evidence which was before Collins J mentioned a number of other difficulties. Mr Limbuela said that he had problems with his lower abdomen when he was interviewed on 16 May 2003. In witness statements prepared for the hearing in the Administrative Court he said that he was suffering from stomach pains for which he had been prescribed medication to take three times a day before meals. He also said that he suffered from problems with his testicles and had been in a great deal of pain. A letter from a GP was produced dated 2 February 2004 in which it was stated that Mr Limbuela had visited his surgery on three occasions since August 2003: once suffering from constipation, once suffering from a cough and once complaining of pain in the lower abdomen and testicles, dizziness and heartburn, for each of which appropriate medication had been prescribed. Mr Limbuela also stated that he was frightened to sleep outside because of his experience of the police in his own country, where he had been detained for one and a half months and beaten with sticks.

22. On 4 February Collins J granted Mr Limbuela's application for judicial review. He said that the claimant had established that, were he to be deprived of support, he would have no access to overnight accommodation and that his chances of obtaining food and other necessary facilities during the day would be remote. He would, as the judge put it, be reduced to begging or traipsing around London in the hope of finding somewhere which might provide him, perhaps irregularly, with some degree of assistance. That in his judgment, particularly in winter time, was quite sufficient to reach the threshold for what may be described as degrading treatment set by the European Court in Pretty v United Kingdom (2002) 35 EHRR 1, 33, para 52.

23. Mr Limbuela's claim for asylum was rejected on 10 June 2003. His appeal was dismissed by the adjudicator on 1 September 2003 and it was dismissed again on 26 July 2004 after it had been remitted back for reconsideration. Following further proceedings in the Immigration Appeal Tribunal his claim to


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asylum has been determined. He no longer has any claim to asylum support by virtue of section 55(5)(a) of the 2002 Act as he is no longer an asylum-seeker. (…)

Additional material

34. The background to the plight in which asylum-seekers without any other means of support find themselves is set by the fact that employers are liable to prosecution if they employ persons who have not been granted leave to enter or remain in the United Kingdom who have not been permitted to work under the Immigration Rules: Asylum and Immigration Act 1996, section 8; Immigration (Restrictions on Employment) Order 1996 (SI 1996/3225), Schedule, Part I, para 3. The notification of temporary admission that is given to asylum-seekers states that they must not enter employment, paid or unpaid, or engage in any business or profession. Provision has been made in para 360 of the Immigration Rules for asylum-seekers who have been waiting for 12 months for an initial decision to apply for permission to take up employment: see Council Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers, article 11, to which that paragraph gives effect. But permission which is given to take up employment under this rule does not include permission to become self employed or to engage in a business or professional activity. For the first 12 months asylum-seekers and their dependants are prohibited by these restrictions from earning the money they need to maintain themselves.

35. Those who have no relatives or other contacts to whom they can turn are driven almost inevitably by this system in search of help to charity. The Secretary of State put in evidence a statement by Michael Sullivan, a caseworker in NASS, which contained a list of day centres in London which were said to offer practical help and advice on benefits and finding accommodation. But Adam Sampson, the Director of Shelter, said in his statement that Shelter's experience is that the section 55 asylum-seekers they see have not been able to gain access to charitable support, or if they have, that it has been limited in duration and extent. For example, there are only two free hostels in London, one for women only which has a capacity of 15, the other for men who must be at least 30 years old which has a capacity of 36. Shelter monitored the availability of bed spaces in these shelters for a period of two months from November 2003 to January 2004. Only two were available during this period in the women's hostel and none were available in the hostel for men.

36. As Laws LJ observed [2004] QB 1440, 1454, para 27, Shelter's experience is that there is no realistic prospect of a destitute asylum-seeker obtaining accommodation through a charity. Unless he has family or friends to provide him with accommodation or with funds, he will have to sleep rough. Clients in that situation who come to Shelter for advice are frequently cold, tired, and hungry and have not had access to washing facilities. They display varying degrees of desperation and humiliation as well as mental and physical illnesses. Mr Hugo Tristram of the Refugee Council described the facilities which are available in the council's day centre. Breakfast and a hot lunch are available on weekdays, except for Wednesdays when there are sandwiches. Four showers provide limited washing facilities. The centre is closed in the evenings and at weekends. Despite extensive inquiries the Council has had very limited success in obtaining accommodation for asylum-seekers. For the most part they sleep outside their offices, in doorways or telephone boxes with not enough blankets or clothing to keep them warm. They are often lonely and frightened and feel distressed and humiliated. (…)

Article 3 of the Convention

45. Two issues of Convention law require to be examined to complete this analysis. The first is directed to the absolute nature of the prohibition contained in article 3. The second is directed to the adjectives "inhuman or degrading" which identify the nature of the treatment against which the prohibition is directed.

46. The head-note to article 3 describes its contents in these terms: "prohibition of torture". But the prohibition that it contains goes further than that. The prohibition extends also to inhuman or degrading treatment or punishment. As the article puts it, "no one shall be subjected to" treatment of that kind. The


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European Court has repeatedly said that article 3 prohibits torture and inhuman and degrading treatment in terms that are absolute: Chahal v United Kingdom (1996) 23 EHRR 413, 456-457, para 79; D v United Kingdom (1997) 24 EHRR 423, 447-448, paras 47, 49. In contrast to the other provisions in the Convention, it is cast in absolute terms without exception or proviso or the possibility of derogation under article 15: Pretty v United Kingdom 35 EHRR 1, 32, para 49. As the court put it in Pretty, p 32, para 50, article 3 may be described in general terms as imposing a primarily negative obligation on states to refrain from inflicting serious harm on persons within their jurisdiction. The prohibition is in one sense negative in its effect, as it requires the state - or, in the domestic context, the public authority - to refrain from treatment of the kind it describes. But it may also require the state or the public authority to do something to prevent its deliberate acts which would otherwise be lawful from amounting to ill-treatment of the kind struck at by the article.

47. The fact that an act of a positive nature is required to prevent the treatment from attaining the minimum level of severity which engages the prohibition does not alter the essential nature of the article. The injunction which it contains is prohibitive and the prohibition is absolute. If the effect of what the state or the public authority is doing is to breach the prohibition, it has no option but to refrain from the treatment which results in the breach. This may mean that it has to do something in order to bring that about. In some contexts rights which are not expressly stated in the Convention may have to be read into it as implied rights: see Brown v Stott [2003] 1 AC 681, 703D-G, 719E-H. But the right not to be subjected to inhuman or degrading treatment or punishment is not an implied right. Treatment of that kind is expressly prohibited by the article.

48. Issues of proportionality may arise where it is argued, as it was in R(Pretty) v Director of Public Prosecutions (Secretary of State for the Home Department intervening) [2002] 1 AC 800, that the public authority - in that case, the Director - is under an implied obligation to do something to avoid an incompatibility with the article for which he is not directly responsible. One of the questions which arose in that case was whether the Director's refusal to give the undertaking that Mrs Pretty's husband would not be prosecuted if he assisted her in her wish to commit suicide was incompatible with the article because it was disproportionate. But the situation in that case was entirely different from that which arises in this case, where the public authority which created the regime that surrounds the section 55 asylum-seeker is directly responsible for the treatment which is said to breach the Convention right. It was not suggested in Pretty that the Director had done anything which was directly prohibited by the article. Where the public authority is directly responsible for the treatment the express prohibition in the article applies, and it is absolute.

Laws LJ's spectrum analysis

49. In the Court of Appeal Laws LJ drew a distinction between what he described as breaches of article 3 which consist in violence by state servants and breaches which consists in acts or omissions by the state which expose the claimant to suffering inflicted by third parties or by circumstances: [2004] QB 1440, 1464, para 59. He recognised that the distinction which he was drawing was not the same as that which exists between positive and negative obligations: p 1466, para 63. But at p 1469, para 68 he said that, whereas state violence other than in the limited and specific cases allowed by the law is always unjustified, acts or omissions of the state which expose persons to suffering other than violence, even suffering which may in some instances be as grave from the victim's point of view as acts of violence which would breach article 3, are not categorically unjustifiable. They may, he said, be capable of justification if they arise in the administration or execution of government policy.

50. At p 1469, para 70 he drew the following conclusions from this analysis:

"In my judgment the legal reality may be seen as a spectrum. At one end there lies violence authorised by the state but unauthorised by law. This is the worst case of category (a) and is absolutely forbidden. In the British state, I am sure, it is not a reality, only a nightmare. At the other end of the spectrum lies a decision in the exercise of lawful policy, which however may expose the individual to a marked degree of


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suffering, not caused by violence but by the circumstances in which he finds himself in consequence of the decision. In that case the decision is lawful unless the degree of suffering which it inflicts (albeit indirectly) reaches so high a degree of severity that the court is bound to limit the state's right to implement the policy on article 3 grounds."

51. In the following paragraph he said that the point upon the spectrum which marked the dividing line was at the place between cases where government action is justified notwithstanding the individual's suffering and cases where it is not. He said that a person is not degraded in the particular, telling sense, if his misfortune is no more - and, of course, no less - than to be suffering (not violence) by the application of government policy:

"I do not mean to sideline such a person's hardships, which may be very great. I say only that there is a qualitative difference, important for the reach of article 3, between such a case and one where the state, by the application of unlawful violence, treats an individual as a thing and not a person." (p 1470, para 71)

52. In his conclusions of principle on article 3 at p 1473, para 77 he said that where article 3 is deployed to challenge the circumstances of lawful government policy whose application consigns an individual to circumstances of serious hardship, the article is no more nor less than the law's last word. It operated as a safety net, confining the state's freedom of action only in exceptional or extreme cases. This was the approach which led him to conclude at p 1474, para 81 that on the proved or admitted facts none of these case exhibited exceptional features so as to require the Secretary of State to act under section 55(5)(a). Carnwath and Jacob LJJ said that they agreed with Laws LJ's spectrum analysis: pp 1484, 1490, paras 118 and 140. But they reached a different conclusion on the facts.

53. I must confess to a feeling of unease about this analysis. It has no foundation in anything of the judgments that have been delivered by the European Court, and it is hard to find a sound basis for it in the language of article 3. The only classification that exists in the European Court's jurisprudence is the result of its recognition that article 3 may require states to provide protection against inhuman or degrading treatment or punishment for which they themselves are not directly responsible, including cases where such treatment is administered by private individuals: Pretty v United Kingdom 35 EHRR 1, 32-33, para 51. Where the inhuman or degrading treatment or punishment results from acts or omissions for which the state is directly responsible there is no escape from the negative obligation on states to refrain from such conduct, which is absolute. In most cases, of course, it will be quite unnecessary to consider whether the obligation is positive or negative. The real issue, as my noble and learned friend Lord Brown of Eaton-under-Heywood has indicated, is whether the state is properly to be regarded as responsible for the conduct that is prohibited by the article.

54. But the European Court has all along recognised that ill-treatment must attain a minimum level of severity if it is to fall within the scope of the expression "inhuman or degrading treatment or punishment" ... In Pretty v United Kingdom 35 EHRR 1, 33, para 52, the court said:

"As regards the types of 'treatment' which fall within the scope of article 3 of the Convention, the court's case law refers to 'ill-treatment' that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible."

It has also said that the assessment of this minimum is relative, as it depends on all the circumstances of the case such as the nature and context of the treatment or punishment that is in issue. The fact is that it is impossible by a simple definition to embrace all human conditions that will engage article 3.


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55. So the exercise of judgment is required in order to determine whether in any given case the treatment or punishment has attained the necessary degree of severity. It is here that it is open to the court to consider whether, taking all the facts into account, this test has been satisfied. But it would be wrong to lend any encouragement to the idea that the test is more exacting where the treatment or punishment which would otherwise be found to be inhuman or degrading is the result of what Laws LJ refers to as legitimate government policy. That would be to introduce into the absolute prohibition, by the backdoor, considerations of proportionality. They are relevant when an obligation to do something is implied into the Convention. In that case the obligation of the state is not absolute and unqualified. But proportionality, which gives a margin of appreciation to states, has no part to play when conduct for which it is directly responsible results in inhuman or degrading treatment or punishment. The obligation to refrain from such conduct is absolute.

Section 55(5)(a) in practice

56. The first question that needs to be addressed is whether the case engages the express prohibition in article 3. It seems to me that there can only be one answer to this question if the case is one where the Secretary of State has withdrawn support from an asylum-seeker under section 55(1) of the 2002 Act. The decision to withdraw support from someone who would otherwise qualify for support under section 95 of the 1999 Act because he is or is likely to become, within the meaning of that section, destitute is an intentionally inflicted act for which the Secretary of State is directly responsible. He is directly responsible also for all the consequences that flow from it, bearing in mind the nature of the regime which removes from asylum-seekers the ability to fend for themselves by earning money while they remain in that category. They cannot seek employment for at least 12 months, and resort to self-employment too is prohibited. As the Court of Appeal said in R (Q) v Secretary of State for the Home Department [2004] QB 36, 69, para 57, the imposition by the legislature of a regime which prohibits asylum-seekers from working and further prohibits the grant to them, when they are destitute, of support amounts to positive action directed against asylum-seekers and not to mere inaction. This constitutes "treatment" within the meaning of the article.

57. Withdrawal of support will not in itself amount to treatment which is inhuman or degrading in breach of the asylum-seeker's article 3 Convention right. But it will do so once the margin is crossed between destitution within the meaning of section 95(3) of the 1999 Act and the condition that results from inhuman or degrading treatment within the meaning of the article. This is the background to the second question which is whether, if nothing is done to avoid it, the condition of the asylum-seeker is likely to reach the required minimum level of severity. The answer to this question provides the key to the final question, which is whether the time has come for the Secretary of State to exercise his power under section 55(5)(a) to avoid the breach of the article.

58. The test of when the margin is crossed for the purposes of section 55(5)(a) of the 2002 Act is a different one from that which is used to determine whether for the purposes of section 95 of the 1999 Act the asylum-seeker is destitute. By prescribing a different regime for late claims for asylum, the legislation assumes that destitution, as defined in section 95(3), is not in itself enough to engage section 55(5)(a). I think that it is necessary therefore to stick to the adjectives used by article 3, and to ask whether the treatment to which the asylum-seeker is being subjected by the entire package of restrictions and deprivations that surround him is so severe that it can properly be described as inhuman or degrading treatment within the meaning of the article.

59. It is possible to derive from the cases which are before us some idea of the various factors that will come into play in this assessment: whether the asylum-seeker is male or female, for example, or is elderly or in poor health, the extent to which he or she has explored all avenues of assistance that might be expected to be available and the length of time that has been spent and is likely to be spent without the required means of support. The exposure to the elements that results from rough-sleeping, the risks to health and safety that it gives rise to, the effects of lack of access to toilet and washing facilities and the


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humiliation and sense of despair that attaches to those who suffer from deprivations of that kind are all relevant. Mr Giffin QC for the Secretary of State accepted that there will always in practice be some cases where support would be required - for example those cases where the asylum-seeker could only survive by resorting to begging in the streets or to prostitution. But the safety net which section 55(5)(a) creates has a wider reach, capable of embracing all sorts of circumstances where the inhumanity or degradation to which the asylum-seeker is exposed attracts the absolute protection of the article.

60. It was submitted for the Secretary of State that rough sleeping of itself could not take a case over the threshold. This submission was based on the decision in O'Rourke v United Kingdom, (Application No 39022/97) (unreported) 26 June 2001. In that case the applicant's complaint that his eviction from local authority accommodation in consequence of which he was forced to sleep rough on the streets was a breach of article 3 was held to be inadmissible. The court said that it did not consider that the applicant's suffering following his eviction attained the requisite level to engage article 3, and that even if it had done so the applicant, who was unwilling to accept temporary accommodation and had refused two specific offers of permanent accommodation in the meantime, was largely responsible for the deterioration in his health following his eviction. As Jacob LJ said in the Court of Appeal [2004] QB 1440, 1491, para 145, however, the situation in that case is miles way from that which confronts section 55 asylum-seekers who are not only forced to sleep rough but are not allowed to work to earn money and have no access to financial support by the state. The rough sleeping which they are forced to endure cannot be detached from the degradation and humiliation that results from the circumstances that give rise to it.

61. As for the final question, the wording of section 55(5)(a) shows that its purpose is to prevent a breach from taking place, not to wait until there is a breach and then address its consequences. A difference of view has been expressed as to whether the responsibility of the state is simply to wait and see what will happen until the threshold is crossed or whether it must take preventative action before that stage is reached. In R (Q) v Secretary of State for the Home Department [2004] QB 36 the court said that the fact that there was a real risk that the asylum-seeker would be reduced to the necessary state of degradation did not of itself engage article 3, as section 55(1) required the Secretary of State to decline to provide support unless and until it was clear that charitable support had not been provided and the individual was incapable of fending for himself: p 70, para 63. But it would be necessary for the Secretary of State to provide benefit where the asylum-seeker was so patently vulnerable that to refuse support carried a high risk of an almost immediate breach of article 3: p 71, para 68. In R (Zardasht) v Secretary of State for the Home Department [2004] EWHC 91 (Admin) Newman J asked himself whether the evidence showed that the threshold of severity had been reached. In R (T) v Secretary of State for the Home Department 7 CCLR 53 the test which was applied both by Maurice Kay J in the Administrative Court and by the Court of Appeal was whether T's condition had reached or was verging on the degree of severity described in Pretty v United Kingdom 35 EHRR 1.

62. The best guide to the test that is to be applied is, as I have said, to be found in the use of the word "avoiding" in section 55(5)(a). It may be, of course, that the degree of severity which amounts to a breach of article 3 has already been reached by the time the condition of the asylum-seeker has been drawn to his attention. But it is not necessary for the condition to have reached that stage before the power in section 55(5)(a) is capable of being exercised. It is not just a question of "wait and see". The power has been given to enable the Secretary of State to avoid the breach. A state of destitution that qualifies the asylum-seeker for support under section 95 of the 1999 Act will not be enough. But as soon as the asylum-seeker makes it clear that there is an imminent prospect that a breach of the article will occur because the conditions which he or she is having to endure are on the verge of reaching the necessary degree of severity the Secretary of State has the power under section 55(5)(a), and the duty under section 6(1) of the Human Rights Act 1998, to act to avoid it.

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63. For the reasons already mentioned, the respondents no longer have any claim for asylum support by virtue of section 55(5)(a) of the 2002 Act. But it is right nevertheless that we should dispose of these appeals. I agree with the majority in the Court of Appeal that there are no grounds for interfering with the conclusions of the judges who heard these applications. In each case there was sufficient evidence to justify the conclusion that there was an imminent prospect that the way they were being treated by the Secretary of State, in the context of the entire regime to which they were being subjected by the state, would lead to a condition that was inhuman or degrading. I would dismiss the appeals.

LORD SCOTT OF FOSCOTE

64. I have had the advantage of reading in advance the opinions on these appeals of my noble and learned friends Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood and am in agreement with them that for the reasons they give these appeals should be dismissed. There is very little that I wish to add.

65. An issue that troubled me initially was whether for the purposes of article 3 of the European Convention on Human Rights there had been any relevant "treatment" of the respondents by the Secretary of State or the officials for whom he is responsible. The article declares that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. No question arises in these three cases as to either "torture" or "punishment". It is, however, in issue whether the respondents were the recipients of "treatment".

66. It was submitted by Mr Giffin QC, counsel for the Secretary of State, that a failure by the state to provide an individual within its jurisdiction with accommodation and the wherewithal to acquire food and the other necessities of life could not by itself constitute "treatment" for article 3 purposes. I agree with that submission, whether the individual in question is an asylum seeker or anyone else. It is not the function of article 3 to prescribe a minimum standard of social support for those in need (c/f Chapman v United Kingdom (2001) 33 EHRR 399). That is a matter for the social legislation of each signatory state. If individuals find themselves destitute to a degree apt to be described as degrading the state's failure to give them the minimum support necessary to avoid that degradation may well be a shameful reproach to the humanity of the state and its institutions but, in my opinion, does not without more engage article 3. Just as there is no ECHR right to be provided by the state with a home, so too there is no ECHR right to be provided by the state with a minimum standard of living: "treatment" requires something more than mere failure.

67. The situation seems to me, however, to be quite different if a statutory regime is imposed on an individual, or on a class to which the individual belongs, barring that individual from basic social security and other state benefits to which he or she would, were it not for that statutory regime, be entitled. The social legislation in this country does make provision for accommodation and welfare benefits to be made available to asylum seekers who would otherwise be destitute. As Lord Bingham has explained, section 95 of the Immigration and Asylum Act 1999 does so (see para 3 of his opinion). It was necessary for provision of that sort to be made because asylum seekers are, by the conditions on which they are permitted temporary residence in this country, barred from working. So they cannot by their own efforts obtain the funds by means of which to support themselves.

68. The problem that has led to this litigation arises, however, because section 55(1) of the 2002 Act forbade the Secretary of State from providing support to those asylum seekers who in his opinion had failed to make their claim for asylum as soon as practicable after their arrival in the United Kingdom. These asylum seekers were removed by section 55(1) from those destitute asylum seekers for whom the Secretary of State was able to provide under the various statutory powers that would otherwise have been available for that purpose. This removal, coupled with the bar on their supporting themselves by their own labour, plainly, in my opinion, constitutes "treatment" of them for article 3 purposes.


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69. An analogy would, I think, be a bar from medical treatment under the NHS. The ECHR does not require signatory states to have a national health scheme free at the point of need. In this country we have such a scheme. Asylum seekers are entitled to make use of it whether or not they have applied for asylum as soon as practicable after arrival here. The section 55(1) bar on provision of support does not extend to a ban on medical treatment under the NHS. But suppose that it did. It could not, in my opinion, sensibly be argued that a statutory bar preventing asylum seekers, or a particular class of asylum seekers, from obtaining NHS treatment would not be treatment of them for article 3 purposes.

70. Each of these appellants was caught by the section 55(1) bar, subject only to the long-stop relief provided by section 55(5). That sub-section, coupled with section 6 of the Human Rights Act 1998, placed the Secretary of State under a mandatory obligation to them - and to any other destitute asylum seeker caught by section 55(1) - to exercise his various powers to make provision for them "for the purpose of avoiding a breach of [their] Convention rights (within the meaning of the Human Rights Act 1998)" (s 55(5) of the 2002 Act). The Convention right in play is their right not to be subjected to "inhuman or degrading treatment" (article 3). So the question is whether their respective states of destitution, brought about by the combination of the removal of entitlement to benefits (other than necessary medical assistance) and the bar on their engaging in any money earning activity, had reached the degree of severity necessary to constitute a state of degradation for article 3 purposes.

71. My Lords I have no doubt that, in the cases of Mr Adam and Mr Limbuela, the Court of Appeal was correct in concluding that it had. And, in my opinion, the same conclusion would have been justifiable in the case of Mr Tesema. None of the three had any funds of his own with which to obtain accommodation. Mr Adam had to sleep rough, out of doors, for about a month. Mr Giffin submitted on behalf of the Secretary of State that being obliged to sleep out of doors did not necessarily reach the requisite standard of severity as to constitute degradation. As a general proposition I can agree with that. Most of us will have slept out of doors on occasion; sometimes for fun and occasionally out of necessity. But these occasions lack the features of sleeping rough that these respondents had to endure under the statutory regime imposed on them. Not only did they have to face up to the physical discomfort of sleeping rough, with a gradual but inexorable deterioration in their cleanliness, their appearance and their health, but they had also to face up to the prospect of that state of affairs continuing indefinitely. People can put up with a good deal of discomfort and privation if they know its duration is reasonably short-lived and finite. Asylum seekers caught by section 55(1) do not have that comfort. Growing despair and a loss of self-respect are the likely consequences of the privation to which destitute asylum seekers, with no money of their own, no ability to seek state support and barred from providing for themselves by their own labour are exposed.

72. The combination of section 55(1) and section 55(5) places the Secretary of State in a difficult and unenviable position. Subsection (1) makes it positively unlawful for him to provide support to any asylum seeker who has not made his asylum claim "as soon as reasonably practicable". But subsection (5), in conjunction with section 6 of the 1998 Act, requires him to provide that support "to the extent necessary for the purpose of avoiding …" (emphasis added) a breach of the asylum seeker's article 3 right not to be subjected to inhuman or degrading treatment. The statutory reference to "avoiding", rather than to "remedying" or "remedying as soon as practicable" or to other like words, indicate that the Secretary of State is expected to take action before a breach of the Convention right has occurred. A literal approach to subsections (1) and (5) would create for the Secretary of State an impossible tightrope to tread. He would be bound to fall off one side or the other in almost every case. But he cannot be expected to take action to relieve the destitution of an asylum seeker until he knows of it. And he must be allowed some judgmental latitude in deciding whether the destitute state of a particular asylum seeker is imminently approaching the severity threshold, or has crossed the threshold, of article 3 degradation. For my part, information that a particular asylum seeker was having to sleep out of doors would be a very strong indication that the threshold had been reached. Subject to that I agree that each case would have to be judged on its own facts.


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73. The point has been made on behalf of the Secretary of State that the policy that state benefits should not be provided to asylum seekers who do not promptly on arrival in this country make their asylum applications is a lawful policy that should not be frustrated by over-indulgent judicial decisions. The policy in question, however, is only a lawful policy if it does not lead to breaches of article 3 rights of asylum seekers. If and to the extent that it does lead to those breaches it is not a lawful policy. The legislative policy to which expression is given in section 55 requires subsections (1) and (5) to be read together. It was not the legislative policy that the regime imposed on asylum seekers should lead to breaches of their human rights. The legislature expected the Secretary of State to intervene before that state was reached. There is, therefore, no question that your Lordships' decision to dismiss this appeal constitutes a failure to uphold the implementation of a lawful policy.

74. I would, for the reasons given more fully by my noble and learned friends, dismiss these appeals.

BARONESS HALE OF RICHMOND

75. I also agree that these appeals should be dismissed. Two points deserve emphasis. The first is that we are respecting, rather than challenging, the will of Parliament. Section 55(5)(a) of the Nationality, Immigration and Asylum Act 2002 makes it clear that Parliament did not intend, when depriving the Secretary of State of power to provide support for a late claiming asylum seeker, that he should act in breach of that person's Convention rights. Quite the contrary. Parliament expressly provided that the duty to refuse support to such a person does not prevent the exercise of a power by the Secretary of State to the extent necessary to avoid a breach of a person's Convention rights. Thus was the duty of any public authority, under section 6 of the Human Rights Act 1998, to refrain from acting in a way which is incompatible with a Convention right, deliberately preserved. The only question for us, therefore, is whether the provision of some support for these respondents was necessary to avoid a breach of their Convention rights.

76. The Convention right in question is the right under article 3, not to be subjected to torture or to inhuman or degrading treatment or punishment. Along with article 2, the right to life, this is the most important of the Convention rights. It reflects the fundamental values of a decent society, which respects the dignity of each individual human being, no matter how unpopular or unworthy she may be. The only question for the Secretary of State, and for us, is whether that right is breached.

77. Secondly, in common with my noble and learned friend, Lord Hope of Craighead, I am uneasy with the 'spectrum' analysis developed by Laws LJ in this case and the later case of R (Gezer) v Secretary of State for the Home Department [2004] EWCA Civ 1730. It invites fine distinctions which have no basis in the Convention jurisprudence. That jurisprudence is quite clear in recognising two situations in which the state can be held responsible for somebody's suffering. The first is when the state has itself subjected that person to such suffering. The second is when the state should have intervened to protect a person from suffering inflicted by others. Quite clearly, different considerations arise in the second type of case, and I notice that my noble and learned friend, Lord Brown of Eaton-under-Heywood, has excluded them from his analysis in paragraph 92. The cases before us clearly fall within the first category. The state has taken the Poor Law policy of 'less eligibility' to an extreme which the Poor Law itself did not contemplate, in denying not only all forms of state relief but all forms of self sufficiency, save family and philanthropic aid, to a particular class of people lawfully here. We can all understand the reasons for doing so. But it is of the essence of the state's obligation not to subject any person to suffering which contravenes article 3 that the ends cannot justify the means.

78. The only question, therefore, is whether the degree of suffering endured or imminently to be endured by these people reaches the degree of severity prohibited by article 3. It is well known that a high threshold is set but it will vary with the context and the particular facts of the case. There are many factors to be taken into account. Sleeping rough in some circumstances might not qualify. As my noble and learned friend, Lord Scott of Foscote says, no doubt sometimes it can be fun. But this is not a country in which it is generally possible to live off the land, in an indefinite state of rooflessness and cashlessness. It


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might be possible to endure rooflessness for some time without degradation if one had enough to eat and somewhere to wash oneself and one's clothing. It might be possible to endure cashlessness for some time if one had a roof and basic meals and hygiene facilities provided. But to have to endure the indefinite prospect of both, unless one is in a place where it is both possible and legal to live off the land, is in today's society both inhuman and degrading. We have to judge matters by the standards of our own society in the modern world, not by the standards of a third world society or a bygone age. If a woman of Mr Adam's age had been expected to live indefinitely in a London car park, without access to the basic sanitary products which any woman of that age needs and exposed to the risks which any defenceless woman faces on the streets at night, would we have been in any doubt that her suffering would very soon reach the minimum degree of severity required under article 3? I think not.

79. While there can be no hard and fast rules, I would entirely support the practical guidance given in paragraph 7 by my noble and learned friend, Lord Bingham of Cornhill. Accordingly, I too would dismiss these appeals.

LORD BROWN OF EATON-UNDER-HEYWOOD

(…) 86. There was much argument before your Lordships, advanced both orally by the parties and in their and the various interveners' extensive printed cases, as to the correct approach to take to article 3.

87. The rival arguments are essentially these. The respondents and the interveners point out that article 3 is often analysed as including both negative and positive obligations, the state being not merely prohibited from itself mistreating individuals but also on occasion required to take positive steps to prevent individuals suffering at the hands of others (or, indeed, from natural causes). The state's negative obligation is said to be absolute, its positive obligation not so. State activity causing suffering of sufficient severity is categorically forbidden; state passivity may be justified. Given the finding of the Court of Appeal in R (Q) v Secretary of State for the Home Department [2004] QB 36, 69, para 57 that the legislative regime imposed on late claimants "amounts to positive action directed against asylum seekers and not to mere inaction", it is contended that their suffering is of sufficient severity to involve without more a breach of article 3: the policy considerations underlying section 55 (1) are said to be immaterial.

88. Mr Giffin QC for the Secretary of State submits that this is too mechanistic an approach. He supports instead the spectrum analysis suggested by Laws LJ in the Court of Appeal (paras 57-77) (later carried further in R (Gezer) v Secretary of State for the Home Department [2004] EWCA Civ 1730 (paras 24-29)), an approach which requires that in all but extreme cases a wide range of factors must be considered to decide where on the spectrum a particular case lies and whether, therefore, article 3 liability is engaged.

89. For my part I find much of Laws LJ's analysis useful, not because I think it helpful to try to place each article 3 complaint on a spectrum (an exercise which invites needless comparisons with other cases) but rather because it highlights the many different considerations in play and the need in all but the clearest cases "to look at the problem in the round", as I put it in N v Secretary of State for the Home Department (Terrence Higgins Trust intervening) [2005] 2 AC 296, 329, para 88.

90. Of course, any case involving torture will without more violate article 3—certainly torture as defined by article 1(1) of the United Nations Convention Against Torture: "severe pain or suffering, whether physical or mental … inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity [excluding] pain or suffering arising only from, inherent in or incidental to lawful sanctions." There can be no room there for any policy justification: prohibition against such action is absolute and unqualified. But insofar as the respondents and/or interveners contend for the need in every article 3 case first to categorise the state's obligation as either negative or positive, only in the latter cases having regard to proportionality or indeed anything other than whether the victims' suffering is sufficiently severe to meet the article 3 threshold, I cannot agree.

91. Take the case of N itself where the question whether the UK could lawfully deport the AIDS-afflicted complainant realistically involved deciding whether the state was obliged to continue her expensive


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treatment here. Or, indeed, take the present case which could similarly be analysed as a complaint of failure to take positive action by way of support. True it is that the legislative regime here in force not only denies support but also prohibits asylum seekers from working, an important factor in the Court of Appeal's decision in Q to regard the case as one of "positive action … not … mere inaction." But assume the ban on working were to be lifted and a complaint then made by someone obviously unemployable. Surely the approach would not be fundamentally different.

92. I repeat, it seems to me generally unhelpful to attempt to analyse obligations arising under article 3 as negative or positive, and the state's conduct as active or passive. Time and again these are shown to be false dichotomies. The real issue in all these cases is whether the state is properly to be regarded as responsible for the harm inflicted (or threatened) upon the victim. …

93. In particular this seems to me the better approach in cases like the present where the essence of the complaint is that the victims have been subjected to degrading treatment, a concept authoritatively explained in the judgment of the European Court of Human Rights in Pretty v United Kingdom (2002) 35 EHRR 1, 33, para 52:

"Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading …"

94. In cases of alleged degrading treatment the subjective intention of those responsible for the treatment (whether by action or inaction) will often be relevant. What was the motivation for the treatment? Was its object to humiliate or debase? For example, as long ago as 1973 the European Commission of Human Rights in East African Asians v United Kingdom, (1973) 3 EHRR 76, 86, para 207, held that "publicly to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity," a decision applied very recently in Moldovan v Romania (Application Nos 41138/98 and 64320/01) (unreported) 12 July 2005, where the ECtHR upheld the claim of a number of Roma, referring, at para 113, to their "living conditions and the racial discrimination to which they had been publicly subjected by the way in which their grievances were dealt with by the various authorities."

95. Degrading treatment was also recently found by the ECtHR in Iwanczuk v Poland (2001) 38 EHRR 148, where a remand prisoner, wishing to exercise his right to vote in parliamentary elections, was made to strip naked in front of a group of prison guards so as to cause him feelings of humiliation and inferiority (a finding to be contrasted with the court's rejection of the article 3 complaint in Raninen v Finland (1997) 26 EHRR 563, where the complainant had been handcuffed unjustifiably and in public but not with the intention of debasing or humiliating him and not so as to affect him sufficiently to attain the minimum level of severity).

96. So much for the approach to be taken generally in article 3 cases and in particular those where the principal complaint is of degrading treatment. What, on that approach, should be the outcome of these appeals? Mr Giffin urges upon your Lordships a number of considerations. First, the justification of the various policies underlying section 55(1), essentially to deter unmeritorious asylum claims, to encourage those claiming asylum to do so promptly, and to save public money (all as more fully explained by my noble and learned friends Lord Bingham of Cornhill and Lord Hope of Craighead respectively at paragraphs 2 and 13 above). These policies, I understand Mr Giffin to submit, necessarily contemplate that those disqualified from support under section 55(1) may suffer street homelessness: why else, he asks rhetorically, would anyone offer them accommodation if not to avoid that? An asylum seeker falling within section 55(1), Mr Giffin points out, could by definition (see the Court of Appeal's decision in Q [2004] QB 36 as to what is meant by "as soon as reasonably practicable") reasonably have been expected to claim asylum earlier than he had, regard being had to his state of mind at the time including the effect of anything said to him by an agent facilitating his entry. In further support of the legitimacy of the policy


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Mr Giffin draws our attention to article 16(2) of Council Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers:

"Member States may refuse conditions [defined by article 13.2 as provisions to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence] in cases where an asylum seeker has failed to demonstrate that the asylum claim was made as soon as reasonably practicable after arrival in that Member State."

97. Secondly, Mr Giffin relies on the statement by the ECtHR in O'Rourke v United Kingdom (Application No 39022/97) (unreported) 26 June 2001, that the applicant's suffering, notwithstanding that he had remained on the streets for 14 months to the detriment of his health, had not "attained the requisite level of severity to engage article 3". Indeed, he submits, the jurisprudence of the ECtHR goes further than this. In Chapman v United Kingdom (2001) 33 EHRR 399, para 99 echoing earlier case law, the court said:

"It is important to recall that article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the contracting states many persons who have no home. Whether the state provides funds to enable everyone to have a home is a matter for political not judicial decision."

98. Referring back to that paragraph the court in O'Rourke, said: "it considers therefore that the scope of any positive obligation to house the homeless must be limited." How much less scope, Mr Giffin might have suggested, is there for imposing a positive obligation on the state to house, not their own indigenous homeless but late asylum seekers whom there are good policy reasons for not housing.

99. Powerful though I recognise these arguments to be, in common with the other Members of the Committee I too would reject them. It seems to me one thing to say, as the ECtHR did in Chapman, that within the contracting states there are unfortunately many homeless people and whether to provide funds for them is a political, not judicial, issue; quite another for a comparatively rich (not to say northerly) country like the UK to single out a particular group to be left utterly destitute on the streets as a matter of policy. In 1999, in a foreword to a government paper, "Coming in from the cold: the Government's strategy on rough sleeping", the Prime Minister wrote:

"On the eve of the 21st century, it is a scandal that there are still people sleeping rough on our streets. This is not a situation that we can continue to tolerate in a modern and civilised society."

100. The paper, of course, was directed rather to the indigenous population, and in particular groups such as careleavers, ex-servicemen and ex-offenders, than to asylum seekers (who were not mentioned). But asylum seekers, it should be remembered, are exercising their vital right to claim refugee status and meantime are entitled to be here. Critically, moreover, unlike UK nationals, they have no entitlement whatever to other state benefits.

101. I do not wish to minimise the advantages which the government seek to gain from their policy towards late claimants. But nor should these be overstated. It is in reality unlikely that many claims will be made earlier as a result of it. Nor do the statistics suggest that late claimants make a disproportionate number of the unmeritorious claims. But more important to my mind is that, as Mr Giffin recognises, the policy's necessary consequence is that some asylum seekers will be reduced to street penury. This consequence must therefore be regarded either as intended, in which case it can readily be characterised as involving degrading treatment (see paras 95 and 96 above), or unintended, involving hardship to a degree recognised as disproportionate to the policy's intended aims. Either way, in my opinion, street homelessness would cross the threshold into article 3 degrading treatment. (…)


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V. INDIA

A. Olga Tellis v Bombay Municipal corp, 1986

1986 AIR SC 180 (Indian Supreme Court)

[Y.V. CHANDRACHUD, C.J., S. MURTAZA FAZAL ALI, V.D. TULZAPURKAR, 0. CHINNAPPA REDDY AND A. VARADARAJAN, JJ.]

The Judgment of the Court was delivered by CHANDRACHUD, CJ.

These Writ Petitions portray the plight of lakhs of persons who live on pavements and in slums in the city of Bombay. They constitute nearly half the population of the city. The first group of petitions relates to pavement dwellers while the second group relates to both pavement and Basti or Slum dwellers. Those who have made pavements their homes exist in the midst of filth and squalor, which has to be seen to be believed. Rabid dogs in search of stinking meat and cats in search of hungry rats keep them company. They cook and sleep where they ease, for no conveniences are available to them. Their daughters, come of age, bathe under the nosy gaze of passers by, unmindful of the feminine sense of bashfulness. The cooking and washing over, women pick lice from each others hair. The boys beg. Menfolk, without occupation, snatch chains with the connivance of the defenders of law and order; when caught, if at all, they say : "Who doesn’t commit crimes in this city ?"

It is these men and women who have come to this Court to ask for a judgment that they cannot be evicted from their squalid shelters without being offered alternative accommodation. They rely for their rights on Article 21 of the Constitution which guarantees that no person shall be deprived of his life except according to procedure established by law. They do not contend that they have a right to live on the pavements. Their contention is that they have a right to live, a right which cannot be exercised without the means of livelihood. They have no option but to flock to big cities like Bombay, which provide the means of bare subsistence. They only choose a pavement or a slum which is nearest to their place of work. In a word, their plea is that the right to life is illusory without a right to the protection of the means by which alone life can be Lived. And, the right to life can only be taken away or abridged by a procedure established by law, which has to be fair and reasonable, not fanciful or arbitrary such as is prescribed by the Bombay Municipal Corporation Act or the Bombay Police Act. They also rely upon their right to reside and settle in any part of the country which is guaranteed by Article 19(1)(e).

The three petitioners in the group of Writ Petitions 4610-4612 of 1981 are a journalist and two pavement dwellers. One of these two pavement dwellers, P. Angamuthu, migrated from Salem, Tamil Nadu, to Bombay in the year 1961 in search of employment. He was a landless labourer in his home town but he was rendered , jobless because of drought. He found a job in a Chemical Company at Dahisar, Bombay, on a daily wage of Rs.23 per day. A slum-lord 45 extorted a sum of Rs.2,500 from him in exchange of a shelter of plastic sheets and canvas on a pavement on the Western Express Highway, Bombay. He lives in it with his wife and three daughters who are 16, 13 and 5 years of age.

The second of the two pavement dwellers came to Bombay in 1969 from Sangamner,. District Ahmednagar, Maharashtra. He was a cobbler earning 7 to 8 rupees a day, but his so-called house in the village fell down. He got employment in Bombay as a Badli Kamgar for Rs. 350 per month. He was lucky in being able to obtain a "dwelling house" on a pavement at Tulsiwadi by paying Rs. 300 to a goonda of the locality. The bamboos and the plastic sheets cost him Rs. 700.

On July 13, 1981 the then Chief Minister of Maharashtra, Shri A.R. Antulay, made an announcement which was given wide publicity by the newspapers that all pavement dwellers in the city of Bombay will be evicted forcibly and deported to their respective places of origin or removed to places outside the city of Bombay. The Chief Minister directed the Commissioner of Police to provide the necessary assistance to


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respondent 1, the Bombay Municipal Corporation, to demolish the pavement dwellings and deport the pavement dwellers. The apparent justification which the Chief Minister gave to his announcement was : "It is a very inhuman existence. These structures are flimsy and open to the elements. During the monsoon there is no way these people can live' comfortably."

0n July 23, 1981 the pavement dwelling of P. Angamuthu was demolished by the officers of the Bombay Municipal Corporation. He and the members of his family were put in a bus for Salem. His wife and daughters stayed back in Salem but he returned to Bombay in search of a job and got into a pavement house once again. The dwelling of the other petitioner was demolished even earlier, in January 1980 but he rebuilt it. It is like a game of hide and seek. The Corporation removes the ramshackle shelters on the pavements with the aid of police, the pavement dwellers flee to less conspicuous pavements in by-lanes and, when the officials are gone, they return to their old habitats. Their main attachment to those places is the nearness thereof to their place of work. In the other batch of writ petitions Nos. 5068-79 of 1981, which was heard along with the petitions relating to pavement dwellers, there are 12 petitioners. The first five of these are residents of Kamraj Nagar, a basti or habitation which is alleged to have come into existence in about 1960-61, near the Western Express Highway, Bombay. The next four petitioners were residing in structures constructed off the Tulsi Pipe Road, Mahim, Bombay. Petitioner No. 10 is the Peoples' Union of Civil Liberties, petitioner No. 11 is the Conmittee tor the Protection of Democratic Rights while petitioner No. 12 is a journalist.

The case of the petitioners in the Kamraj Nagar group of cases is that there are over 500 hutments in this particular basti which was built in about 1960 by persons who were employed by a Construction company engaged in laying water pipes along the Western Express Highway. The residents of Kamraj Nagar are municipal employees, factory or hotel workers, construction supervisors and so on. The residents of the Tulsi Pipe Road hutments claim that they have been living there for 10 to 15 years and that, they are engaged in various small trades. On hearing about the Chief Minister's announcement, they filed a writ petition in the high Court of Bombay for an order of injunction restraining the officers of the State Government and the Bombay Municipal Corporation from implementing the directive of the Chief Minister. The High Court granted an ad-interim injunction to be in force until July 21, 1981. On that date, respondents agreed that the huts will not be demolished until October 15, 1981. However, it is alleged, on July 23, 1981, the petitioners were huddled into State Transport buses for being deported out of Bombay. Two infants were born during the deportation but that was set off by the death of two others.

The decision of the respondents to demolish the huts is challenged by the petitioners on the ground that it is violative of Articles 19 and 21 of the Constitution. The petitioners also ask for a declaration that the provisions of sections 312, 313 and 314 of the Bombay Municipal Corporation Act, 1888 are invalid as violating Articles 14, 19 and 21 of the Constitution. The reliefs asked for in the two groups of writ petitions are F that the respondents should be directed to withdraw the decision to demolish the pavement dwellings and the slum hutments and, where they are already demolished, to restore possession of the sites to the former occupants. ...

We will first deal with the preliminary objection raised by. Mr. K.K.Singhvi, who appears on behalf of the Bombay Municipal Corporation, that the petitioners are estopped from contending that their huts cannot be demolished by reason of the fundamental rights claimed by them. It appears that a writ petition, No. 986 of 1981, was filed on the Original Side of the Bombay High Court by and on behalf of the pavement dwellers claiming reliefs similar to those claimed in the instant batch of writ petitions. A learned Single Judge granted an ad-interim injunction restraining the repondents from demolishing the huts and from evicting the pavement dwellers. When the petition came up for hearing on July 27, 1981, counsel for the petitioners made a statement in answer to a query from the court, that no fundamental right could be claimed to put up dwellings on foot-paths or public roads-Upon this statement, respondents agreed not to demolish until October 15, 1981, huts which were constructed on the pavements or public roads prior to July 23,1981. On August 4, 1981, a written undertaking was given by the petitioners agreeing, inter alia, to ; vacate the huts on or before October 15, 1981 and not to obstruct the public authorities from


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demolishing them. Counsel appearing for the State of Maharashtra responded to the petitioners undertaking by giving an undertaking on behalf of the State Government that, until October 15, 1981, no pavement dweller will be removed out of the city against his wish. On the basis of these undertakings, the learned Judge disposed of the writ petition without passing any further orders. The contention of the Bombay Municipal Corporation is that since the pavement dwellers had conceded in the High Court that, they did not claim any fundamental right to put up huts on pavements or public roads and since they had given an undertaking to the High Court that they will not obstruct the demolition of the huts after October 15, 1981 they are estopped from contending in this Court that the huts constructed by them on the pavements cannot be demolished because of their right to livelihood, which is comprehended within the fundamental right to life guaranteed by Article 21 of the Constitution.

It is not possible to accept the contention that the petitioners are estopped from setting up their fundamental rights as a defence to the demolition of the huts put up by them on pavements, or parts of public roads. There can be no estoppel against the Constitution. The Constitution is not only the paramount law of the land but, it is the source and substanace of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel is based on the -principle that consistency in word and action imparts certainty and honesty to human affairs. If a person makes a representation to another, on the faith of which the latter acts,to his prejudice, the former cannot resile from the representation made by him. He must make it good. This principle can have no application to representations made regarding the assertion or enforcement of fundamental rights. For example, the concession made by a person that he does not possess and would not exercise his right to free speech and expression or the right to move freely throughout the territory of India cannot deprive him of those constitutional rights, any more than a concession that a person has no right of personal liberty can justify his detention contrary to the terms of Article 22 of the Constitution. Fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and enforced by them, if those rights are violated. But, the high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger Interests of the community. The Preamble of the Constitution says that India is a democratic Republic. It is in order to fulfil the promise of the Preamble that fundamental rights are conferred by the Constitution, some on citizens like those guaranteed by Articles 15,16,19,21 and 29, and some on citizens |and non-citizens alike, like those guaranteed by Articles 14,21,22 and 25 of the Constitution. No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all-powerful state could easily tempt an individual to forego his precious personal freedoms on promise of transitory, immediate benefits. Therefore, notwithstanding the fact that the petitioners had conceded in the Bombay High Court that they have no fundamental right to construct hutments on pavements and that they will not object to their demolition after October 15, 1981, they are entitled to assert that any such action on the part of public authorities will be in violation of their fundamental rights. How far the argument regarding the existence and scope of the right claimed by the petitioners is well founded is another matter. But, the argument has to be examined despite the concession.

The plea of estoppel is closely connected with the plea of waiver, the object of" both being to ensure bona fides in day-today transactions. In Bashesnar Nath v. The Commissioner of Income Tax Delhi, [1959j Supp. 1 S.C.R. 528 a Constitution Bench .of. this Court considered the question whether the fundamental rights conferred by the Constitution can be waived. Two members of the Bench Das C.J. and Kapoor J.) held, that there can be no waiver of the fundamental right founded on Article 14 of the Constitution. Two others (M.h.Bhagwati and Subba Rao.JJ.; held that not only could there be no waiver of the right conferred by Article 14, but there could be no waiver of any other fundamental right guaranteed by Part 111 cf the Constitution. The Constitution makes no distinction, according to the learned Judges, between


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fundamental rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy.

We must, therefore, reject the preliminary objection and proceed to consider the validity of the petitioners' contentions on merits.

The scope of the jurisdiction of this Court to deal with writ petitions under Article 32 of the Constitution was examined by a special Bench of this Court in Smt. Ujjam Bai v. State of Uttar Pradesh. [1963] 1 S.C.R. 778. That decision would show that, in three classes of cases, the question of enforcement of the fundamental rights would arise, namely, (1) where action is taken under a statute which is ultra vires the Constitution ; (2) where the statute is intra vires but the action taken is without jurisdiction; and (3) an authority under an obligation to act judicially passes an order in violation of the principles of natural justice. These categories are, of course, not exhaustive. In Naresh Shi-tdhar MLrajkar v. State of Maharashtra, [1966] 3 S.C.R. 744-770, a Special Bench of nine learned Judges of this Court held that, where the action taken against a "Citizen is procedurally ultra vires, the aggrieved party can move this Court under Article 32. The contention of the petitioners is that -the procedure prescribed by section 314 of the B.M.C. Act being arbitrary and unfair, it is not "procedure established by law" within the meaning of Article 21 and, therefore, they cannot be deprived of their fundamental right to life by resorting to that procedure. The petitions are clearly maintainable under Article.32 of the Constitution.

As we have stated while summing up the petitioners' case, the-main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to ! big cities. They migrate because they have no means of livelihood in the villages. The motive force which people their desertion of their hearths and homes in the villages that struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas J. in Baksey that the right to work is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field,J. in Munn v. Illinois, (1877) 94 U.S. 113, means something more than mere animal . existence and the inhibition against the deprivation of life extends to all' those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court In Kharak Singh v. The State of U.P., [1964J 1 S.C.R. 332.

Article 39(a) of the Constitution, which is a Directive Prinicple of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the


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right to an adequate means of livelihood. Article 41, which is another Directive Principle, provides, inter alia, that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though not enforceable by any court, are nevertheless fundamental in the governance of the country. The Principles contained in Articles 39 (a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21.

Learned counsel for the respondents placed strong reliance on a decision of this Court in In Re: Sant Bam, [1960] 3 S.C.R. E 499, in support of their contention that the right to life guaranteed by Article 21 does not include the right to livelihood. Rule 24 of the Supreme Court Rules-empowers the Registrar to publish lists of persons who are proved to be habitually acting as touts. The Registrar issued a notice to the appellant and one other person to show cause why their names should not be , included in the list of touts. That notice was challenged by the appellant on the ground, inter alia, that it contravenes Article 21 of the Constitution since, by the inclusion of his name in the list of touts, he was deprived of his right to livelihood, which is included in the right to life. It was held by a Constitution . Bench of this Court that the language of Article 21 cannot be pressed in aid of the argument that the word 'life' in Article 21 includes 'livelihood1 'also. This decision Is distinguishable because, under the. Constitution, no person can claim the right to . livelihood by the pursuit of an opprobrious occupation or a nefarious trade or business, like toutism, gambling or living on the gains of prostitution. The petitioners before us do not claim the right to dwell on pavements or In slums for the purpose of pursuing any activity which is illegal, immoral or contrary to public interest. Many of them pursue occupations which are humble but honourable.

Turning to the factual situation, how far is it true to say that if the petitioners are evicted from their slum and pavement dwellings, they will be deprived of their means of livelihood? It is impossible, in the very nature of things, together reliable data on this subject in regard to each individual petitioner and, none has been furnished to us in that form. That the eviction of a person from a pavement or slum will inevitably lead to the deprivation of his means of livelihood, is a proposition which does not have to be established in each individual case. That Is an inference which can be drawn from acceptable data. Issues of general public Importance, which affect the lives of large sections of the society, defy a just determination if their consideration is limited to the evidence pertaining to specific Individuals. In the resolution of such issues, there are no symbolic samples which can effectively project a true picture of the grim realities of life. The writ petitions before us undoubtedly involve a question relating to dwelling houses but, they cannot be equated with a suit for the possession of a house by one private person against another. In a case of the latter kind, evidence has to be led to establish the cause of action and justify the claim. In a matter like the one before us, in which the future of half of the city's population is at stake, the Court must consult authentic empirical data compiled by agencies, official and non-official. It is by that process that the core of the problem can be reached and a satisfactory solution found. It would be unrealistic on our part to reject the petitions on the ground that the petitioners have not adduced evidence to show that they will be rendered jobless if they are evicted from the slums and pavements. Commonsense, which is a cluster of life's experiences, is often more dependable than the rival facts presented by warring litigants.

It is clear from the various expert studies to which we have referred while setting out the substance of the pleadings that, one of the main reasons of the emergence and growth of ' squatter-settlements in big Metropolitan cities like Bombay, is the availability of job opportunities which are lacking in the .rural sector. The undisputed fact that even after eviction, the squaters return to the cities affords proof of that position. The Planning Commission's publication, 'The Report of the Expert Group of Programmes for the


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Alleviation of Poverty (1982) shows that half of the population in India lives below the poverty line, a large part of which lives in villages. A publication of the Government of Maharashtra, 'Budget and the New 20 Point Socio-Economic Prpgramme shows that about 45 lakhs of families in rural areas live below the poverty line and that, the average agricultrual holding of a farmer, which is 0.4 hectares, is hardly enough to sustain him and his comparatively large family. The landless labourers, who constitute the bulk of the village population, are deeply imbedded in the mire of poverty. It is due to these economic pressures that the rural population is forced to migrate to urban areas in search of employment. The affluent and the not-so-affluent are alike In search of domestic servants. Indsutrial and Business Houses pay a fair wage to trie skilled workman that a villager becomes in course of time. Having found a job, even if it means washing the pots and pans, the migrant sticks to the big city. If driven out, he returns in quest of another job. The cost of public sector housing is beyond his modest means and the less we refer to the deals of private builders the better for all, excluding none. Added to these factors is the stark reality of growing insecurity in villages on account of the tyranny of parochialism and casteism. The announcement made by the Maharashtra Chief Minister regarding the deportation of willing pavement dwellers afford some indication that they are migrants from the interior areas, within and outside Maharashtra. It is estimated that about 200 to 300 people enter Bombay every day in search of employment. These facts constitute empirical evidence to justify the conclusion that-persons in the position of petitioners live in slums and on pavements because they have small jobs to nurse in the city and there is no where else to live. Evidently, they choose a pavement or a slum in the vicinity of their place of work, the time otherwise taken in commuting and its cost being, forbidding for their slender means. To loss the pavement or the slum is to lose the job. The conclusion, therefore, in terms of the constitutional phraseology is that the eviction of the petitioners will lead to deprivation of their livelihood and consequently to the deprivation of life.

Two conclusions emerge from this discussion: one, that the right to life which is conferred by Article 21 includes the right to livelihood and two, that it is established that if the petitioners, are evicted from their dwellings, they will be deprived of their livelihood. But the Constitution does not put an absolute embargo on the deprivation of life or personal liberty, by Article 21, such deprivation has to be according to procedure established by law. In the instant case, the law which allows the deprivation of the right conferred by Article 21 is the Bombay Municipal Corporation Act, 1888, the relevant provisions of which are contained in Sections 312(1),313(l)(a) and 314. These sections which occur in Chapter XI entitled Regulation of Streets' read thus :

ASection 312- Prohibition of structures of fixtures which cause obstruction in streets.

(1) No person shall, except with the permission of the Commissioner under section 310 or 317 arect or set up any wall, fence, rail, post, step, booth or other structure or fixture in or upon any street or upon or over any open channel, drain well or tank in any street so as to form an obstruction to, or an encroachment upon, or a projection over, or to occupy, any portion or such street, channel, drain, well or tank".

Section 313 - Prohibition of deposit, etc.,of things in streets.

(1) No person shall, except with the permission of the Commissioner, - (a) place or deposit upon any street or upon any open channel drain or well in any streets (or in any public place) any stall,chair,bench,box,ladder,bale or other thing so as to form an obstruction thereto or encroachment thereon."

Section 314 - Power to remove without notice anything erected deposited or hawked in contravention of Section 312, 313 or 313 A.

The Commissioner may, without notice, cause to be removed - (a) any wall,, fence, rail, post, step-, booth or other structure or fixture which shall be erected or set up in or any street, or upon or over any open channel, drain, well or tank contrary to the provisions of subsection (1) of section 312, after the same comes into force in the city or in the suburbs, after the date of the coming into force of the Bombay


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Municipal (Extension of Limits) Act, 1950 or in the extended suburbs after the date of the coming into force of the Bombay Municipal Further Extension of Limits and Schedule BBA (Amendment) Act, 1956;

(b) any stall, chair, bench, box, ladder, bale, board or shelf, or any other thing whatever placed, deposited, projected, attached, or suspended in, upon, from or to any place in contravention of sub-section (1) of section 313;

(c) any article whatsoever hawked or exposed for sale in any public place or in any public street in contravention of the provisions of section 313A and any vehicle, package, box, board, shelf or any other thing in or on which such article is placed or kept for the purpose of sale."

By section 3(w),"street" includes a causeway, footway, passage etc., over which the public have a right of passage or access.

These provisions, which are clear and specific, empower the Municipal Commissioner to cause to be removed encroachments on footpaths or pavements over which the public have a right of passage or access. It is undeniable that, in these cases, wherever constructions have been put up on the pavements, the public have a right of passage or access over those pavements. The argument: of the petitioners is that the procedure prescribed by section 314 for the removal of, encroachments from pavements is arbitrary and unreasonable since, not only does it not provide for the giving of a notice before the removal of an encorahcment but, it provides expressly that the Municipal Commissioner may cause the encroachment to be removed "without notice". (…)

Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right, in this case the right to life, must confirm to the norms of justice and fairplay. Procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it. Any action taken by a public authority which is invested with statutory powers has, therefore, to be tested by the application of two standards: The action must be within the scope of the authority conferred by law and secondly, it must be reasonable. If any action, within the scope of the authority conferred by law, is found to be unreasonable. it must that the procedure established by law under which that action is taken is itself unreasonable. The substance of the law cannot be divorced from the procedure which it prescribe for, how reasonable the law is, depends upon how fair is the procedure prescribed by it, Sir Raymond Evershad says that, "from the point of view of the ordinary citizen, it is the procedure that will most strongly weigh with him. He will tend to form his judgment of the excellence or otherwise of the legal system from his personal knowledge and experience in seeing the legal machine at work", ['The influence of Remedies on Rights (Current Legal Problems 1953, Volume 6.)]. Therefore,"He that takes the procedural sword shall perish with the sword."[Per Frankfurter J. in Viteralli v. Seton 3 L.Ed. (2nd Series) 1012]

Justice K.K.Mathew points out in his article on "The welfare State, Rule of Law and Natural Justice1, which is to be found in his book 'Democracy, equality and Freedom', that there is "substantial agreement in juristic thought that the great purpose of the rule of law notion is the protection of the indi-viduai-against arbitrary exercise of power wherever it is found". Adopting that femulation, Bhagwati J., speaking for the Court, observed in kamana Dayaram, Shetty v. The International Airport Authority of India, [1979] 3 S.C.R. 1014,1032 that it is "unthinkable that in a democracy governed by the rule of law, the executive. Government or any of its officers should possess arbitrary power over the interest of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement".

Having given our anxious and solicitous consideration to this question, we are of the opinion that the procedure prescribed by Section 314 of the Bombay Municipal Corporation Act for removal of encroachments on the footpaths or pavements over which the public has the right of passage or access,


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cannot be regarded as unreasonable, unfair or unjust. There is no static measure of reasonableness which can .be applied to all situations alike. Indeed, the question " is this procedure reasonable.'" implies and postulates the inquiry as to whether the procedure prescribed is reasonable in the circumstances of the case, In Francis Coralie Mullin, [19ol] 2 S.C.R. 516, Bhagwati, J., Said: "... it is for the Court to decide in exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is reasonable, fair and just or it is otherwise." (emphasis supplied, page 524).

In the first place, footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets. The main reason for laying out pavements is to ensure that the pedestrains are able to go about their daily affairs with a reasonable measure of safety and security. That facility, which has matured into a right of the pedestrains, cannot be set at naught by allowing encroachments to be made on the pavements. There is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrains to make use of the pavements for passing and repassing, are competing claims and that, the former should 'be preferred to the latter. No one has the right to make., use of a public property for a private purpose without the requisite authorisation and, therefore, it is erroneous to contend that the pavement dwellers have the right to encroach upon pavements by constructing dwellings thereon. Public streets, of which pavements form a part, are primarily dedicated for the purpose of passage and, even the pedestrains have but the limited right of using pavements for the purpose of passing' and repassing. So long as a person does not transgress the limited purpose for which pavements are made, his use thereof is legitimate and lawful. But, if a person puts any public property to a use for which it is not intended and is not authorised so to use it, he becomes a trespasser. The common example which is cited in some of the English cases (see, for example, Hlrfcman v. Maisey, [1900] 1 Q.B. 752, is that if a person, while using a highway for passage, sits down for a time to rest himself by the side of the road, he does not commit a trespass. But, if a person puts up a dwelling on the pavement, whatever may be the economic compulsions behind such an act, his user of the pavement would become unauthorised. As stated in Hickman, it is not easy to draw an exact line between the legitimate user of a highway as a highway and the user which goes beyond the right conferred upon the public by its dedication. But, as in many other cases, it is not difficult to put cases well on one side of the line. Putting up a dwelling on the pavement is a case which is clearly on one side of the line showing that it is an act of trespass. Section 61 of the Bombay Municipal Corporation Act lays down the obligatory duties of the Corporation, under clause (d) of which, it is its duty to take measures for abatement of all nuisances. The existence of dwellings on the pavements is unquestionably a source of nuisance to the public, at least for the reason that they are denied the use of pavements for passing and repassing. They are compelled, by reason of the occupation of pavements by dwellers, to use highways and public streets as passages. The affidavit filed on behalf of the Corporation shows that the fall-out of -pedestrians in large numbers on highways and streets constitutes a grave traffic hazzard. Surely, pedestrians deserve consideration in the matter of their physical safety, which cannot be sacrificed in order to accommodate persons who use public properties for a private purpose, unauthorizedly. Under clause (c) of C section 61 of the B.M.C. Act, the Corporation is under an obligation to remove obstructions upon public streets another public places. The counter-affidavit of the Corporation shows that the existence of hutments on pavements is a serious impediment in repairing the roads, pavements, drains and streets. Section 63(k), which is discretionary, empowers the Corporation to take measures to promote public safety, health or convenience not. specifically provided otherwise. Since it is not possible to provide any public conveniences to the pavement dwellers on or near the pavements, they answer the nature' s call on the pavements or on the streets adjoining them. These facts provide the background to the provision for removal of encroachments on pavements and footpaths.

The challenge of the petitioners to the validity of the relevant provisions of the Bombay Municipal Corporation Act is directed principally at the procedure prescribed by section 314 of that Act, which


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provides by clause (a) that the Commissioner may, without notice, take steps for the removal of encroachments in or upon ay street, channel, drain, etc. By reason of section 3(w) 'street' includes a causeway, footway or passage. In order to decide whether the procedure prescribed by section 314 is fair and reasonable, we must first determine the true meaning of that section because, the meaning of the law determines its legality. If a law is found to direct the doing of an act which is forbidden by the Constitution or to compel, in the performance of an act, the adoption of a procedure which is impermissible under the Constitution, it would have to be struck down. Considered In its proper perspective, section 314 is in the nature of an enabling provision and not of a compulsive character. It enables the Commissioner, in appropriate cases, to dispense with previous notice to persons who are likely to be affected by the proposed action. It does not require and, cannot be read to mean that, in total disregard of the relevant circumstances pertaining to a given situation, the Commissioner must cause the removal of an encroachment without issuing previous notice. The primary rule of construction is that the language of the law must receive its plain and natural meaning. What section 314 provides is that the Commissioner may, without notice, cause an encroachment to be removed. It does not command that the Commissioner shall, without notice, cause an encroachment to be removed. Putting it differently, section 314 confers on the Commissioner the discretion to cause an encroachment to be removed with or without notice. That discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable. We must lean in favour of this interpretation because it helps sustain the validity of the law. Reading section 314 as containing a command not to issue notice before the removal of an encroachment will make the law invalid.

It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature Intended that the power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem rule (>Hear the other side=) could be presumed to have been intended. Section 314 is so designed as to exclude the principles of natural justice by way of exemption and not as a general rule. There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action oust be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence.

It was urged by Shri K.K.Singhvi on behalf of the Municipal Corporation that the Legislature may well have intended that no notice need be given in any case whatsoever because, no useful Purpose could be served-by issuing a notice as to why an encroachment on a public property should not be removed. We have indicated above that far from so intending, the Legislature has left it to the discretion of the Commissioner whether or not to give notice, a discretion which has to be exercised reasonably. Counsel attempted to demonstrate the practical futility of issuing the show cause notice by pointing out firstly, that the only answer which a pavement dweller, for example, can make to such a notice is that he is compelled to live on the pavement ' because he has no other place to go to and secondly, that it is hardly likely that in pursuance of such a notice, pavement dwellers or slum dwellers would ask for time to vacate since, on their own showing, they are compelled to occupy some pavement or slum or the other if they are evicted. It may be true to say that, in the generality of cases, persons who have committed encroachments on pavements or on other public properties may not have an effective answer to give. It is a notorious fact of contemporary life in metropolitan cities, that no person in his senses would opt to live on a pavement or in a slum, if any other choice, were available to him. Anyone who cares to have even a fleeting glance at the pavement or slum dwellings will see that they are the very hell on earth. But, though this is so, the contention of the Corporation that no notice need be given because, there can be no effective answer to it, betrays a mis-under standing of the rule of hearing, which is an important element of the principles of


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natural justice. The decision to dispense with notice cannot be founded upon a presumed impregnability of the proposed action. For example, in the common run of cases, a person may contend in answer to a notice under section 314 that (i) there was, in fact, no encroachment on any public road, footpath or pavement, or (ii) the encroachment was so slight and negligible as to cause no nuisance or incovenience to other members of the public, or (iii) time may be granted for removal of the encroachment in view of humane considerations arising out of personal, seasonal or other factors. It would not be right to assume that the Commissioner would reject these or similar other considerations without a careful application of mind. Human compassion must soften the rough edges of justice in all situations. The eviction of the pavement or slum dweller not only means his removal from the house but the destruction of the house itself. And the destruction of a dwelling house is the end of all that one holds dear in life. Humbler the dwelling, greater the suffering and more intense the sense of loss.

The proposition that notice need not be given of a proposed action because, there can possibly be no answer to it, is contrary to the well-recognized understanding of the real import of the rule of hearing. That proposition overlooks that justice must not only be done but must manifestly be seen to be done and confuses one for the other. The appearance of injustice is the denial of justice. It is the dialogue with the person likely to be affected by the proposed action which meets the requirement that justice must also be seen to be done. Procedural safeguards have their historical origins in the notion that conditions of personal freedom can be preserved only when there is some institutional check on arbitrary action on the part of public authorities. (Kadish, "Methodology and Criteria in Due Process Adjudication. A Survey and Criticism," 66 Yale L.J. 319,340 [1957J). The right to be heard has two facets, intrinsic and instrumental. The intrinsic value of that right consists in the opportunity which it gives to individuals or groups, against whom decisions taken . by public authorities operate, to participate in the processes -by which those decisions are made, an opportunity that expresses their dignity as persons. (Golberg v. Kelly, 397 U.S. 254, 264-65 [1970] right of the poor to participate in public processes).

"Whatever its outcome, such a hearing represents a valued human interaction in which the affected person experience at least the satisfaction of participating in the decision that vitally concerns her, and perhaps the separate satisfaction of receiving an explanation of why the decision is being made in a certain way. Both the right to be heard from, and the right to be told why, are analytically distinct from the right to secure a different outcome; these rights to interchange express the elementary idea that to be a person, rather than a thing, is at least to be consulted about what is done with one. Justice Frankfurter captured part of this sense of procedural justice when he wrote that the "Validity and moral authority of a conclusion largely depend on the mode by which it was reached. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generation the feeling, so important to a,-popular government, that justice has been done". Joint Anti-fascist Refugee Committee v. Me Grath, 341, U-S. 123, 171-172 (1951). At stake here is not Just the much-acclaimed appearance of justice but, from a perspective that treats process as intrinsically significant, the very essence of justice", (See "American Constitutional Law" by Laurence H. Tribe, Professor of Law, Harvard University (Ed. 1978, page 503).

The instrumental facet of the right of hearing consists in the means which it affords of assuring that the public rules of conduct, which result in benefits and prejudices alike, are in fact accurately and consistently followed.

"It ensures that a challanged action accurately reflects the substantive rules applicable to such action -; its point is less to assure participation than to use participation to assure accuracy."

Any discussion of this topic would be incompelete without "-reference" to an important decision of this Court in S.L. Kapoor v. Jagmoban, [1981] 1 S.C.R. 746,766. In that case, the superession of the New Delhi Municipal Committee was challenged on the "ground that it was in violation of the principles of -natural justice since, no show cause notice was issued before the order of superession was passed. Linked with that question was; the question whether the failure to observe the principles of natural justice matters


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at all, if such observance would have "^made no -difference, the admitted or indisputable facts speaking for themselves. After referring to the decisions in Ridge v. Baldwin … and to an interesting discussion of the subject in Jackson's Natural Justice (1980 Edn.) the Court, speaking through one of us, Chinnappa Reddy, J. Said :"In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is . itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice Is unnecessary. It will comes from a person who has denied justice that the person who has been denied justice is not prejudiced."

These observations sum up the true legal position regarding the purport and implications of the right of hearing.

The jurisprudence requiring hearing to be given to those who have encroached on pavements and other public properties evoked a sharp response from the respondents counsel. " Hearing to be given to trespassers who have encroached on public properties? To persons who commit crimes?", they seemed to ask in wonderment. There is no doubt that the petitioners are using pavements and other public properties for an unauthorised purpose. But, their intention or object in doing so is not to "commit an offence or intimidate, insult or annoy any person", which is the gist of the offence of >Criminal trespass= under section 441 of the Penal Code. They manage to find a habitat in places which are mostly filthy or marshy, out of sheer helplessness. It is not as if they have a free choice to exercise as to whether to commit an encroachment and if so, where. The encroachments committed by these persons are involuntary acts in the sense that those acts are compelled by inevitable circumstances and are not guided by choice. Trespass is a tort. But, even the law of Torts requires that though a trespasser may be evicted forcibly, the force used must be no greater than what is reasonable and appropriate Co the occasion and, what is even more important, the trespasser should be asked and given a reasom.ble opportunity to depart before force is used to expel him. (See

Kamaswamy lyer's 'Law of Torts' 7th Ed. by Justice and Mrs. S.K.Desal, (page 98, para 41).. Besides, under the Law of Torts, necessity is a plausible defence, which enables a person to escape liability on the ground that the acts complained of are necessary to prevent greater damage, inter alia, to himself. "Here, as elsewhere in the law of torts, a balance has to be struck between competing sets of values ........" (See Salmood and Heuston, 'Law of Torts', 18th Ed. (Chapter 21, page 463, Article 185 - 'Necessity').

The charge made by the State Government in its affidavit that slum and pavement dwellers exhibit especial criminal tendencies is unfounded. According to Dr. P.K.Muttagi, Head of the unit for urban studies of the Tata Institute of Social Sciences, Bombay, the surveys carried out in 1972, 1977,1979 and 1981 show that many families which have chosen the Bombay footpaths just for survival, have been living there for several years and that 53 ' per cent of the pavement dwellers are self-employed as hawkers in '.vegetables, flowers, ice-cream, toys, balloons, buttons, needles '.and so on. Over 38 per cent are in the wage-employed category as casual labourers, construction workers, domestic servants and j,Juggage carriers. Only 1.7 per cent of the total number is gener-unemployed. Dr. Muttagi found among the pavement dwellers a graduate of Marathwada University and Muslim Post of some standing. "These people have merged with the landscape, become part of it, like the chameleon", though their contact with their more | fortunate neighbours who live in adjoining high-rise buildings is 5 'casual. The most important finding of Dr.Muttagi is that the \ pavement dwellers are a peaceful lot, "for, they stand to lose 5 their shelter on the pavement if they disturb the affluent or indulge in ' fights with their fellow dwellers". The charge of the State Government, besides being contrary to these scientific findings, is born of prejudice against the poor and the destitute. Affluent people living in sky-scrapers also commit crimes varying from living on the gains of prostitution and defrauding the public treasury to smuggling. But, they get away. The pavement dwellers, when caught, defend themselves by asking, "who does not commit crimes in this city ? "As observed by Anand Chakravarti," The separation between existential realities and the rhetoric of socialism indulged in by the wielders of power in the government cannot be more profound." 'Some


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aspects of inequality in rural India i. A Sociological Perspective published in >Quality and Inequality, Theory and Practice= edited by Andre T Betetlle, 1983.

Normally, we would have directed the Municipal Commissioner to afford an opportunity to the petitioners to show why the encroachments committed by them on pavements or footpaths should not be removed. But, the opportunity which was denied by the Commissioner was granted by us in an ample measure, both sides having made their contentions elaborately on acts as well as on law. Having considered those contentions, we are of the opinion that the Commissioner was justified in directing the removal of the encroachments committed by the petitioners on pavements, footpaths or accessory roads. As observed in S.L. Kapoor, (Supra) "where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not Issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs". Indeed, in that case, the Court did not set aside the order of supersession in view of the factual position stated by it. But, though we do not see any justification for asking the Commissioner to hear the petitioners, we propose to pass an order which, we believe, he would or should have passed, had he granted a hearing to them and heard what we did. We are of the opinion that the petitioners should not be evicted from the pavements, footpaths or accessory roads until one month after the conclusion of the current monsoon season, that is to say, until October 31, 1985. In the meanwhile, as explained later, steps may be taken to offer alternative pitches to the pavement dwellers who were or who happened to be censused in 1976. The offer of alternative pitches to such pavement dwellers should be made good in the spirit in which it was made, though we do not propose to make it a condition precedent to the removal of the encroachments committed by them.

Insofar as the Kamraj Nagar Basti is concerned, there are over 400 hutments therein. The affidavit of the Municipal Commissioner, Shri D.M.Sukhthankar, shows that the Basti was constructed on an accessory road, leading to the highway. It is also clear from that affidavit that the hutments were never regularised and no registration numbers were assigned to them by the Road Development Department. Since the Basti is situated on a part of the road leading to the Express Highway, serious traffic hazards arise on account of the straying of the Basti children onto the Express Highway, on which there is heavy vehicular traffic. The same- criterion would apply to the Kamraj Nagar Basti as would apply to the dwellings constructed unauthorisedly on other, roads and pavements in the city.

The affidavit ot Shri Arvind V.Gokak, Administrator of the Maharashtra Housing and Areas Development Authority, Bombay, shows that the State Government had taken a decision to compile a list of slums which were required to be removed in public interest and to allocate, after a spot inspection, 500 acres of vacant land in or near the Bombay Suburban District for resettlement of hutment dwellers removed from the slums. A census was accordingly carried out on January 4, 1976 to enumerate the slum dwellers spread over about 850 colonies all over Bombay. About 67% of the hutment dwellers produced photographs of the heads of their families, on the basis of which the hutments were numbered arid their occupants were given identity cards. Shri Gokak further says in hia affidavit that the Government had also decided that the slums which were in existence for a long time and which were improved and developed, would not normally be demolished unless the land was required for a public purposes. In the event that the land was so required, the policy of the State Government was to provide alternate accommodation to the slum dwellers who were censused and possessed identity cards. The Ciruclar of the State Government dated February 4, 1976 (No. SIS/176/D-41.) bears out this position. In the enumeration of the hutment dwellers, some persons occupying pavements also happened to be given census cards. The Government decided to allot pitches to such persons at a place near Malavani. These assurance held forth by the Government must be made good. In other words despite the finding recorded by us that the provision contained in section 314 of the B.M.C. Act is valid, pavement dwellers to whom census cards were given in 1976 must be given alternate pitches at Malavani though not as a condition precedent to the removal of encroachments committed by them. Secondly, slum dwellers who were censused and were given identity cards must be provided with alternate accommodation before they are evicted. "There is a controversy between the


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petitioners and the State Government as to the extent of vacant land which is available for " resettlement of the inhabitants of pavements and slums. Whatever that-may be , the highest priority must be accorded by the State Government to the resettlement of these unfortunate persons by alloting to them such land as the Government finds to be conveniently available. The Maharashtra Employment Guarantee Act, .1977, the Employment Guarantee Scheme, the 'New Twenty Point Socio-Economic Programme, 1982', the 'Affordable Low Income """Shelter Programme in Bombay Metropolitan Region' and the Programme of House Building for the economically weaker sections' must not .remain a dead letter as such schemes and programmes often lo. Not only that, but more and more such programmes must be initiated if the theory of equal protection of laws has to take its rightful place in the struggle for equality. In these matters, the demand is not so much for less governmental interference as for positive governmental action to provide equal treatment to neglected segments of society. The profound rhetoric of socialism must be translated into practice for, the problems which confront the State are problems of human destiny.

During the course of arguments, an affidavit was filed by Shri S.K.Jahaglrdar, Under Secretary in the Department of Housing, Government of Maharashtra, setting out the various housing schemes which are under the consideration of the State Government. The affidavit contains useful information on various aspects relating to slum and pavement dwellers. The census of 1976 which is referred to in that affidavit shows that 28.18 lakhs of people were living in 6,27.404 households spread over 1680 slum pockets. The earning of 80 per cent of the slum house holds did not exceed Rs.600 per month. The State Government has a proposal to undertake 'Low Income Scheme Shelter Programme' with the aid of the World Bank. Under the Scheme, 85,000 small plots for construction of houses would become available, out of which 40,000 would be in Greater Bombay, 25,00 in the Thane-Kalyan area and 20,000 in the New Bombay region. The State Government is also proposing to undertake 'Slum Upgradation Programme(SUP)' under which basic civic amenities would be made available to the slum dwellers. We trust that these Schemes, grandiose as they appear, will be pursued faithfully and the aid obtained from the World Sank utilised systematically and effectively for achieving its purpose.

There is no short term or marginal solution to the question of squatter colonies, nor are such colonies unique to the cities of India. Every country, during its historical evolution, has faced the problem of squatter settlements and most countries of the under-developed world face this problem today. Even the highly developed affluent societies face the same problem, though with their larger resources and smaller populations, their task is far less difficult. The forcible eviction of squatters, even if they are resettled in other sites, totally disrupts the econoinicMife of the household. It has been a common experience of the -administrators and planners that when resettlement is forcibly done, squatters eventually sell their new plots and -return to their original sites near their place of employment. Therefore, 'what -is of crucial importance to the question of thinning out the squatters' colonies in metropolitan cities is to create new opportunities for employment in the rural sector and to-spread the existing job opportunities evenly in urban areas. Apart from the further misery and degradation which it involves, eviction of slum and pavement dwellers is an ineffective remedy for decongesting the cities. In a highly readable and moving account of the problems which the poor have to face, Susan George says : ('How the Other Half Dies - The Real Seasons for World Hunger1 (Polican books).

"So long as thorough going land reform, re-grouping and distribution of resources to the poorest, bottom half of the population does not take place, Third World countries can go on increasing their production until hell freezes and hunger will remain, for the production will go to those who already have plenty to the developed world or to the wealthy in the Third World itself. Poverty and hunger walk hand in hand".(Page 18).

We will close with a quotation from the same book which has a massage: "Malnourished babies, wasted mothers, emaciated corpses in the streets of Asia have definite and definable reasons for existing. Hunger may have been the human race's constant companion, and 'the poor may always be with us', but in the twentieth century, one cannot take this fatalistic view of the destiny of millions of fellow creatures. Their


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condition is not inevitable but is caused by identifiable forces within the province of rational, human control", (p. 15)

To summarise, we hold that no person has the right to encroach, by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or ear-marked for a public purpose like, for example, a garden or a playground; that the provision contained in section 314 of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case; and that, the Kamraj Nagar Basti is situated on an accessory road leading to the Western Express Highway. We have referred to the assurances given by the State Government in its pleadings here which, we repeat, must be made good. Stated briefly, pavement dwellers who were censused or who happened to be censused in 1976 should be given, though not as a condition precedent to their removal, alternate pitches at Malavani or at such other convenient place as the Government considers reasonable but not farther away in terms of distance; slum dwellers who were given identity cards and whose dwellings were numbered in the 1976 census must be given alternate sites for their reC settlement; slums which have been in existence for a long time, say for twenty years or more, and which have been improved and developed will not be removed unless the land on which they stand or the appurtenant land, is required for a public purposes, in which case, alternate sites or accommodation will be provided to them, the 'Low Income Scheme Shelter Programme" which is proposed to be undertaken with the aid of the World Bank will be pursued earnestly; and, the Slum Upgradation Programme (SUP;'under which basic amenities are to be given to slum dwellers will be implemented without delay. In order to minimise the hardship involved in any eviction, we direct that the slums, wherever situated, will not be removed until one month after the end of the current monsoon season, that is, until October 31,1985 and, thereafter, only in accordance with this judgment. If any slum is required to be removed before that date, parties may apply to this Court. Pavement dwellers, whether censused or uncensused, will not be removed until the same date viz. October 31, 1985.

The Writ Petitions will stand disposed of accordingly. There will be no order as to costs.


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VI. INTERNATIONAL MATERIALS

A. Compilation of general comments and general recommendations, 2004

GENERAL COMMENTS ADOPTED BY THE [UN] COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, HRI/GEN/1/Rev.7, 12 May 2004

General comment No. 3: The nature of States parties’ obligations (art. 2, para. 1, of the Covenant)

1. Article 2 is of particular importance to a full understanding of the Covenant and must be seen as having a dynamic relationship with all of the other provisions of the Covenant. It describes the nature of the general legal obligations undertaken by States parties to the Covenant. Those obligations include both what may be termed (following the work of the International Law Commission) obligations of conduct and obligations of result. While great emphasis has sometimes been placed on the difference between the formulations used in this provision and that contained in the equivalent article 2 of the International Covenant on Civil and Political Rights, it is not always recognized that there are also significant similarities. In particular, while the Covenant provides for progressive realization and acknowledges the constraints due to the limits of available resources, it also imposes various obligations which are of immediate effect. Of these, two are of particular importance in understanding the precise nature of States parties obligations. One of these, which is dealt with in a separate general comment, and which is to be considered by the Committee at its sixth session, is the “undertaking to guarantee” that relevant rights “will be exercised without discrimination ...”.

2. The other is the undertaking in article 2 (1) “to take steps”, which in itself, is not qualified or limited by other considerations. … While the full realization of the relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant’s entry into force for the States concerned. Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant.

3. The means which should be used in order to satisfy the obligation to take steps are stated in article 2(1) to be “all appropriate means, including particularly the adoption of legislative measures”. The Committee recognizes that in many instances legislation is highly desirable and in some cases may even be indispensable. For example, it may be difficult to combat discrimination effectively in the absence of a sound legislative foundation for the necessary measures. In fields such as health, the protection of children and mothers, and education, as well as in respect of the matters dealt with in articles 6 to 9, legislation may also be an indispensable element for many purposes.

4. The Committee notes that States parties have generally been conscientious in detailing at least some of the legislative measures that they have taken in this regard. It wishes to emphasize, however, that the adoption of legislative measures, as specifically foreseen by the Covenant, is by no means exhaustive of the obligations of States parties. Rather, the phrase “by all appropriate means” must be given its full and natural meaning. While each State party must decide for itself which means are the most appropriate under the circumstances with respect to each of the rights, the “appropriateness” of the means chosen will not always be self-evident. It is therefore desirable that States parties’ reports should indicate not only the measures that have been taken but also the basis on which they are considered to be the most “appropriate” under the circumstances. However, the ultimate determination as to whether all appropriate measures have been taken remains one for the Committee to make.

5. Among the measures which might be considered appropriate, in addition to legislation, is the provision of judicial remedies with respect to rights which may, in accordance with the national legal system, be considered justiciable. The Committee notes, for example, that the enjoyment of the rights recognized, without discrimination, will often be appropriately promoted, in part, through the provision of

INSTRUMENTOSINTERNACIONALES


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judicial or other effective remedies. Indeed, those States parties which are also parties to the International Covenant on Civil and Political Rights are already obligated (by virtue of articles 2 (paras. 1 and 3), 3 and 26) of that Covenant to ensure that any person whose rights or freedoms (including the right to equality and non-discrimination) recognized in that Covenant are violated, “shall have an effective remedy” (art. 2 (3) (a)). In addition, there are a number of other provisions in the International Covenant on Economic, Social and Cultural Rights, including articles 3, 7 (a) (i), 8, 10 (3), 13 (2) (a), (3) and (4) and 15 (3) which would seem to be capable of immediate application by judicial and other organs in many national legal systems. Any suggestion that the provisions indicated are inherently non-self-executing would seem to be difficult to sustain.

6. Where specific policies aimed directly at the realization of the rights recognized in the Covenant have been adopted in legislative form, the Committee would wish to be informed, inter alia, as to whether such laws create any right of action on behalf of individuals or groups who feel that their rights are not being fully realized. In cases where constitutional recognition has been accorded to specific economic, social and cultural rights, or where the provisions of the Covenant have been incorporated directly into national law, the Committee would wish to receive information as to the extent to which these rights are considered to be justiciable (i.e. able to be invoked before the courts). The Committee would also wish to receive specific information as to any instances in which existing constitutional provisions relating to economic, social and cultural rights have been weakened or significantly changed. …

8. The Committee notes that the undertaking “to take steps ... by all appropriate means including particularly the adoption of legislative measures” neither requires nor precludes any particular form of government or economic system being used as the vehicle for the steps in question, provided only that it is democratic and that all human rights are thereby respected. Thus, in terms of political and economic systems the Covenant is neutral and its principles cannot accurately be described as being predicated exclusively upon the need for, or the desirability of a socialist or a capitalist system, or a mixed, centrally planned, or laissez-faire economy, or upon any other particular approach. In this regard, the Committee reaffirms that the rights recognized in the Covenant are susceptible of realization within the context of a wide variety of economic and political systems, provided only that the interdependence and indivisibility of the two sets of human rights, as affirmed inter alia in the preamble to the Covenant, is recognized and reflected in the system in question. The Committee also notes the relevance in this regard of other human rights and in particular the right to development.

9. The principal obligation of result reflected in article 2 (1) is to take steps “with a view to achieving progressively the full realization of the rights recognized” in the Covenant. The term “progressive realization” is often used to describe the intent of this phrase. The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time. In this sense the obligation differs significantly from that contained in article 2 of the International Covenant on Civil and Political Rights which embodies an immediate obligation to respect and ensure all of the relevant rights. Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d’être, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.

10. On the basis of the extensive experience gained by the Committee, as well as by the body that preceded it, over a period of more than a decade of examining States parties’ reports the Committee is of


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the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être. By the same token, it must be noted that any assessment as to whether a State has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned. Article 2 (1) obligates each State party to take the necessary steps “to the maximum of its available resources”. In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.

11. The Committee wishes to emphasize, however, that even where the available resources are demonstrably inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances. Moreover, the obligations to monitor the extent of the realization, or more especially of the non-realization, of economic, social and cultural rights, and to devise strategies and programmes for their promotion, are not in any way eliminated as a result of resource constraints. The Committee has already dealt with these issues in its general comment No. 1 (1989).

12. Similarly, the Committee underlines the fact that even in times of severe resources constraints whether caused by a process of adjustment, of economic recession, or by other factors the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes. In support of this approach the Committee takes note of the analysis prepared by UNICEF entitled “Adjustment with a human face: protecting the vulnerable and promoting growth, the analysis by UNDP in its Human Development Report 1990 and the analysis by the World Bank in the World Development Report 1990.

13. A final element of article 2 (1), to which attention must be drawn, is that the undertaking given by all States parties is “to take steps, individually and through international assistance and cooperation, especially economic and technical ...”. The Committee notes that the phrase “to the maximum of its available resources” was intended by the drafters of the Covenant to refer to both the resources existing within a State and those available from the international community through international cooperation and assistance. Moreover, the essential role of such cooperation in facilitating the full realization of the relevant rights is further underlined by the specific provisions contained in articles 11, 15, 22 and 23. With respect to article 22 the Committee has already drawn attention, in general comment No. 2 (1990), to some of the opportunities and responsibilities that exist in relation to international cooperation. Article 23 also specifically identifies “the furnishing of technical assistance” as well as other activities, as being among the means of “international action for the achievement of the rights recognized ...”.

14. The Committee wishes to emphasize that in accordance with Articles 55 and 56 of the Charter of the United Nations, with well-established principles of international law, and with the provisions of the Covenant itself, international cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States. It is particularly incumbent upon those States which are in a position to assist others in this regard. The Committee notes in particular the importance of the Declaration on the Right to Development adopted by the General Assembly in its resolution 41/128 of 4 December 1986 and the need for States parties to take full account of all of the principles recognized therein. It emphasizes that, in the absence of an active programme of international assistance and cooperation on the part of all those States that are in a position to undertake one, the full realization of economic, social and cultural rights will remain an unfulfilled aspiration in many countries. In this respect, the Committee also recalls the terms of its general comment No. 2 (1990).


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General comment No. 9: The domestic application of the Covenant

A. The duty to give effect to the Covenant in the domestic legal order

1. In its general comment No. 3 (1990) on the nature of States parties’ obligations (article 2, paragraph 1, of the Covenant) the Committee addressed issues relating to the nature and scope of States parties’ obligations. … The central obligation in relation to the Covenant is for States parties to give effect to the rights recognized therein. By requiring Governments to do so “by all appropriate means”, the Covenant adopts a broad and flexible approach which enables the particularities of the legal and administrative systems of each State, as well as other relevant considerations, to be taken into account.

2. But this flexibility coexists with the obligation upon each State party to use all the means at its disposal to give effect to the rights recognized in the Covenant. In this respect, the fundamental requirements of international human rights law must be borne in mind. Thus the Covenant norms must be recognized in appropriate ways within the domestic legal order, appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means of ensuring governmental accountability must be put in place.

3. Questions relating to the domestic application of the Covenant must be considered in the light of two principles of international law. The first, as reflected in article 27 of the Vienna Convention on the Law of Treaties, is that “[A] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. In other words, States should modify the domestic legal order as necessary in order to give effect to their treaty obligations. The second principle is reflected in article 8 of the Universal Declaration of Human Rights, according to which “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”. The International Covenant on Economic, Social and Cultural Rights contains no direct counterpart to article 2, paragraph 3 (b), of the International Covenant on Civil and Political Rights, which obligates States parties to, inter alia, “develop the possibilities of judicial remedy”. Nevertheless, a State party seeking to justify its failure to provide any domestic legal remedies for violations of economic, social and cultural rights would need to show either that such remedies are not “appropriate means” within the terms of article 2, paragraph 1, of the International Covenant on Economic, Social and Cultural Rights or that, in view of the other means used, they are unnecessary. It will be difficult to show this and the Committee considers that, in many cases, the other means used could be rendered ineffective if they are not reinforced or complemented by judicial remedies.

B. The status of the Covenant in the domestic legal order

4. In general, legally binding international human rights standards should operate directly and immediately within the domestic legal system of each State party, thereby enabling individuals to seek enforcement of their rights before national courts and tribunals. The rule requiring the exhaustion of domestic remedies reinforces the primacy of national remedies in this respect. The existence and further development of international procedures for the pursuit of individual claims is important, but such procedures are ultimately only supplementary to effective national remedies.

5. The Covenant does not stipulate the specific means by which it is to be implemented in the national legal order. And there is no provision obligating its comprehensive incorporation or requiring it to be accorded any specific type of status in national law. Although the precise method by which Covenant rights are given effect in national law is a matter for each State party to decide, the means used should be appropriate in the sense of producing results which are consistent with the full discharge of its obligations by the State party. The means chosen are also subject to review as part of the Committee’s examination of the State party’s compliance with its obligations under the Covenant.

6. An analysis of State practice with respect to the Covenant shows that States have used a variety of approaches. Some States have failed to do anything specific at all. Of those that have taken measures, some States have transformed the Covenant into domestic law by supplementing or amending existing


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legislation, without invoking the specific terms of the Covenant. Others have adopted or incorporated it into domestic law, so that its terms are retained intact and given formal validity in the national legal order. This has often been done by means of constitutional provisions according priority to the provisions of international human rights treaties over any inconsistent domestic laws. The approach of States to the Covenant depends significantly upon the approach adopted to treaties in general in the domestic legal order.

7. But whatever the preferred methodology, several principles follow from the duty to give effect to the Covenant and must therefore be respected. First, the means of implementation chosen must be adequate to ensure fulfilment of the obligations under the Covenant. The need to ensure justiciability (see paragraph 10 below) is relevant when determining the best way to give domestic legal effect to the Covenant rights. Second, account should be taken of the means which have proved to be most effective in the country concerned in ensuring the protection of other human rights. Where the means used to give effect to the Covenant on Economic, Social and Cultural Rights differ significantly from those used in relation to other human rights treaties, there should be a compelling justification for this, taking account of the fact that the formulations used in the Covenant are, to a considerable extent, comparable to those used in treaties dealing with civil and political rights.

8. Third, while the Covenant does not formally oblige States to incorporate its provisions in domestic law, such an approach is desirable. Direct incorporation avoids problems that might arise in the translation of treaty obligations into national law, and provides a basis for the direct invocation of the Covenant rights by individuals in national courts. For these reasons, the Committee strongly encourages formal adoption or incorporation of the Covenant in national law.

C. The role of legal remedies

Legal or judicial remedies?

9. The right to an effective remedy need not be interpreted as always requiring a judicial remedy. Administrative remedies will, in many cases, be adequate and those living within the jurisdiction of a State party have a legitimate expectation, based on the principle of good faith, that all administrative authorities will take account of the requirements of the Covenant in their decision-making. Any such administrative remedies should be accessible, affordable, timely and effective. An ultimate right of judicial appeal from administrative procedures of this type would also often be appropriate. By the same token, there are some obligations, such as (but by no means limited to) those concerning non-discrimination,2 in relation to which the provision of some form of judicial remedy would seem indispensable in order to satisfy the requirements of the Covenant. In other words, whenever a Covenant right cannot be made fully effective without some role for the judiciary, judicial remedies are necessary.

Justiciability

10. In relation to civil and political rights, it is generally taken for granted that judicial remedies for violations are essential. Regrettably, the contrary assumption is too often made in relation to economic, social and cultural rights. This discrepancy is not warranted either by the nature of the rights or by the relevant Covenant provisions. The Committee has already made clear that it considers many of the provisions in the Covenant to be capable of immediate implementation. Thus, in general comment No. 3 (1990) it cited, by way of example, articles 3; 7, paragraph (a) (i); 8; 10, paragraph 3; 13, paragraph 2 (a); 13, paragraph 3; 13, paragraph 4; and 15, paragraph 3. It is important in this regard to distinguish between justiciability (which refers to those matters which are appropriately resolved by the courts) and norms which are self-executing (capable of being applied by courts without further elaboration). While the general approach of each legal system needs to be taken into account, there is no Covenant right which could not, in the great majority of systems, be considered to possess at least some significant justiciable 2 Pursuant to article 2, paragraph 2, of the Covenant, States “undertake to guarantee” that the rights therein are exercised “without discrimination of any kind”.


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dimensions. It is sometimes suggested that matters involving the allocation of resources should be left to the political authorities rather than the courts. While the respective competences of the various branches of government must be respected, it is appropriate to acknowledge that courts are generally already involved in a considerable range of matters which have important resource implications. The adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent. It would also drastically curtail the capacity of the courts to protect the rights of the most vulnerable and disadvantaged groups in society.

Self-executing

11. The Covenant does not negate the possibility that the rights it contains may be considered self-executing in systems where that option is provided for. Indeed, when it was being drafted, attempts to include a specific provision in the Covenant to the effect that it be considered “non-self-executing” were strongly rejected. In most States, the determination of whether or not a treaty provision is self-executing will be a matter for the courts, not the executive or the legislature. In order to perform that function effectively, the relevant courts and tribunals must be made aware of the nature and implications of the Covenant and of the important role of judicial remedies in its implementation. Thus, for example, when Governments are involved in court proceedings, they should promote interpretations of domestic laws which give effect to their Covenant obligations. Similarly, judicial training should take full account of the justiciability of the Covenant. It is especially important to avoid any a priori assumption that the norms should be considered to be non-self-executing. In fact, many of them are stated in terms which are at least as clear and specific as those in other human rights treaties, the provisions of which are regularly deemed by courts to be self-executing.

D. The treatment of the Covenant in domestic courts

12. In the Committee’s guidelines for States’ reports, States are requested to provide information as to whether the provisions of the Covenant “can be invoked before, and directly enforced by, the Courts, other tribunals or administrative authorities”. Some States have provided such information, but greater importance should be attached to this element in future reports. In particular, the Committee requests that States parties provide details of any significant jurisprudence from their domestic courts that makes use of the provisions of the Covenant.

13. On the basis of available information, it is clear that State practice is mixed. The Committee notes that some courts have applied the provisions of the Covenant either directly or as interpretative standards. Other courts are willing to acknowledge, in principle, the relevance of the Covenant for interpreting domestic law, but in practice, the impact of the Covenant on the reasoning or outcome of cases is very limited. Still other courts have refused to give any degree of legal effect to the Covenant in cases in which individuals have sought to rely on it. There remains extensive scope for the courts in most countries to place greater reliance upon the Covenant.

14. Within the limits of the appropriate exercise of their functions of judicial review, courts should take account of Covenant rights where this is necessary to ensure that the State’s conduct is consistent with its obligations under the Covenant. Neglect by the courts of this responsibility is incompatible with the principle of the rule of law, which must always be taken to include respect for international human rights obligations.

15. It is generally accepted that domestic law should be interpreted as far as possible in a way which conforms to a State’s international legal obligations. Thus, when a domestic decision maker is faced with a choice between an interpretation of domestic law that would place the State in breach of the Covenant and one that would enable the State to comply with the Covenant, international law requires the choice of the latter. Guarantees of equality and non-discrimination should be interpreted, to the greatest extent possible, in ways which facilitate the full protection of economic, social and cultural rights.


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VII. HUNGARY AND THE RIGHT TO SOCIAL SECURITY Article 15 The Republic of Hungary shall protect the institutions of marriage and family. Article 16 The Republic of Hungary shall make special efforts to ensure a secure standard of living, instruction and education for the young, and shall protect the interests of the young. Article 17 The Republic of Hungary shall provide support for those in need through a wide range of social measures. Article 70/E para. (1) Citizens of the Republic of Hungary are entitled to social security; they are entitled to receive benefits necessary to sustain themselves in old age, sickness, disability, widowhood, orphanhood and if they become unemployed as a result of causes beyond their control”. (2) The Republic of Hungary shall implement the right to social support through the social security system and the system of social institutions.”

A. Constitutional Court Decision, 1998

DECISION 32/1998 (VI. 25.) AB, Hungarian Constitutional Court file number: 402/B/1997, published in the Official Gazette (Magyar Közlöny) MK 1998/55

(…)

III

(…) 1. The petitioner raises objections to Section 37/A para. (2) item b) of the Welfare Act on the ground of its violating the provisions of the Constitution concerning social security, as it defines the eligibility criteria for, and the amount of, regular social aid in an amount below the minimum subsistence figure. Section 37/A para. (2) item b) of the Welfare Act defines the income threshold under which, or in case having no income, a person of active age who is not employed may receive regular social aid. According to the Welfare Act, the amount of regular social aid must be determined by the local governments, providing that the minimum amount thereof reaches 70% of the prevailing minimum amount of old age pension in respect of a person of active age who is not employed and has no income or an amount supplementing his or her total income to the above level in respect of a person with any other income. The local governments may, to the debit of their own resources, establish a higher level of regular social aid. The Constitutional Court has been engaged in interpreting Article 70/E of the Constitution several times. In the framework of such interpretation, it gradually extended the definition of the criteria and requirements related to social security, the welfare benefit system and the fundamental right to social security as defined in the article in question. In its Decision 32/1991 (VI. 6.) AB, the Constitutional Court pointed out that the State is deemed to have met its obligation specified in Article 70/E by organising and operating a system of social institutions including welfare benefits. Within this, the legislature can itself determine the means whereby it wishes to achieve its social policy objectives. The obligations of the State in respect of the social security of its citizens are defined in a general manner by the provisions of Article 70/E para. (1) of the Constitution. [ABH 1991, 163] The legislature has relatively great liberty in determining the methods and degrees by which it enforces constitutionally-mandated state goals and social rights. The State has a wide margin of

HUNGRÍAHUNGRÍA


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appreciation with respect to changes, regroupings and transformations within welfare benefits depending on economic conditions. The right of the State to change is, however, not unlimited as stated by the Constitutional Court in its Decision 26/1993 (IV. 29.) AB [ABH 1993, 196 at 199-200] In its Decision 43/1995 (VI. 30.) AB, the Constitutional Court established very clearly the following: in determining which of the benefits actually enjoyed and how these benefits can be constitutionally withdrawn, social rights have a role insofar that, as a result of such withdrawal, the extent of welfare benefits as a whole may not be reduced to below a minimum level which may be required according to Article 70/E [ABH 1995, 192] In the said decision, the Constitutional Court established as a general constitutional requirement that the right to social security contained in Article 70/E of the Constitution entails the obligation of the State to secure a minimum livelihood through all of the welfare benefits necessary for the realisation of the right to human dignity. The legislature has relatively great liberty in implementing such constitutionally-mandated state goals and it may define the minimum amounts of certain benefits by reference to the percentage of other types of income (prevailing minimum amount of old age pension, minimum wage etc.). The Constitutional Court suspended its proceedings concerning Section 37/A para. (2) item b) of the Welfare Act in order to allow – by taking into account the study results expected from the organisations that had participated in the preparations of the legislation – a decision to be made on whether in the present system of welfare benefits, the minimum amount of regular social aid becoming due under the Welfare Act to a person of active age who is not employed can – together with other benefits – secure the minimum livelihood necessary for the realisation of the right to human dignity in line with the constitutional requirement specified in the holdings. (…)

B. Constitutional Court Decision, 2000

DECISION 42/2000 (XI. 8.) AB, Constitutional Court file number: 5/G/1998, ublished in the Official Gazette (Magyar Közlöny) MK 2000/109 On the basis of petitions jointly submitted by the Ombudsman for Civil Rights and the Ombudsman for the Rights of National and Ethnic Minorities seeking an interpretation of the Constitution and the establishment of an unconstitutional omission of legislative duty – with concurrent reasoning by Dr. Ottó Czúcz and Dr. László Kiss, Judges of the Constitutional Court, and dissenting opinions by Dr. István Bagi and Dr. András Holló, Judges of the Constitutional Court – the Constitutional Court has adopted the following

decision: 1. Having interpreted Article 70/E of the Constitution, the Constitutional Court establishes the following: According to Article 70/E para. (1) of the Constitution, the right to social security entails the obligation of the State to secure a minimum livelihood through all of the welfare benefits. Guaranteeing the minimum livelihood shall not result in concretely defining specific rights – such as the “right to have a place of residence” – as constitutional fundamental rights. In this respect, no obligation, and hence no responsibility of the State may be established. According to Article 70/E para. (2) of the Constitution, the State should establish, maintain and operate a


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social security system and social security institutions in order to ensure that citizens may exercise their rights to benefits which they require to sustain themselves. In establishing the system of social benefits securing the minimum livelihood, the protection of human life and dignity is a fundamental constitutional requirement. Accordingly, the State is obliged to secure the fundamental conditions of human life – in case of homeless people it means the securing of a shelter to offer protection from a danger directly threatening human life. 2. The Constitutional Court rejects the petition seeking the determination of an unconstitutional omission in respect of the “right to have a place of residence”. (…)

R e a s o n i n g

I

The petition jointly submitted by the Ombudsman for Civil Rights and the Ombudsman for the Rights of National and Ethnic Minorities alleged an unconstitutional omission by the State of legislative duties specified in Articles 15, 16, 17 as well as Article 70/E of the Constitution. According to the petitioners, neither the statutory provisions on social benefits nor the ones on social security “cover completely the regulatory duties allocated on the State by the constitutional provisions referred to, as in their opinion, the right to have a shelter (a place of residence) is an inalienable part of the fundamental right to social security, as the lack of residence shall result in preventing all social measures reaching their goal.” Moreover, the petitioners hold that the provisions of Act LXV of 1990 on Local Governments and those of Act LXXVIII of 1993 on certain rules related to the rent and the sale of flats and premises do not specify in line with the relevant constitutional provisions the State tasks in the management of welfare flats and the division of tasks between the State and the local governments. On the one hand, the legislation in force provides that “the enforcement of the State responsibility” related to the management of welfare flats is in the exclusive competence of local governments but, on the other hand, a significant part of local governments “are unable to perform such tasks”. This might lead to regional differences in securing civil rights, resulting in discrimination. In the petitioners’ opinion, to solve this problem “it is absolutely necessary to interpret the constitutional contents of the fundamental right to social security in relation with the right to have a place of residence as well as to define the constitutional foundations and the scope of the State responsibility regarding the fundamental right to social security and the management of flats.” Taking into account all the above, the primary aim of the petition was to obtain an interpretation of Article 70/E of the Constitution, asking the following questions:

– does the right to have a place of residence form part of the constitutional fundamental right to social security, and what is the scope of this right [Article 70/E para. (1) of the Constitution]; – does the State bear any responsibility for securing the enforcement of the right to have a place of residence [Article 70/E para. (2) of the Constitution]?

Secondly, the petitioners requested the establishment of an unconstitutional omission based on the failure of the State to create a set of regulations and institutions related to securing the “right to have a place of residence” originating from the fundamental right to social security .


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(…)

III

(…)

IV

In its competence of posterior review, the Constitutional Court has been engaged in interpreting Article 70/E of the Constitution several times. In an early decision, the Constitutional Court also pointed out that “social security means neither a guaranteed income, nor that the achieved living standard of citizens could not deteriorate as a result of the unfavourable development of economic conditions. The obligations of the State in respect of the social security of its citizens are defined in a general manner by the provisions of Article 70/E para. (1) of the Constitution.” [Decision 32/1991 (VI. 6.) AB, ABH 1991, 146, 163] Then the Constitutional Court argued that “according to Article 70/E para. (2) of the Constitution, it only follows that the State should establish, maintain and operate a social security system and social security institutions in order to ensure that citizens may exercise their rights to benefits which they require to sustain themselves. However, the Constitution does not contain any fundamental principles and aspects related to the operation of such systems.” The Constitutional Court pointed out in relation to Article 70/E of the Constitution that “according to the Constitution, the only requirement is that the social security system and the social security institutions should realise the entitlement to benefits necessary for sustenance.” [Decision 26/1993 (IV. 29.) AB, ABH 1993, 196, 199] It was repeatedly established by the Constitutional Court in Decision 38/1994 (VI. 24.) AB (ABH 1994, 429, 433) in relation to Article 70/E of the Constitution that “as pointed out in Decision 26/1993 (IV. 29.) AB, it follows from the relevant provision of the Constitution that the State shall establish, maintain and operate a social security system and social security institutions in order to ensure that citizens may exercise their rights to benefits which they require to sustain themselves (ABH 1993, 196).” As held by the Constitutional Court, “the legislature enjoys relatively great liberty in determining the methods and degrees by which it enforces constitutionally-mandated State goals and social rights. A violation of the Constitution may arise only in borderline cases when the enforcement of a State goal or the realisation of a protected institution or right are clearly rendered impossible by either interference by the State or, more frequently, by its omission. Above that minimum requirement, however, there are no constitutional criteria – except for the violation of another fundamental right – to determine whether or not legislation serving a State goal or a social right is constitutional.” [Decision 28/1994 (V. 20.) AB, ABH 1994, 134, 140] In its Decision 43/1995 (VI. 30.) AB, the Constitutional Court pointed out in respect of changing the level of social benefits that “the State is deemed to have met its obligation specified in Article 70/E if it organises and operates a system of social security and welfare benefits in order to ensure social support. Within this, the legislature may itself determine the means whereby it wishes to achieve its social policy objectives.” In this regard, it was emphasised that “the State has a wide range of powers with respect to changes within the system of social benefits”. At the same time, the Constitutional Court established that as a result of withdrawals, the extent of welfare benefits as a whole may not be reduced below a minimum level which may be required according to Article 70/E”. (ABH 1995, 188, 191-192) The above decision is quoted in Decision 731/B/1995 AB of the Constitutional Court as well: “It does not follow from this provision of the Constitution that citizens would have a subjective right to State support in acquiring a flat, nor is the State obliged to secure a specific form and system of support for housing.


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The relevant provision of the Constitution merely provides for the operation of the State’s social policy, setting the constitutional requirement that the extent of welfare benefits as a whole should not be reduced below the minimum level defined in Article 70/E.” (ABH 1995, 801, 803). In its Decision 32/1998 (VI. 25.) AB, the Constitutional Court took – in connection with the determination of characteristics and requirements regarding the fundamental right to social security – a position in respect of the quality of the minimum level of benefits stating that “the right to social security contained in Article 70/E of the Constitution entails the obligation of the State to secure a minimum livelihood through all of the welfare benefits necessary for the realisation of the right to human dignity.” (ABH 1998, 251, 254). Thus – by way of reference to the right to human dignity – the abstract constitutional standard specified in Article 70/E para. (1) (maintaining the system of social benefits for securing the minimum livelihood) has become concrete in terms of quality as well: the benefits to be offered in the framework of social institutions should secure a minimum level guaranteeing the enforcement of the right to human dignity. In case of services not reaching the above minimum level, the right to social security may not be deemed enforced. As far as social rights are concerned, the minimum livelihood should be guaranteed by the whole of partial entitlements under the system of social benefits. This must, as a whole, comply with the general standard, the right to human dignity, which is – in the interpretation of the Constitutional Court – an “unrestrictable and undividable fundamental right in unity with the right to human life as well as the source and the condition of many other rights.” [Decision 23/1990 (X. 31.) AB, ABH 1990, 88, 93] In relation with the right to human life, the Constitutional Court established the “objective and institutionalised life protection duty of the State”, according to which the “obligation of the State based on the right to life goes beyond its obligation not to violate the individual's subjective right to life and to employ its legislative and administrative measures to protect this right, but it shall protect human life in general and the conditions thereof.” [Decision 48/1998 (XI. 23.) AB, ABH 1998, 333, 342]

V

1. In the theory of constitutional law, the differentiation between the so-called first and the second generation of human and civil rights has already been accepted as a traditional approach. Accordingly, the first generation comprises the classic freedoms that set limits upon the State organs exercising public authority in order to protect individual liberty. The second generation includes economic, social and cultural rights. Such rights may only be enforced through the activities of the State. Clearly, guaranteeing these rights depends upon the prevailing economic capabilities of society. This also applies to the right to social security specified in Article 70/E of the Constitution. 2. According to Article 70/E para. (1) of the Constitution, the right to social security entails the obligation of the State to secure a minimum livelihood through all of the welfare benefits. Guaranteeing the minimum livelihood shall not result in concretely defining specific rights as constitutional fundamental rights. The State enjoys a high degree of liberty in defining the actual tools of guaranteeing social security. If the Constitutional Court established certain partial rights (e.g. the right to have a place of residence, the rights to proper nutrition, cleaning or dressing) and enforced such rights with the strictness of fundamental constitutional rights, this would lead to the acknowledgement of more and more new elements of social benefits as fundamental constitutional rights. Such an interpretation would not take into account the right of the constitution-making authority to define fundamental constitutional rights. It would also neglect the constitutional requirement that the legislature should enjoy a high degree of liberty in defining the actual tools of guaranteeing social security. This way, the Constitutional Court would compel the legislature to guarantee certain concrete forms of benefits without due account to the prevailing capacities of the


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national economy. Consequently, the State obligation to increase the level of social benefits in proportion to the capacity of the national economy would not be realised as the State would only be compelled to secure certain concrete forms of support on a constant basis. Taking all the above into account, the Constitutional Court shall not acknowledge certain concrete partial rights as fundamental constitutional rights, although it establishes the responsibility of the State to guarantee benefits in general in order to secure human life and dignity in line with the capacity of the national economy. Consequently, no obligation, and hence no responsibility of the State may be established for guaranteeing the “right to have a place of residence”. In order to protect the right to human life and dignity specified as the constitutional requirement of the minimum livelihood according to Article 70/E para. (1) of the Constitution, the State shall secure the preconditions for human life. Accordingly, in case of homelessness, the State obligation to provide support shall include the provision of a shelter when an emergency situation directly threatens human life. The State obligation to provide shelter does not correspond to guaranteeing the “right to have a place of residence”. Thus, the State shall be responsible for securing a shelter if homelessness directly threatens human life. Therefore, only in case of such an extreme situation is the State obliged to take care of those who themselves cannot provide for the fundamental preconditions of human life. 3. In the opinion of the Constitutional Court, no unconstitutional omission may be established regarding the guaranteeing of “the right to have a place of residence”, as such a legislative obligation to adopt concrete legal provisions does not follow from Article 70/E of the Constitution. Based on the aforementioned reasoning, the petition seeking a declaratory judgment of an unconstitutional omission of the duty to legislate has been rejected in part by the Constitutional Court. 4. In relation to interpreting Article 70/E of the Constitution, the Constitutional Court points out that Act III of 1993 on Social Administration and Social Benefits and Act XXXI of 1997 on the Protection of Children and the Administration of Guardianship regulate in details State obligations in providing benefits including the placement of those in need. Among others, the State provides for homeless people heated premises during the day, provisional accommodation and night shelter, as well as accommodation-like services in the form of homes and rehabilitation institutes for homeless people. In addition, local governments may provide support for maintaining flats, which may be used obviously by those who have a flat but are unable to earn as much as needed to maintain the flat they live in. The Act on the Protection of Children regulates the institutions of supporting one’s effort to have his own home, provisional homes for families, provisional care of children and follow-up care. As far as these forms of support are concerned, the Constitutional Court points out repeatedly that the State should, with due account to the prevailing capabilities of the national economy, endeavour to increase the level of support and to expand the scope of social benefits in line with the capacity of the society. 5. Although no constitutional fundamental right to have concrete benefits follows from Article 70/E of the Constitution, the State shall – on the basis of its general obligation to provide support – strive for securing the widest possible range of social benefits. This is necessitated by the international obligations of the State, too. In this respect the Constitutional Court refers to its previous statement about “the obligation of the constitutional State under the rule of law to regulate the fundamental rights originating from the unity of human life and dignity with due regard to relevant international treaties and fundamental legal principles, serving the community’s and individual rights specified in the Constitution.” [Decision 23/1990 (X. 31.) AB, ABH 1990, 88, 93] Among others, the obligations of securing social security by the State under the rule of law are specified in the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations at its Session XXI on 16 December 1966, promulgated in Hungary in Law-Decree 9/1976, as Article 9 of the Convention provides for the following: “The States Parties to the present


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Covenant recognise the right of everyone to social security, including social insurance.” Article 11 point 1 of the above Covenant provides for more details, emphasising in particular the State’s continuous active actions aimed at securing the specific preconditions of existence in order to improve living conditions: “The States Parties to the present Covenant recognise 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. The States Parties will take appropriate steps to ensure the realisation of this right, recognising to this effect the essential importance of international co-operation based on free consent.” Similar obligations are specified for the States Parties in Section 16 of Act C of 1999 on the promulgation of the European Social Charter, providing for the wide-scale implementation of protecting the social, legal, and economic interests of the family: “With a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Contracting Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married, and other appropriate means.”

(…) Concurring reasoning by Dr. Ottó Czúcz, Judge of the Constitutional Court

Although I agree with all elements of the Decision and the reasoning thereof, I wish to point out and put more emphasis in my concurring reasoning on the importance of the life-protecting aspects of the decision. 1. In my opinion, the holdings of the Decision contain a constitutional requirement of exceptional importance, namely that “the State is obliged to secure … a shelter to offer protection from a danger directly threatening human life”. On the one hand, this requirement clearly reflects the experience (that can be justified by analysing theoretical models, too) that populations having no appropriate mechanisms for the protection of their members whose lives are in danger are at a competitive disadvantage as compared to other communities and they are threatened by extinction. In addition, I believe that this requirement also follows undoubtedly from comparing the provisions of Articles 70/E and 54 para. (1) of the Constitution, and its wording is in full compliance with the practice of the Constitutional Court followed so far when interpreting questions related to the protection of life. 2. Everyday experience shows that there may be special situations in life when – usually as a result of a natural disaster, human tragedy, decease, or because of any other unforeseeable cause – the lack of a certain element of the fundamental necessities of life (e.g. enough food, appropriate clothes, accommodation) may lead to a direct threat of the affected person’s life. Pursuant to Article 70/E para. (1) of the Constitution, “Citizens of the Republic of Hungary have the right to social security; they are entitled to the support required to live in old age, and in the case of sickness, disability, being widowed or orphaned and in the case of unemployment through no fault of their own.” Paragraph (2) adds that “The Republic of Hungary shall implement the right to social support through the social security system and the system of social institutions.” The reasoning of the Decision is right in quoting earlier decisions of the Constitutional Court detailing that the legislature enjoys a relatively great liberty concerning the tools and the extent of enforcing social rights, and that the State has a wide scale of powers to implement changes within the system of welfare benefits. However, in cases when someone’s life becomes endangered due to the lack of a certain element necessary for life, the structure of State obligations becomes modified. Then it is not enough to merely maintain various welfare institutions and operate them (in line with the prevailing concepts of social policy), in such cases the State is obliged to reallocate the resources available in order to have the


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measures necessary for eliminating the concrete danger at the disposal of those in need - in time, and to the extent needed for eliminating the threat. In this respect, reference is to be made to Decision 64/1991 (XII. 17.) AB of the Constitutional Court pointing out that “Article 54 para. (1) of the Constitution states that, on the one hand, the right to life is guaranteed to every human being and, on the other hand, in accordance with Article 8 para. (1), the protection of human life shall be »the primary obligation of the State«. The State duty to »respect and protect« fundamental rights is, with respect to subjective fundamental rights, not exhausted by the duty not to encroach on them, but incorporates the obligation to ensure the conditions necessary for their realisation.” [64/1991 (XII. 17.) ABH 297, 302] Decision 60/1993 (XI. 29.) AB as well as Decisions 28/1994 (V. 20.) and 58/1994 (XII. 14.) AB argue similarly. It is made clear by the above that the State obligations are transferred into another dimension when among usual welfare problems there arises a case where the lack of a certain element of the preconditions of survival causes an immediate threat to the life of the person concerned. Then the life-protecting function of the State makes its obligations more intense and “denser” than usual. One should note that increasing intensity does not result in making the structure of these obligations absolute, in the sense that the State would be bound to provide support merely on the grounds of a simple claim submitted by someone who feels his life is in danger. Nevertheless, in such cases the State should regulate with due care the criteria and the procedure to be applied in assessing whether the lack of accommodation does in the given circumstances endanger the life of the person concerned (if necessary, some reasonable rules of behaviour may be prescribed for the person concerned, and he may be called upon to cooperate in an expectable manner in order to eliminate the dangerous situation as soon as possible). On the other hand, the application of such preconditions pertaining to procedure and content should not be of such weight and extent as to make the life protection obligations of the State meaningless. This entails that persons in such a situation should be offered only the measures and means of protection that are otherwise available for citizens who have social problems but whose life is not threatened directly. However, the constitutional assessment of such detailed rules could only be rendered in the framework of an individual review based on a relevant petition. 3. I also agree with the holdings in respect of the Constitutional Court not establishing an unconstitutional omission of the legislature in guaranteeing the “right to have a place of residence”. However, this does not mean that the legislature may not have regulatory tasks of a wide scale related to offering adequate accommodation needed for the elimination of a danger directly threatening human life. In this regard, it is presumably necessary to check whether the rules in force comply with the above requirements. These issues are, however, beyond the scope of the matters dealt with by the Constitutional Court in the present case. Dr. László Kiss

I concur with the concurrent reasoning: Dissenting opinion by Dr. István Bagi, Judge of the Constitutional Court

I

I agree with the provisions under the first paragraph of point 1 and the first sentence of the second paragraph of point 1, and point 2 of the holdings of Decision 5/G/1998 adopted in the procedure aimed at the interpretation of the Constitution as well as at the establishment of a default of the legislation.


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However, I fundamentally disagree with the statement made in the second paragraph of the holdings about the State responsibility to guarantee a shelter for homeless people in order to eliminate a danger directly threatening human life. Although I accept the moral and sociological truth behind the above concept, I agree at the same time with the statement of the Decision holding that no concretely defined partial rights may be deducted from Article 70/E para. (1) of the Constitution which guarantees the minimum livelihood. In my opinion, the same applies to the interpretation of Article 70/E para. (2) of the Constitution, and therefore concrete “partial rights” – including the State obligation to secure “accommodation” – may not be deducted directly from the Constitution, having regard also to the fact that the definition of any concrete obligation could be interpreted as a norm. The competence of the Constitutional Court covers the so-called abstract interpretation of the Constitution. It is not possible to define the exact contents of the concept “accommodation” – merely a roof for protection, or more than that, e.g. heating in cold weather, food supply in case of an emergency threatening life, or other measures necessary in case of an emergency – in my opinion, this kind of interpretation of the Constitution may not be considered an abstract one. An interpretation on the contrary, representing a position according to which the securing of accommodation is interpreted as a clear and concrete obligation should be declared by the legislature in the competence of creating a legal norm, possibly by an amendment of the Constitution.

II I hold that Article 70/E para. (2) – the right to benefits is satisfied through social insurance and the system of social security institutions in the Republic of Hungary – has been interpreted adequately and in an abstract manner by the Constitutional Court in its earlier decisions as referred to in the present Decision, and declaring a concrete obligation of the State would mean “adding words” to the Constitution. Too broad interpretations of “homelessness” and “danger directly threatening life” would allow for certain possibilities but as the latter definition is used in other branches of the law as well, it would harm the abstract nature of the concept. I would have dispensed with pronouncing the obligation of the State, which I consider a concrete obligation, in the interpretation of Article 70/E para. (2) of the Constitution. Dissenting opinion by Dr. András Holló, Judge of the Constitutional Court

1/ I agree with point 2 of the Decision, the rejection of the petition aimed at the establishment of an unconstitutional omission in respect of the “right to have a place of residence” as well as with point 1, except for its last sentence, of the Decision on interpreting Article 70/E of the Constitution. However, I raise objections to the following sentence: “Accordingly, the State is obliged to secure the fundamental conditions of human life – in case of homeless people it means the securing of a shelter to offer protection from a danger directly threatening human life.” In my opinion, with the above interpreting sentence, the Constitutional Court has exceeded the scope of an abstract interpretation of the Constitution and it has determined a concrete task for the State that falls within the competence of the legislature, together with the concrete condition of performing the task concerned.


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The concrete task of the State referred to above may not be linked with determining force directly to the contents of Article 70/E of the Constitution as explained and interpreted in earlier decisions by the Constitutional Court. 2/ So far the Constitutional Court has interpreted Article 70/E of the Constitution in its scope of competence concerning the posterior review of the unconstitutionality of a statute and it has explained the contents of the Article concerned by gradually unfolding it in several decisions. According to the prevailing interpretation of the Constitutional Court, the right to social security means the State obligation to establish and operate a system of welfare benefits securing the constitutional minimum level of the right to benefits absolutely necessary for the enforcement of the right to human dignity. Point 1 of the Decision actually transfers this interpretation to the level of an abstract interpretation of the Constitution with the addition of the sentence I have criticised. In Decision 32/1998 (VI. 25.) AB, the Constitutional Court established a constitutional requirement stating that the constitutional standard of the minimum level of benefits was the enforcement of the right to human dignity, thus expanding the interpretation of Article 70/E of the Constitution. Here, human dignity as a general standard is not “one of the forms” of the general personality right (Decision 8/1990 (IV. 23.) AB). The so-called “partial rights” corresponding to human dignity may not be deducted from the right to social security. In case of social rights, the whole of partial rights within the system of benefits and a given concrete form of benefit together with other benefits (Decision 32/1998 (VI. 25.) AB, ABH 1998, 254) shall comply with the general standard, the enforcement of the right to human dignity in the general sense as defined in Decision 64/1991 (XII. 17.) AB, as a determining factor of human status: “Human dignity and human life are inviolable of anyone who is a human being, irrespective of physical and intellectual development and condition and irrespective of the extent of fulfilment of the human potential and the cause therefor. We cannot even talk of a human being's right to life without positing that person's individual subjective right to life and dignity”. (ABH 1991, 309). Consequently, the constitutional minimum of the right to social security defined in Article 70/E of the Constitution as the right to benefits necessary for living – determined by the constitutional requirement of enforcing the right to human dignity – means all of the components of the human status, the preconditions for human life (the forms of aids and benefits) that must be secured by the State through the legislation as subjective rights or rights depending on need. Let me quote Decision 28/1994 (V. 20.) AB of the Constitutional Court to support my position: “Social rights are implemented by both by the formation of adequate institutions and the rights of individuals to have access to them, which rights are to be specified by the legislature” (ABH 1994, 134, 138). No directly denominated constitutional obligation about the extent and the manner of such rights may be deducted from the Constitution. (Decision 698/B/1990 AB: reference to Decision 1449/B/1992 AB, ABH 1994, 561, 563) 3/ In my opinion, one must differentiate between the (abstract) competence of the Constitutional Court to interpret the Constitution – revealing the contents of the given constitutional norm – and the determination of the theoretically possible variations of the legislative (executive) tasks resulting therefrom (the interpreted constitutional norm). The sentence I have criticised is the determination of the concrete task of the State that can be theoretically deducted from the interpretation of Article 70/E of the Constitution as summarised in the Decision – including the conditions thereof – and as such it is not part of the contents of Article 70/E of the Constitution. The concrete “denominated” obligations of the State resulting from Article 70/E of the Constitution shall be defined by the legislature and not by the Constitutional Court. “The implementation of the constitutional provisions – depending on many conditions – is a constantly changing and continuing task of the legislature, the judiciary, local governments and society”. (Decision 1558/B/1991 AB, ABH 1994, 510, 511)


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VIII. SOUTH AFRICA

A. Soobramoney v Minister of Health, KwaZulu-Natal, 1997

Constitutional Court 1997 (12) BCLR 1696 (CC)

JUDGMENT BY: Chaskalson P

[1]The appellant, a 41 year old unemployed man, is a diabetic who suffers from ischaemic heart disease and cerebro-vascular disease which caused him to have a stroke during 1996. In 1996 his kidneys also failed. Sadly his condition is irreversible and he is now in the final stages of chronic renal failure. His life could be prolonged by means of regular renal dialysis. He has sought such treatment from the renal unit of the Addington state hospital in Durban. The hospital can, however, only provide dialysis treatment to a limited number of patients. The renal unit has 20 dialysis machines available to it, and some of these machines are in poor condition. Each treatment takes four hours and a further two hours have to be allowed for the cleaning of a machine, before it can be used again for other treatment. Because of the limited facilities that are available for kidney dialysis the hospital has been unable to provide the appellant with the treatment he has requested.

[2]The reasons given by the hospital for this are set out in the respondent's answering affidavit deposed to by Doctor Saraladevi Naicker, a specialist physician and nephrologist in the field of renal medicine who has worked at Addington Hospital for 18 years and who is currently the President of the South African Renal Society. In her affidavit Dr Naicker says that Addington Hospital does not have enough resources to provide dialysis treatment for all patients suffering from chronic renal failure. Additional dialysis machines and more trained nursing staff are required to enable it to do this, but the hospital budget does not make provision for such expenditure. The hospital would like to have its budget increased but it has been told by the provincial health department that funds are not available for this purpose.

[3]Because of the shortage of resources the hospital follows a set policy in regard to the use of the dialysis resources. Only patients who suffer from acute renal failure, which can be treated and remedied by renal dialysis are given automatic access to renal dialysis at the hospital. Those patients who, like the appellant, suffer from chronic renal failure which is irreversible are not admitted automatically to the renal programme. A set of guidelines has been drawn up and adopted to determine which applicants who have chronic renal failure will be given dialysis treatment. According to the guidelines the primary requirement for admission of such persons to the dialysis programme is that the patient must be eligible for a kidney transplant. A patient who is eligible for a transplant will be provided with dialysis treatment until an organ donor is found and a kidney transplant has been completed.

[4]The guidelines provide that an applicant is not eligible for a transplant unless he or she is "[f]ree of significant vascular or cardiac disease." The medical criteria set out in the guidelines also provide that an applicant must be "Free of significant disease elsewhere e.g. ischaemic heart disease, cerebro-vascular disease, peripheral vascular disease, chronic liver disease, chronic lung disease."

The appellant suffers from ischaemic heart disease and cerebro-vascular disease and he is therefore not eligible for a kidney transplant.

[5]The appellant has made arrangements to receive dialysis treatment from private hospitals and doctors, but his finances have been depleted and he avers that he is no longer able to afford such treatment. In July 1997 he made an urgent application to the Durban and Coast Local Division of the High Court for an order directing the Addington Hospital to provide him with ongoing dialysis treatment and interdicting the respondent from refusing him admission to the renal unit of the hospital. The appellant claimed that in terms of the 1996 Constitution the Addington Hospital is obliged to make dialysis treatment available to him. The respondent opposed the application. The matter came before Combrinck J who dismissed the application. …

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[7]The appellant based his claim on section 27(3) of the 1996 Constitution which provides: "No one may be refused emergency medical treatment" and section 11 which stipulates "Everyone has the right to life."

[8]We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring.

[9]The constitutional commitment to address these conditions is expressed in the preamble which, after giving recognition to the injustices of the past, states: "We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to- Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; ... Improve the quality of life of all citizens and free the potential of each person."

This commitment is also reflected in various provisions of the bill of rights and in particular in sections 26 and 27 which deal with housing, health care, food, water and social security.

[10]Sections 26 and 27 contain the following provisions:

"26.Housing

(1)Everyone has the right to have access to adequate housing. (2)The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right... .

27.Health care, food, water and social security

(1)Everyone has the right to have access to- (a)health care services, including reproductive health care; (b)sufficient food and water; and (c)social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.

(2)The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

(3)No one may be refused emergency medical treatment."

[11]What is apparent from these provisions is that the obligations imposed on the State by sections 26 and 27 in regard to access to housing, health care, food, water and social security are dependent upon the resources available for such purposes, and that the corresponding rights themselves are limited by reason of the lack of resources. Given this lack of resources and the significant demands on them that have already been referred to, an unqualified obligation to meet these needs would not presently be capable of being fulfilled. This is the context within which section 27(3) must be construed.

[12]The appellant urges us to hold that patients who suffer from terminal illnesses and require treatment such as renal dialysis to prolong their lives are entitled in terms of section 27(3) to be provided with such treatment by the State, and that the State is required to provide funding and resources necessary for the discharge of this obligation.

[13]The words "emergency medical treatment" may possibly be open to a broad construction which would include ongoing treatment of chronic illnesses for the purpose of prolonging life. But this is not their ordinary meaning, and if this had been the purpose which section 27(3) was intended to serve, one would have expected that to have been expressed in positive and specific terms.

[14]Counsel for the appellant argued that section 27(3) should be construed consistently with the right to life entrenched in section 11 of the Constitution and that everyone requiring life-saving treatment who is


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unable to pay for such treatment herself or himself is entitled to have the treatment provided at a state hospital without charge.

[15]This Court has dealt with the right to life in the context of capital punishment but it has not yet been called upon to decide upon the parameters of the right to life or its relevance to the positive obligations imposed on the State under various provisions of the bill of rights. In India the Supreme Court has developed a jurisprudence around the right to life so as to impose positive obligations on the State in respect of the basic needs of its inhabitants. Whilst the Indian jurisprudence on this subject contains valuable insights it is important to bear in mind that our Constitution is structured differently to the Indian Constitution. Unlike the Indian Constitution ours deals specifically in the bill of rights with certain positive obligations imposed on the State, and where it does so, it is our duty to apply the obligations as formulated in the Constitution and not to draw inferences that would be inconsistent therewith.

[16]This should be done in accordance with the purposive approach to the interpretation of the Constitution which has been adopted by this Court. Consistently with this approach the rights which are in issue in the present case must not be construed in isolation "... but in [their] context, which includes the history and background to the adoption of the Constitution, other provisions of the Constitution itself and, in particular, the provisions of [the bill of rights] of which [they are] part."

[17]The purposive approach will often be one which calls for a generous interpretation to be given to a right to ensure that individuals secure the full protection of the bill of rights, but this is not always the case, and the context may indicate that in order to give effect to the purpose of a particular provision "a narrower or specific meaning" should be given to it.

[18]In developing his argument on the right to life counsel for the appellant relied upon a decision of a two-judge bench of the Supreme Court of India in Paschim Banga Khet Mazdoor Samity and Others v State of West Bengal and Another, where it was said:

"The Constitution envisages the establishment of a welfare State at the federal level as well as at the State level. In a welfare State the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare State. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals run by the State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21."

These comments must be seen in the context of the facts of that case which are materially different to those of the present case. It was a case in which constitutional damages were claimed. The claimant had suffered serious head injuries and brain haemorrhage as a result of having fallen off a train. He was taken to various hospitals and turned away, either because the hospital did not have the necessary facilities for treatment, or on the grounds that it did not have room to accommodate him. As a result he had been obliged to secure the necessary treatment at a private hospital. It appeared from the judgment that the claimant could in fact have been accommodated in more than one of the hospitals which turned him away and that the persons responsible for that decision had been guilty of misconduct. This is precisely the sort of case which would fall within section 27(3). It is one in which emergency treatment was clearly necessary. The occurrence was sudden, the patient had no opportunity of making arrangements in advance for the treatment that was required, and there was urgency in securing the treatment in order to stabilise his condition. The treatment was available but denied.

[19]In our Constitution the right to medical treatment does not have to be inferred from the nature of the State established by the Constitution or from the right to life which it guarantees. It is dealt with directly in


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section 27. If section 27(3) were to be construed in accordance with the appellant's contention it would make it substantially more difficult for the state to fulfil its primary obligations under sections 27(1) and (2) to provide health care services to "everyone" within its available resources. It would also have the consequence of prioritising the treatment of terminal illnesses over other forms of medical care and would reduce the resources available to the State for purposes such as preventative health care and medical treatment for persons suffering from illnesses or bodily infirmities which are not life threatening. In my view much clearer language than that used in section 27(3) would be required to justify such a conclusion.

[20]Section 27(3) itself is couched in negative terms - it is a right not to be refused emergency treatment. The purpose of the right seems to be to ensure that treatment be given in an emergency, and is not frustrated by reason of bureaucratic requirements or other formalities. A person who suffers a sudden catastrophe which calls for immediate medical attention, such as the injured person in Paschim Banga Khet Mazdoor Samity v State of West Bengal, should not be refused ambulance or other emergency services which are available and should not be turned away from a hospital which is able to provide the necessary treatment. What the section requires is that remedial treatment that is necessary and available be given immediately to avert that harm.

[21]The applicant suffers from chronic renal failure. To be kept alive by dialysis he would require such treatment two to three times a week. This is not an emergency which calls for immediate remedial treatment. It is an ongoing state of affairs resulting from a deterioration of the applicant's renal function which is incurable. In my view section 27(3) does not apply to these facts.

[22]The appellant's demand to receive dialysis treatment at a state hospital must be determined in accordance with the provisions of sections 27(1) and (2) and not section 27(3). These sections entitle everyone to have access to health care services provided by the State "within its available resources".

[23]In the Court a quo Combrinck J held that "[i]n this case the respondent has conclusively proved that there are no funds available to provide patients such as the applicant with the necessary treatment." This finding was not disputed by the appellant, but it was argued that the State could make additional funds available to the renal clinic and that it was obliged to do so to enable the clinic to provide life saving treatment to the appellant and others suffering from chronic renal failure.

[24]At present the Department of Health in KwaZulu-Natal does not have sufficient funds to cover the cost of the services which are being provided to the public. In 1996-1997 it overspent its budget by R152 million, and in the current year it is anticipated that the overspending will be R700 million rand unless a serious cutback is made in the services which it provides. The renal unit at the Addington Hospital has to serve the whole of KwaZulu-Natal and also takes patients from parts of the Eastern Cape. There are many more patients suffering from chronic renal failure than there are dialysis machines to treat such patients. This is a nation-wide problem and resources are stretched in all renal clinics throughout the land. Guidelines have therefore been established to assist the persons working in these clinics to make the agonising choices which have to be made in deciding who should receive treatment, and who not. These guidelines were applied in the present case.

[25]By using the available dialysis machines in accordance with the guidelines more patients are benefited than would be the case if they were used to keep alive persons with chronic renal failure, and the outcome of the treatment is also likely to be more beneficial because it is directed to curing patients, and not simply to maintaining them in a chronically ill condition. It has not been suggested that these guidelines are unreasonable or that they were not applied fairly and rationally when the decision was taken by the Addington Hospital that the appellant did not qualify for dialysis.

[26]Ideally the dialysis machines available at the Addington Hospital should handle no more than about 60 patients. At present they are being used to treat 85 patients and the hospital can barely accommodate those who meet its guidelines. The nurse-patient ratio in the renal unit is 1:4.5 instead of the recommended ratio of 1:2.5. According to Dr Naicker, if the hospital were required to treat all persons who, like the


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appellant, are suffering from chronic renal failure, it would be unable to do so. She says that if the appellant were to be admitted to the programme it would result in other patients who comply with the guidelines being put at risk. Only about 30% of the patients suffering from chronic renal failure meet the guidelines for admission to the dialysis programme. If everyone in the same condition as the appellant were to be admitted the carefully tailored programme would collapse and no one would benefit from that.

[27]The appellant avers in his affidavits that better use could be made of the dialysis machines at the Addington Hospital by keeping the clinic open for longer hours. He says that some of the nurses "moonlight" at other hospitals after their normal working hours in order to earn extra income, and that if they were given overtime opportunities at the Addington Hospital more people could be treated.

[28]The appellant's case must be seen in the context of the needs which the health services have to meet, for if treatment has to be provided to the appellant it would also have to be provided to all other persons similarly placed. Although the renal clinic could be kept open for longer hours, it would involve additional expense in having to pay the clinic personnel at overtime rates, or in having to employ additional personnel working on a shift basis. It would also put a great strain on the existing dialysis machines which are already showing signs of wear. It is estimated that the cost to the State of treating one chronically ill patient by means of renal dialysis provided twice a week at a state hospital is approximately R60 000 per annum. If all the persons in South Africa who suffer from chronic renal failure were to be provided with dialysis treatment - and many of them, as the appellant does, would require treatment three times a week - the cost of doing so would make substantial inroads into the health budget. And if this principle were to be applied to all patients claiming access to expensive medical treatment or expensive drugs, the health budget would have to be dramatically increased to the prejudice of other needs which the State has to meet.

[29]The provincial administration which is responsible for health services in KwaZulu-Natal has to make decisions about the funding that should be made available for health care and how such funds should be spent. These choices involve difficult decisions to be taken at the political level in fixing the health budget, and at the functional level in deciding upon the priorities to be met. A court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters.

[30]Although the problem of scarce resources is particularly acute in South Africa this is not a peculiarly South African problem. It is a problem which hospital administrators and doctors have had to confront in other parts of the world, and in which they have had to take similar decisions. In his judgment in this case Combrinck J refers to decisions of the English courts in which it has been held to be undesirable for a court to make an order as to how scarce medical resources should be applied, and to the danger of making any order that the resources be used for a particular patient, which might have the effect of denying those resources to other patients to whom they might more advantageously be devoted. The dilemma confronting health authorities faced with such cases was described by Sir Thomas Bingham MR in a passage cited by Combrinck J from the judgment in R v Cambridge Health Authority, ex parte B:

"I have no doubt that in a perfect world any treatment which a patient, or a patient's family, sought would be provided if doctors were willing to give it, no matter how much it cost, particularly when a life was potentially at stake. It would however, in my view, be shutting one's eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet. They cannot pay their nurses as much as they would like; they cannot provide all the treatments they would like; they cannot purchase all the extremely expensive medical equipment they would like; they cannot carry out all the research they would like; they cannot build all the hospitals and specialist units they would like. Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make."


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[31]One cannot but have sympathy for the appellant and his family, who face the cruel dilemma of having to impoverish themselves in order to secure the treatment that the appellant seeks in order to prolong his life. The hard and unpalatable fact is that if the appellant were a wealthy man he would be able to procure such treatment from private sources; he is not and has to look to the State to provide him with the treatment. But the State's resources are limited and the appellant does not meet the criteria for admission to the renal dialysis programme. Unfortunately, this is true not only of the appellant but of many others who need access to renal dialysis units or to other health services. There are also those who need access to housing, food and water, employment opportunities, and social security. These too are aspects of the right to "... human life: the right to live as a human being, to be part of a broader community, to share in the experience of humanity."

The State has to manage its limited resources in order to address all these claims. There will be times when this requires it to adopt a holistic approach to the larger needs of society rather than to focus on the specific needs of particular individuals within society.

[32]In his concurring judgment in this matter Madala J refers to the possibility of the appellant being treated by Continuing Ambulatory Peritoneal Dialysis (CAPD). This treatment is dealt with fully by Dr Naicker in a supplementary affidavit lodged by her in response to an averment made by the appellant in his replying affidavit that there is treatment, other than renal dialysis, which would be of benefit to him, but had not been offered to him by the Addington Hospital.

[33]Dr Naicker explains that CAPD treatment makes patients vulnerable to infections and leads to patients having to be put on dialysis for two to three months when such infections occur. If an infection occurs frequently or is severe the patient has to be put onto dialysis permanently. A study undertaken at the hospital shows that over 60% of the patients treated at the hospital by CAPD have had to be placed on dialysis permanently. The cost of the treatment is high - the fluids used in the treatment call for an expenditure of approximately R4000 per month - and there is the additional cost of having to accommodate the patient at the hospital and treat him or her in the surgery. Because of the high cost of the treatment and the demands that it makes on hospital resources including dialysis facilities, the hospital has also set criteria for treating patients by CAPD. Only patients who are candidates for transplant are placed on CAPD and approximately 130 such patients are being treated in this way at the hospital. The appellant is not a candidate for a transplant and accordingly does not meet the criteria for CAPD treatment.

[34]Counsel for the appellant, correctly in my view, appreciated that there was no material difference between the appellant's claim to be placed on dialysis (which is his preferred option) and the alternative of being treated by CAPD. Neither form of treatment is "emergency treatment", neither is accessible to all patients suffering from chronic renal failure and because of the limited resources both are subject to criteria which the appellant does not meet.

[35]I should add that I do not consider it appropriate to comment on the attitude of the private medical sector to CAPD treatment. No evidence was placed before us in that regard and there is nothing on the papers to show that patients treated privately do not receive proper advice in regard to the availability, risks and costs of such treatment.

[36]The State has a constitutional duty to comply with the obligations imposed on it by section 27 of the Constitution. It has not been shown in the present case, however, that the State's failure to provide renal dialysis facilities for all persons suffering from chronic renal failure constitutes a breach of those obligations. In the circumstances the appellant is not entitled to the relief that he seeks in these proceedings and his appeal against the decision of Combrinck J must fail. This is not an appropriate case for an order for costs to be made and the respondent correctly does not seek such an order.

[37]The following order is made. The appeal against the order made by Combrinck J is dismissed. …

BY Sachs J


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[50]I am in full agreement with the eloquent, forceful and well-focused judgment of Chaskalson P and wish merely to add certain considerations which I regard as relevant.

[51]The special attention given by section 27(3) to non-refusal of emergency medical treatment relates to the particular sense of shock to our notions of human solidarity occasioned by the turning away from hospital of people battered and bleeding or of those who fall victim to sudden and unexpected collapse. It provides reassurance to all members of society that accident and emergency departments will be available to deal with the unforeseeable catastrophes which could befall any person, anywhere and at any time. The values protected by section 27(3) would, accordingly, be undermined rather than reinforced by any unwarranted conflation of emergency and non-emergency treatment such as that argued for by the appellant.

[52]In a case such as the present which engages our compassion to the full, I feel it necessary to underline the fact that Chaskalson P's judgment, as I understand it, does not merely "toll the bell of lack of resources". In all the open and democratic societies based upon dignity, freedom and equality with which I am familiar, the rationing of access to life-prolonging resources is regarded as integral to, rather than incompatible with, a human rights approach to health care.

[53]Indeed, while each claimant seeking access to public medical resources is entitled to individualised consideration, the lack of principled criteria for regulating such access could be more open to challenge than the existence and application of such criteria. As a UNESCO publication put it: "Even in the industrialised nations where public tax-supported research has made a private biomedical technology industry possible, the literal provision of equal access to high-technology care, utilised most often by the elderly, would inevitably raise the level of spending to a point which would preclude investment in preventive care for the young, and maintenance care for working adults. That is why most national health systems do not offer, or severely ration (under a variety of disguises), expensive technological care such as renal dialysis or organ transplants."

The inescapable fact is that if governments were unable to confer any benefit on any person unless it conferred an identical benefit on all, the only viable option would be to confer no benefit on anybody.

[54]Health care rights by their very nature have to be considered not only in a traditional legal context structured around the ideas of human autonomy but in a new analytical framework based on the notion of human interdependence. A healthy life depends upon social interdependence: the quality of air, water, and sanitation which the State maintains for the public good; the quality of one's caring relationships, which are highly correlated to health; as well as the quality of health care and support furnished officially by medical institutions and provided informally by family, friends, and the community. As Minow put it:

"Interdependence is not a social ideal, but an inescapable fact; the scarcity of resources forces it on us. Who gets to use dialysis equipment? Who goes to the front of the line for the kidney transplant?"

Traditional rights analyses accordingly have to be adapted so as to take account of the special problems created by the need to provide a broad framework of constitutional principles governing the right of access to scarce resources and to adjudicate between competing rights bearers. When rights by their very nature are shared and inter-dependent, striking appropriate balances between the equally valid entitlements or expectations of a multitude of claimants should not be seen as imposing limits on those rights (which would then have to be justified in terms of section 36), but as defining the circumstances in which the rights may most fairly and effectively be enjoyed.

[55]I conclude with some observations on the questions raised relating to section 11 of the Constitution which states that "[e]veryone has the right to life." The present case does not necessitate any attempt to give a definitive answer to all these questions. Yet it does point to the need to establish what Dworkin has in his book Life's Dominion, called the "relative importance of the natural and human contributions to the sanctity of life". He concludes his study with the eloquent reminder that if people are to "retain the self consciousness and self respect that is the greatest achievement of our species, they will let neither science


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nor nature simply take its course, but will struggle to express, in the laws they make as citizens and the choices they make as people, the best understanding they can reach of why human life is sacred, and of the proper place of freedom in its dominion."

[56]"[T]he timing of death - once solely a matter of fate - is now increasingly becoming a matter of human choice." In the United States, eighty percent of the two million people who die each year, die in hospitals and long term care institutions, and approximately seventy percent of those after a decision to forego life sustaining treatment has been made. The words of Brennan J of the US Supreme Court, writing in a different context, have resonance:

"Nearly every death involves a decision whether to undertake some medical procedure that could prolong the process of dying. Such decisions are difficult and personal. They must be made on the basis of individual values, informed by medical realities, yet within a framework governed by law. The role of the courts is confined to defining that framework, delineating the ways in which government may and may not participate in such decisions." (My emphasis.)

[57]However the right to life may come to be defined in South Africa, there is in reality no meaningful way in which it can constitutionally be extended to encompass the right indefinitely to evade death. As Stevens J put it: dying is part of life, its completion rather than its opposite. We can, however, influence the manner in which we come to terms with our mortality. It is precisely here, where scarce artificial life-prolonging resources have to be called upon, that tragic medical choices have to be made.

[58]Courts are not the proper place to resolve the agonising personal and medical problems that underlie these choices. Important though our review functions are, there are areas where institutional incapacity and appropriate constitutional modesty require us to be especially cautious. Our country's legal system simply "cannot replace the more intimate struggle that must be borne by the patient, those caring for the patient, and those who care about the patient." The provisions of the bill of rights should furthermore not be interpreted in a way which results in courts feeling themselves unduly pressurised by the fear of gambling with the lives of claimants into ordering hospitals to furnish the most expensive and improbable procedures, thereby diverting scarce medical resources and prejudicing the claims of others.

[59]The applicant in this case presented his claim in a most dignified manner and showed manifest appreciation for the situation of the many other persons in the same harsh circumstances as himself. If resources were co-extensive with compassion, I have no doubt as to what my decision would have been. Unfortunately, the resources are limited, and I can find no reason to interfere with the allocation undertaken by those better equipped than I to deal with the agonising choices that had to be made.

B. Government of the Republic of South Africa and Others v Grootboom and Others, 2000


Before : A Chaskalson, President; PN Langa, Deputy President; RJ Goldstone, JC Kriegler, TH Madala, Y Mokgoro, SS Ngcobo, CME O'Regan, AL Sachs; and ZM Yacoob, Justices; E Cameron, Acting Justice

JUDGMENT by Yacoob J

A. Introduction

[1]The people of South Africa are committed to the attainment of social justice and the improvement of the quality of life for everyone. The Preamble to our Constitution records this commitment. The Constitution declares the founding values of our society to be "[h]uman dignity, the achievement of equality and the advancement of human rights and freedoms." This case grapples with the realisation of these aspirations for it concerns the State's constitutional obligations in relation to housing: a


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constitutional issue of fundamental importance to the development of South Africa's new constitutional order.

[2]The issues here remind us of the intolerable conditions under which many of our people are still living. The respondents are but a fraction of them. It is also a reminder that unless the plight of these communities is alleviated, people may be tempted to take the law into their own hands in order to escape these conditions. The case brings home the harsh reality that the Constitution's promise of dignity and equality for all remains for many a distant dream. People should not be impelled by intolerable living conditions to resort to land invasions. Self-help of this kind cannot be tolerated, for the unavailability of land suitable for housing development is a key factor in the fight against the country's housing shortage.

[3]The group of people with whom we are concerned in these proceedings lived in appalling conditions, decided to move out and illegally occupied someone else's land. They were evicted and left homeless. The root cause of their problems is the intolerable conditions under which they were living while waiting in the queue for their turn to be allocated low-cost housing. They are the people whose constitutional rights have to be determined in this case.

[4]Mrs Irene Grootboom and the other respondents were rendered homeless as a result of their eviction from their informal homes situated on private land earmarked for formal low-cost housing. They applied to the Cape of Good Hope High Court (the High Court) for an order requiring government to provide them with adequate basic shelter or housing until they obtained permanent accommodation and were granted certain relief. The appellants were ordered to provide the respondents who were children and their parents with shelter. The judgment provisionally concluded that "tents, portable latrines and a regular supply of water (albeit transported) would constitute the bare minimum." The appellants who represent all spheres of government responsible for housing challenge the correctness of that order.

[5]At the hearing of this matter an offer was made by the appellants to ameliorate the immediate crisis situation in which the respondents were living. The offer was accepted by the respondents. This meant that the matter was not as urgent as it otherwise would have been. However some four months after argument, the respondents made an urgent application to this Court in which they revealed that the appellants had failed to comply with the terms of their offer. That application was set down for 21 September 2000. On that day the Court, after communication with the parties, crafted an order putting the municipality on terms to provide certain rudimentary services.

[6]The cause of the acute housing shortage lies in apartheid. A central feature of that policy was a system of influx control that sought to limit African occupation of urban areas. Influx control was rigorously enforced in the Western Cape, where government policy favoured the exclusion of African people in order to accord preference to the coloured community: a policy adopted in 1954 and referred to as the "coloured labour preference policy." In consequence, the provision of family housing for African people in the Cape Peninsula was frozen in 1962. This freeze was extended to other urban areas in the Western Cape in 1968. Despite the harsh application of influx control in the Western Cape, African people continued to move to the area in search of jobs. Colonial dispossession and a rigidly enforced racial distribution of land in the rural areas had dislocated the rural economy and rendered sustainable and independent African farming increasingly precarious. Given the absence of formal housing, large numbers of people moved into informal settlements throughout the Cape peninsula. The cycle of the apartheid era, therefore, was one of untenable restrictions on the movement of African people into urban areas, the inexorable tide of the rural poor to the cities, inadequate housing, resultant overcrowding, mushrooming squatter settlements, constant harassment by officials and intermittent forced removals. The legacy of influx control in the Western Cape is the acute housing shortage that exists there now. Although the precise extent is uncertain, the shortage stood at more than 100 000 units in the Cape Metro at the time of the inception of the interim Constitution in 1994. Hundreds of thousands of people in need of housing occupied rudimentary informal settlements providing for minimal shelter, but little else.


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[7]Mrs Grootboom and most of the other respondents previously lived in an informal squatter settlement called Wallacedene. It lies on the edge of the municipal area of Oostenberg, which in turn is on the eastern fringe of the Cape Metro. The conditions under which most of the residents of Wallacedene lived were lamentable. A quarter of the households of Wallacedene had no income at all, and more than two thirds earned less than R500 per month. About half the population were children; all lived in shacks. They had no water, sewage or refuse removal services and only 5% of the shacks had electricity. The area is partly waterlogged and lies dangerously close to a main thoroughfare. Mrs Grootboom lived with her family and her sister's family in a shack about twenty metres square.

[8]Many had applied for subsidised low-cost housing from the municipality and had been on the waiting list for as long as seven years. Despite numerous enquiries from the municipality no definite answer was given. Clearly it was going to be a long wait. Faced with the prospect of remaining in intolerable conditions indefinitely, the respondents began to move out of Wallacedene at the end of September 1998. They put up their shacks and shelters on vacant land that was privately owned and had been earmarked for low-cost housing. They called the land "New Rust."

[9]They did not have the consent of the owner and on 8 December 1998 he obtained an ejectment order against them in the magistrates' court. The order was served on the occupants but they remained in occupation beyond the date by which they had been ordered to vacate. Mrs Grootboom says they had nowhere else to go: their former sites in Wallacedene had been filled by others. The eviction proceedings were renewed in March 1999. The respondents' attorneys in this case were appointed by the magistrate to represent them on the return day of the provisional order of eviction. Negotiations resulted in the grant of an order requiring the occupants to vacate New Rust and authorising the sheriff to evict them and to dismantle and remove any of their structures remaining on the land on 19 May 1999. The magistrate also directed that the parties and the municipality mediate to identify alternative land for the permanent or temporary occupation of the New Rust residents.

[10]The municipality had not been party to the proceedings but it had engaged attorneys to monitor them on its behalf. It is not clear whether the municipality was a party to the settlement and the agreement to mediate. Nor is it clear whether the eviction was in accordance with the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998. The validity of the eviction order has never been challenged and must be accepted as correct. However, no mediation took place and on 18 May 1999, at the beginning of the cold, windy and rainy Cape winter, the respondents were forcibly evicted at the municipality's expense. This was done prematurely and inhumanely: reminiscent of apartheid-style evictions. The respondents' homes were bulldozed and burnt and their possessions destroyed. Many of the residents who were not there could not even salvage their personal belongings.

[11]The respondents went and sheltered on the Wallacedene sports field under such temporary structures as they could muster. Within a week the winter rains started and the plastic sheeting they had erected afforded scant protection. The next day the respondents' attorney wrote to the municipality describing the intolerable conditions under which his clients were living and demanded that the municipality meet its constitutional obligations and provide temporary accommodation to the respondents. The respondents were not satisfied with the response of the municipality and launched an urgent application in the High Court on 31 May 1999. As indicated above, the High Court granted relief to the respondents and the appellants now appeal against that relief. (…)

D. The relevant constitutional provisions and their justiciability

[19]The key constitutional provisions at issue in this case are section 26 and section 28(1)(c). Section 26 provides: "(1)Everyone has the right to have access to adequate housing. (2)The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3)No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions."


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Section 28(1)(c) provides: "(1)Every child has the right - ... (c)to basic nutrition, shelter, basic health care services and social services".

These rights need to be considered in the context of the cluster of socio-economic rights enshrined in the Constitution. They entrench the right of access to land, to adequate housing and to health care, food, water and social security. They also protect the rights of the child and the right to education.

[20]While the justiciability of socio-economic rights has been the subject of considerable jurisprudential and political debate, the issue of whether socio-economic rights are justiciable at all in South Africa has been put beyond question by the text of our Constitution as construed in the Certification judgment. During the certification proceedings before this Court, it was contended that they were not justiciable and should therefore not have been included in the text of the new Constitution. In response to this argument, this Court held:

"[T]hese rights are, at least to some extent, justiciable. As we have stated in the previous paragraph, many of the civil and political rights entrenched in the [constitutional text before this Court for certification in that case] will give rise to similar budgetary implications without compromising their justiciability. The fact that socio-economic rights will almost inevitably give rise to such implications does not seem to us to be a bar to their justiciability. At the very minimum, socio-economic rights can be negatively protected from improper invasion."

Socio-economic rights are expressly included in the Bill of Rights; they cannot be said to exist on paper only. Section 7(2) of the Constitution requires the State "to respect, protect, promote and fulfil the rights in the Bill of Rights" and the courts are constitutionally bound to ensure that they are protected and fulfilled. The question is therefore not whether socio-economic rights are justiciable under our Constitution, but how to enforce them in a given case. This is a very difficult issue which must be carefully explored on a case-by-case basis. To address the challenge raised in the present case, it is necessary first to consider the terms and context of the relevant constitutional provisions and their application to the circumstances of this case. Although the judgment of the High Court in favour of the appellants was based on the right to shelter (section 28(1)(c) of the Constitution), it is appropriate to consider the provisions of section 26 first so as to facilitate a contextual evaluation of section 28(1)(c).

E. Obligations imposed upon the State by section 26

i)Approach to interpretation

[21]Like all the other rights in Chapter 2 of the Constitution (which contains the Bill of Rights), section 26 must be construed in its context. The section has been carefully crafted. It contains three subsections. The first confers a general right of access to adequate housing. The second establishes and delimits the scope of the positive obligation imposed upon the State to promote access to adequate housing and has three key elements. The State is obliged: (a) to take reasonable legislative and other measures; (b) within its available resources; (c) to achieve the progressive realisation of this right. These elements are discussed later. The third subsection provides protection against arbitrary evictions.

[22]Interpreting a right in its context requires the consideration of two types of context. On the one hand, rights must be understood in their textual setting. This will require a consideration of Chapter 2 and the Constitution as a whole. On the other hand, rights must also be understood in their social and historical context.

[23]Our Constitution entrenches both civil and political rights and social and economic rights. All the rights in our Bill of Rights are inter-related and mutually supporting. There can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing or shelter. Affording socio-economic rights to all people therefore enables them to enjoy the other rights enshrined in Chapter 2. The realisation of these rights is also key to the advancement of race and


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gender equality and the evolution of a society in which men and women are equally able to achieve their full potential.

[24]The right of access to adequate housing cannot be seen in isolation. There is a close relationship between it and the other socio-economic rights. Socio-economic rights must all be read together in the setting of the Constitution as a whole. The State is obliged to take positive action to meet the needs of those living in extreme conditions of poverty, homelessness or intolerable housing. Their interconnectedness needs to be taken into account in interpreting the socio-economic rights, and, in particular, in determining whether the State has met its obligations in terms of them.

[25]Rights also need to be interpreted and understood in their social and historical context. The right to be free from unfair discrimination, for example, must be understood against our legacy of deep social inequality. …

ii)The relevant international law and its impact

[26]During argument, considerable weight was attached to the value of international law in interpreting section 26 of our Constitution. Section 39 of the Constitution obliges a court to consider international law as a tool to interpretation of the Bill of Rights. In Makwanyane Chaskalson P, in the context of section 35(1) of the interim Constitution, said:

"... public international law would include non-binding as well as binding law. They may both be used under the section as tools of interpretation. International agreements and customary international law accordingly provide a framework within which [the Bill of Rights] can be evaluated and understood, and for that purpose, decisions of tribunals dealing with comparable instruments, … may provide guidance as to the correct interpretation of particular provisions of [the Bill of Rights]."(Footnotes omitted)

The relevant international law can be a guide to interpretation but the weight to be attached to any particular principle or rule of international law will vary. However, where the relevant principle of international law binds South Africa, it may be directly applicable.

[27]The amici submitted that the International Covenant on Economic, Social and Cultural Rights (the Covenant) is of significance in understanding the positive obligations created by the socio-economic rights in the Constitution. Article 11.1 of the Covenant provides:

"The States Parties to the present Covenant recognize 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. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent."

This Article must be read with Article 2.1 which provides: "Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures."

[28]The differences between the relevant provisions of the Covenant and our Constitution are significant in determining the extent to which the provisions of the Covenant may be a guide to an interpretation of section 26. These differences, in so far as they relate to housing, are:

(a)The Covenant provides for a right to adequate housing while section 26 provides for the right of access to adequate housing.

(b)The Covenant obliges states parties to take appropriate steps which must include legislation while the Constitution obliges the South African state to take reasonable legislative and other measures.


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[29]The obligations undertaken by states parties to the Covenant are monitored by the United Nations Committee on Economic, Social and Cultural Rights (the committee). The amici relied on the relevant general comments issued by the committee concerning the interpretation and application of the Covenant, and argued that these general comments constitute a significant guide to the interpretation of section 26. In particular they argued that in interpreting this section, we should adopt an approach similar to that taken by the committee in paragraph 10 of general comment 3 issued in 1990, in which the committee found that socio-economic rights contain a minimum core. (cites para 10.) …

[30]It is clear from this extract that the committee considers that every state party is bound to fulfil a minimum core obligation by ensuring the satisfaction of a minimum essential level of the socio-economic rights, including the right to adequate housing. Accordingly, a state in which a significant number of individuals is deprived of basic shelter and housing is regarded as prima facie in breach of its obligations under the Covenant. A state party must demonstrate that every effort has been made to use all the resources at its disposal to satisfy the minimum core of the right. However, it is to be noted that the general comment does not specify precisely what that minimum core is.

[31]The concept of minimum core obligation was developed by the committee to describe the minimum expected of a state in order to comply with its obligation under the Covenant. It is the floor beneath which the conduct of the State must not drop if there is to be compliance with the obligation. Each right has a "minimum essential level" that must be satisfied by the States parties. The committee developed this concept based on "extensive experience gained by [it] ... over a period of more than a decade of examining States parties' reports." The general comment is based on reports furnished by the reporting states and the general comment is therefore largely descriptive of how the states have complied with their obligations under the Covenant. The committee has also used the general comment "as a means of developing a common understanding of the norms by establishing a prescriptive definition." Minimum core obligation is determined generally by having regard to the needs of the most vulnerable group that is entitled to the protection of the right in question. It is in this context that the concept of minimum core obligation must be understood in international law.

[32]It is not possible to determine the minimum threshold for the progressive realisation of the right of access to adequate housing without first identifying the needs and opportunities for the enjoyment of such a right. These will vary according to factors such as income, unemployment, availability of land and poverty. The differences between city and rural communities will also determine the needs and opportunities for the enjoyment of this right. Variations ultimately depend on the economic and social history and circumstances of a country. All this illustrates the complexity of the task of determining a minimum core obligation for the progressive realisation of the right of access to adequate housing without having the requisite information on the needs and the opportunities for the enjoyment of this right. The committee developed the concept of minimum core over many years of examining reports by reporting states. This Court does not have comparable information.

[33]The determination of a minimum core in the context of "the right to have access to adequate housing" presents difficult questions. This is so because the needs in the context of access to adequate housing are diverse: there are those who need land; others need both land and houses; yet others need financial assistance. There are difficult questions relating to the definition of minimum core in the context of a right to have access to adequate housing, in particular whether the minimum core obligation should be defined generally or with regard to specific groups of people. As will appear from the discussion below, the real question in terms of our Constitution is whether the measures taken by the State to realise the right afforded by section 26 are reasonable. There may be cases where it may be possible and appropriate to have regard to the content of a minimum core obligation to determine whether the measures taken by the State are reasonable. However, even if it were appropriate to do so, it could not be done unless sufficient information is placed before a court to enable it to determine the minimum core in any given context. In this case, we do not have sufficient information to determine what would comprise the minimum core


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obligation in the context of our Constitution. It is not in any event necessary to decide whether it is appropriate for a court to determine in the first instance the minimum core content of a right.

iii)Analysis of section 26

… Subsections (1) and (2) are related and must be read together. Subsection (1) aims at delineating the scope of the right. It is a right of everyone including children. Although the subsection does not expressly say so, there is, at the very least, a negative obligation placed upon the State and all other entities and persons to desist from preventing or impairing the right of access to adequate housing. The negative right is further spelt out in subsection (3) which prohibits arbitrary evictions. Access to housing could also be promoted if steps are taken to make the rural areas of our country more viable so as to limit the inexorable migration of people from rural to urban areas in search of jobs.

[35]The right delineated in section 26(1) is a right of "access to adequate housing" as distinct from the right to adequate housing encapsulated in the Covenant. This difference is significant. It recognises that housing entails more than bricks and mortar. It requires available land, appropriate services such as the provision of water and the removal of sewage and the financing of all of these, including the building of the house itself. For a person to have access to adequate housing all of these conditions need to be met: there must be land, there must be services, there must be a dwelling. Access to land for the purpose of housing is therefore included in the right of access to adequate housing in section 26. A right of access to adequate housing also suggests that it is not only the State who is responsible for the provision of houses, but that other agents within our society, including individuals themselves, must be enabled by legislative and other measures to provide housing. The State must create the conditions for access to adequate housing for people at all economic levels of our society. State policy dealing with housing must therefore take account of different economic levels in our society.

[36]In this regard, there is a difference between the position of those who can afford to pay for housing, even if it is only basic though adequate housing, and those who cannot. For those who can afford to pay for adequate housing, the State's primary obligation lies in unlocking the system, providing access to housing stock and a legislative framework to facilitate self-built houses through planning laws and access to finance. Issues of development and social welfare are raised in respect of those who cannot afford to provide themselves with housing. State policy needs to address both these groups. The poor are particularly vulnerable and their needs require special attention. It is in this context that the relationship between sections 26 and 27 and the other socio-economic rights is most apparent. If under section 27 the State has in place programmes to provide adequate social assistance to those who are otherwise unable to support themselves and their dependants, that would be relevant to the State's obligations in respect of other socio-economic rights.

[37]The State's obligation to provide access to adequate housing depends on context, and may differ from province to province, from city to city, from rural to urban areas and from person to person. Some may need access to land and no more; some may need access to land and building materials; some may need access to finance; some may need access to services such as water, sewage, electricity and roads. What might be appropriate in a rural area where people live together in communities engaging in subsistence farming may not be appropriate in an urban area where people are looking for employment and a place to live.

[38]Subsection (2) speaks to the positive obligation imposed upon the State. It requires the State to devise a comprehensive and workable plan to meet its obligations in terms of the subsection. However subsection (2) also makes it clear that the obligation imposed upon the State is not an absolute or unqualified one. The extent of the State's obligation is defined by three key elements that are considered separately: (a) the obligation to "take reasonable legislative and other measures"; (b) "to achieve the progressive realisation" of the right; and (c) "within available resources."

F. Reasonable legislative and other measures


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[39]What constitutes reasonable legislative and other measures must be determined in the light of the fact that the Constitution creates different spheres of government: national government, provincial government and local government. The last of these may, as it does in this case, comprises two tiers. The Constitution allocates powers and functions amongst these different spheres emphasising their obligation to co-operate with one another in carrying out their constitutional tasks. In the case of housing, it is a function shared by both national and provincial government. Local governments have an important obligation to ensure that services are provided in a sustainable manner to the communities they govern. A reasonable programme therefore must clearly allocate responsibilities and tasks to the different spheres of government and ensure that the appropriate financial and human resources are available.

[40]Thus, a co-ordinated State housing programme must be a comprehensive one determined by all three spheres of government in consultation with each other as contemplated by Chapter 3 of the Constitution. It may also require framework legislation at national level, a matter we need not consider further in this case as there is national framework legislation in place. Each sphere of government must accept responsibility for the implementation of particular parts of the programme but the national sphere of government must assume responsibility for ensuring that laws, policies, programmes and strategies are adequate to meet the State's section 26 obligations. In particular, the national framework, if there is one, must be designed so that these obligations can be met. It should be emphasised that national government bears an important responsibility in relation to the allocation of national revenue to the provinces and local government on an equitable basis. Furthermore, national and provincial government must ensure that executive obligations imposed by the housing legislation are met.

[41]The measures must establish a coherent public housing programme directed towards the progressive realisation of the right of access to adequate housing within the State's available means. The programme must be capable of facilitating the realisation of the right. The precise contours and content of the measures to be adopted are primarily a matter for the legislature and the executive. They must, however, ensure that the measures they adopt are reasonable. In any challenge based on section 26 in which it is argued that the State has failed to meet the positive obligations imposed upon it by section 26(2), the question will be whether the legislative and other measures taken by the State are reasonable. A court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent. The question would be whether the measures that have been adopted are reasonable. It is necessary to recognise that a wide range of possible measures could be adopted by the State to meet its obligations. Many of these would meet the requirement of reasonableness. Once it is shown that the measures do so, this requirement is met.

[42]The State is required to take reasonable legislative and other measures. Legislative measures by themselves are not likely to constitute constitutional compliance. Mere legislation is not enough. The State is obliged to act to achieve the intended result, and the legislative measures will invariably have to be supported by appropriate, well-directed policies and programmes implemented by the executive. These policies and programmes must be reasonable both in their conception and their implementation. The formulation of a programme is only the first stage in meeting the State's obligations. The programme must also be reasonably implemented. An otherwise reasonable programme that is not implemented reasonably will not constitute compliance with the State's obligations.

[43]In determining whether a set of measures is reasonable, it will be necessary to consider housing problems in their social, economic and historical context and to consider the capacity of institutions responsible for implementing the programme. The programme must be balanced and flexible and make appropriate provision for attention to housing crises and to short, medium and long term needs. A programme that excludes a significant segment of society cannot be said to be reasonable. Conditions do not remain static and therefore the programme will require continuous review.

[44]Reasonableness must also be understood in the context of the Bill of Rights as a whole. The right of access to adequate housing is entrenched because we value human beings and want to ensure that they are


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afforded their basic human needs. A society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom and equality. To be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right. It may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realisation of the right. Furthermore, the Constitution requires that everyone must be treated with care and concern. If the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test.

G. Progressive realisation of the right

[45]The extent and content of the obligation consist in what must be achieved, that is, "the progressive realisation of this right." It links subsections (1) and (2) by making it quite clear that the right referred to is the right of access to adequate housing. The term "progressive realisation" shows that it was contemplated that the right could not be realised immediately. But the goal of the Constitution is that the basic needs of all in our society be effectively met and the requirement of progressive realisation means that the State must take steps to achieve this goal. It means that accessibility should be progressively facilitated: legal, administrative, operational and financial hurdles should be examined and, where possible, lowered over time. Housing must be made more accessible not only to a larger number of people but to a wider range of people as time progresses. The phrase is taken from international law and Article 2.1 of the Covenant in particular. The committee has helpfully analysed this requirement in the context of housing as follows:

"Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d'tre, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources."

Although the committee's analysis is intended to explain the scope of states parties' obligations under the Covenant, it is also helpful in plumbing the meaning of "progressive realisation" in the context of our Constitution. The meaning ascribed to the phrase is in harmony with the context in which the phrase is used in our Constitution and there is no reason not to accept that it bears the same meaning in the Constitution as in the document from which it was so clearly derived.

H. Within available resources

[46]The third defining aspect of the obligation to take the requisite measures is that the obligation does not require the State to do more than its available resources permit. This means that both the content of the obligation in relation to the rate at which it is achieved as well as the reasonableness of the measures employed to achieve the result are governed by the availability of resources. Section 26 does not expect more of the State than is achievable within its available resources. As Chaskalson P said in Soobramoney:

"What is apparent from these provisions is that the obligations imposed on the State by subsections 26 and 27 in regard to access to housing, health care, food, water, and social security are dependent upon the resources available for such purposes, and that the corresponding rights themselves are limited by reason of the lack of resources. Given this lack of resources and the significant demands on them that have already been referred to, an unqualified obligation to meet these needs would not presently be capable of being fulfilled."


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There is a balance between goal and means. The measures must be calculated to attain the goal expeditiously and effectively but the availability of resources is an important factor in determining what is reasonable.

F. Description and evaluation of the State housing programme

[47]In support of their contention that they had complied with the obligation imposed upon them by section 26, the appellants placed evidence before this Court of the legislative and other measures they had adopted. There is in place both national and provincial legislation concerned with housing. It was explained that in 1994 the State inherited fragmented housing arrangements which involved thirteen statutory housing funds, seven ministries and housing departments, more than twenty subsidy systems and more than sixty national and regional parastatals operating on a racial basis. These have been rationalised. The national Housing Act provides a framework which establishes the responsibilities and functions of each sphere of government with regard to housing. The responsibility for implementation is generally given to the provinces. Provinces in turn have assigned certain implementation functions to local government structures in many cases. All spheres of government are intimately involved in housing delivery and the budget allocated by national government appears to be substantial. There is a single housing policy and a subsidy system that targets low-income earners regardless of race. The White Paper on Housing aims to stabilise the housing environment, establish institutional arrangements, protect consumers, rationalise institutional capacity within a sustainable long-term framework, facilitate the speedy release and servicing of land and co-ordinate and integrate the public sector investment in housing. In addition, various schemes are in place involving public/private partnerships aimed at ensuring that housing provision is effectively financed. (…)

[64]Counsel for the appellants supported the nationwide housing programme and resisted the notion that provision of relief for people in desperate need was appropriate in it. Counsel also submitted that section 26 did not require the provision of this relief. Indeed, the contention was that provision for people in desperate need would detract significantly from integrated housing development as defined in the Act. The housing development policy as set out in the Act is in itself laudable. It has medium and long term objectives that cannot be criticised. But the question is whether a housing programme that leaves out of account the immediate amelioration of the circumstances of those in crisis can meet the test of reasonableness established by the section.

[65]The absence of this component may have been acceptable if the nationwide housing programme would result in affordable houses for most people within a reasonably short time. However the scale of the problem is such that this simply cannot happen. Each individual housing project could be expected to take years and the provision of houses for all in the area of the municipality and in the Cape Metro is likely to take a long time indeed. The desperate will be consigned to their fate for the foreseeable future unless some temporary measures exist as an integral part of the nationwide housing programme. Housing authorities are understandably unable to say when housing will become available to these desperate people. The result is that people in desperate need are left without any form of assistance with no end in sight. Not only are the immediate crises not met. The consequent pressure on existing settlements inevitably results in land invasions by the desperate thereby frustrating the attainment of the medium and long term objectives of the nationwide housing programme. That is one of the main reasons why the Cape Metro land programme was adopted.

[66]The national government bears the overall responsibility for ensuring that the State complies with the obligations imposed upon it by section 26. The nationwide housing programme falls short of obligations imposed upon national government to the extent that it fails to recognise that the State must provide for relief for those in desperate need. They are not to be ignored in the interests of an overall programme focussed on medium and long-term objectives. It is essential that a reasonable part of the national housing budget be devoted to this, but the precise allocation is for national government to decide in the first instance.


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[67]This case is concerned with the Cape Metro and the municipality. The former has realised that this need has not been fulfilled and has put in place its land programme in an effort to fulfil it. This programme, on the face of it, meets the obligation which the State has towards people in the position of the respondents in the Cape Metro. Indeed, the amicus accepted that this programme "would cater precisely for the needs of people such as the respondents, and, in an appropriate and sustainable manner." However, as with legislative measures, the existence of the programme is a starting point only. What remains is the implementation of the programme by taking all reasonable steps that are necessary to initiate and sustain it. And it must be implemented with due regard to the urgency of the situations it is intended to address.

[68]Effective implementation requires at least adequate budgetary support by national government. This, in turn, requires recognition of the obligation to meet immediate needs in the nationwide housing programme. Recognition of such needs in the nationwide housing programme requires it to plan, budget and monitor the fulfilment of immediate needs and the management of crises. This must ensure that a significant number of desperate people in need are afforded relief, though not all of them need receive it immediately. Such planning too will require proper co-operation between the different spheres of government.

[69]In conclusion it has been established in this case that as of the date of the launch of this application, the State was not meeting the obligation imposed upon it by section 26(2) of the Constitution in the area of the Cape Metro. In particular, the programmes adopted by the State fell short of the requirements of section 26(2) in that no provision was made for relief to the categories of people in desperate need identified earlier. I come later to the order that should flow from this conclusion.

I. Section 28(1)(c) and the right to shelter

[70]The judgment of the High Court amounts to this: (a) section 28(1)(c) obliges the State to provide rudimentary shelter to children and their parents on demand if parents are unable to shelter their children; (b) this obligation exists independently of and in addition to the obligation to take reasonable legislative and other measures in terms of section 26; and (c) the State is bound to provide this rudimentary shelter irrespective of the availability of resources. On this reasoning, parents with their children have two distinct rights: the right of access to adequate housing in terms of section 26 as well as a right to claim shelter on demand in terms of section 28(1)(c).

[71]This reasoning produces an anomalous result. People who have children have a direct and enforceable right to housing under section 28(1)(c), while others who have none or whose children are adult are not entitled to housing under that section, no matter how old, disabled or otherwise deserving they may be. The carefully constructed constitutional scheme for progressive realisation of socio-economic rights would make little sense if it could be trumped in every case by the rights of children to get shelter from the State on demand. Moreover, there is an obvious danger. Children could become stepping stones to housing for their parents instead of being valued for who they are.

[72]The respondents and the amici in supporting the judgment of the High Court draw a distinction between housing on the one hand and shelter on the other. They contend that shelter is an attenuated form of housing and that the State is obliged to provide shelter to all children on demand. The respondents and the amici emphasise that the right of children to shelter is unqualified and that, the "reasonable measures" qualification embodied in sections 25(5) 26, 27 and 29 are markedly absent in relation to section 28(1)(c). The appellants disagree and criticise the respondents' definition of shelter on the basis that it conceives shelter in terms that limit it to a material object. They contend that shelter is more than just that, but define it as an institution constructed by the State in which children are housed away from their parents.

[73]I cannot accept that the Constitution draws any real distinction between housing on the one hand and shelter on the other, and that shelter is a rudimentary form of housing. Housing and shelter are related concepts and one of the aims of housing is to provide physical shelter. But shelter is not a commodity


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separate from housing. There is no doubt that all shelter represents protection from the elements and possibly even from danger. There are a range of ways in which shelter may be constituted: shelter may be ineffective or rudimentary at the one extreme and very effective and even ideal at the other. The concept of shelter in section 28(1)(c) is not qualified by any requirement that it should be "basic" shelter. It follows that the Constitution does not limit the concept of shelter to basic shelter alone. The concept of shelter in section 28(1)(c) embraces shelter in all its manifestations. However, it does not follow that the Constitution obliges the State to provide shelter at the most effective or the most rudimentary level to children in the company of their parents.

[74]The obligation created by section 28(1)(c) can properly be ascertained only in the context of the rights and, in particular, the obligations created by sections 25(5), 26 and 27 of the Constitution. Each of these sections expressly obliges the State to take reasonable legislative and other measures, within its available resources, to achieve the rights with which they are concerned. Section 28(1)(c) creates the right of children to basic nutrition, shelter, basic health care services and social services. There is an evident overlap between the rights created by sections 26 and 27 and those conferred on children by section 28. Apart from this overlap, the section 26 and 27 rights are conferred on everyone including children while section 28, on its face, accords rights to children alone. This overlap is not consistent with the notion that section 28(1)(c) creates separate and independent rights for children and their parents.

[75]The extent of the State obligation must also be interpreted in the light of the international obligations binding upon South Africa. The United Nations Convention on the Rights of the Child, ratified by South Africa in 1995, seeks to impose obligations upon state parties to ensure that the rights of children in their countries are properly protected. Section 28 is one of the mechanisms to meet these obligations. It requires the State to take steps to ensure that children's rights are observed. In the first instance, the State does so by ensuring that there are legal obligations to compel parents to fulfil their responsibilities in relation to their children. Hence, legislation and the common law impose obligations upon parents to care for their children. The State reinforces the observance of these obligations by the use of civil and criminal law as well as social welfare programmes.

[76]Section 28(1)(c) must be read in this context. Subsections 28(1)(b) and (c) provide: "Every child has the right - ... (b)to family care or parental care, or to appropriate alternative care when removed from the family environment; (c)to basic nutrition, shelter, basic health care services and social services".

They must be read together. They ensure that children are properly cared for by their parents or families, and that they receive appropriate alternative care in the absence of parental or family care. The section encapsulates the conception of the scope of care that children should receive in our society. Subsection (1)(b) defines those responsible for giving care while subsection (1)(c) lists various aspects of the care entitlement.

[77]It follows from subsection 1(b) that the Constitution contemplates that a child has the right to parental or family care in the first place, and the right to alternative appropriate care only where that is lacking. Through legislation and the common law, the obligation to provide shelter in subsection (1)(c) is imposed primarily on the parents or family and only alternatively on the State. The State thus incurs the obligation to provide shelter to those children, for example, who are removed from their families. It follows that section 28(1)(c) does not create any primary State obligation to provide shelter on demand to parents and their children if children are being cared for by their parents or families.

[78]This does not mean, however, that the state incurs no obligation in relation to children who are being cared for by their parents or families. In the first place, the State must provide the legal and administrative infrastructure necessary to ensure that children are accorded the protection contemplated by section 28. This obligation would normally be fulfilled by passing laws and creating enforcement mechanisms for the maintenance of children, their protection from maltreatment, abuse, neglect or degradation, and the prevention of other forms of abuse of children mentioned in section 28. In addition, the State is required to fulfil its obligations to provide families with access to land in terms of section 25, access to adequate


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housing in terms of section 26 as well as access to health care, food, water and social security in terms of section 27. It follows from this judgment that sections 25 and 27 require the State to provide access on a programmatic and coordinated basis, subject to available resources. One of the ways in which the State would meet its section 27 obligations would be through a social welfare programme providing maintenance grants and other material assistance to families in need in defined circumstances.

[79]It was not contended that the children who are respondents in this case should be provided with shelter apart from their parents. Those of the respondents in this case who are children are being cared for by their parents; they are not in the care of the State, in any alternative care, or abandoned. In the circumstances of this case, therefore, there was no obligation upon the State to provide shelter to those of the respondents who were children and, through them, their parents in terms of section 28(1)(c). The High Court therefore erred in making the order it did on the basis of this section.

J. Evaluation of the conduct of the appellants towards the respondents

[80]The final section of this judgment is concerned with whether the respondents are entitled to some relief in the form of temporary housing because of their special circumstances and because of the appellants' conduct towards them. This matter was raised in argument, and although not fully aired on the papers, it is appropriate to consider it. At first blush, the respondents' position was so acute and untenable when the High Court heard the case that simple humanity called for some form of immediate and urgent relief. They had left Wallacedene because of their intolerable circumstances, had been evicted in a way that left a great deal to be desired and, as a result, lived in desperate sub-human conditions on the Wallacedene soccer field or in the Wallacedene community hall. But we must also remember that the respondents are not alone in their desperation; hundreds of thousands (possibly millions) of South Africans live in appalling conditions throughout our country.

[81]Although the conditions in which the respondents lived in Wallacedene were admittedly intolerable and although it is difficult to level any criticism against them for leaving the Wallacedene shack settlement, it is a painful reality that their circumstances were no worse than those of thousands of other people, including young children, who remained at Wallacedene. It cannot be said, on the evidence before us, that the respondents moved out of the Wallacedene settlement and occupied the land earmarked for low-cost housing development as a deliberate strategy to gain preference in the allocation of housing resources over thousands of other people who remained in intolerable conditions and who were also in urgent need of housing relief. It must be borne in mind however, that the effect of any order that constitutes a special dispensation for the respondents on account of their extraordinary circumstances is to accord that preference.

[82]All levels of government must ensure that the housing programme is reasonably and appropriately implemented in the light of all the provisions in the Constitution. All implementation mechanisms, and all State action in relation to housing falls to be assessed against the requirements of section 26 of the Constitution. Every step at every level of government must be consistent with the constitutional obligation to take reasonable measures to provide adequate housing.

[83]But section 26 is not the only provision relevant to a decision as to whether State action at any particular level of government is reasonable and consistent with the Constitution. The proposition that rights are interrelated and are all equally important is not merely a theoretical postulate. The concept has immense human and practical significance in a society founded on human dignity, equality and freedom. It is fundamental to an evaluation of the reasonableness of State action that account be taken of the inherent dignity of human beings. The Constitution will be worth infinitely less than its paper if the reasonableness of State action concerned with housing is determined without regard to the fundamental constitutional value of human dignity. Section 26, read in the context of the Bill of Rights as a whole, must mean that the respondents have a right to reasonable action by the State in all circumstances and with particular regard to human dignity. In short, I emphasise that human beings are required to be treated as


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human beings. This is the backdrop against which the conduct of the respondents towards the appellants must be seen.

[84]The national legislature recognises this. In the course of stating the general principles binding on all levels of government, the Housing Act provides that in the administration of any matter relating to housing development, all levels of government must respect, protect, promote and fulfil the rights in Chapter 2 of the Constitution. In addition, section 2(1)(b) obliges all levels of government to consult meaningfully with individuals and communities affected by housing development. Moreover, section 9(1)(e) obliges municipalities to promote the resolution of conflict arising in the housing development process.

[85]Consideration is now given to whether the State action (or inaction) in relation to the respondents met the required constitutional standard. It is a central feature of this judgment that the housing shortage in the area of the Cape Metro in general and Oostenberg in particular had reached crisis proportions. Wallacedene was obviously bursting and it was probable that people in desperation were going to find it difficult to resist the temptation to move out of the shack settlement onto unoccupied land in an effort to improve their position. This is what the respondents apparently did.

[86]Whether the conduct of Mrs Grootboom and the other respondents constituted a land invasion was disputed on the papers. There was no suggestion however that the respondents' circumstances before their move to New Rust was anything but desperate. There is nothing in the papers to indicate any plan by the municipality to deal with the occupation of vacant land if it occurred. If there had been such a plan the appellants might well have acted differently.

[87]The respondents began to move onto the New Rust Land during September 1998 and the number of people on this land continued to grow relentlessly. I would have expected officials of the municipality responsible for housing to engage with these people as soon as they became aware of the occupation. I would also have thought that some effort would have been made by the municipality to resolve the difficulty on a case-by-case basis after an investigation of their circumstances before the matter got out of hand. The municipality did nothing and the settlement grew by leaps and bounds.

[88]There is, however, no dispute that the municipality funded the eviction of the respondents. The magistrate who ordered the ejectment of the respondents directed a process of mediation in which the municipality was to be involved to identify some alternative land for the occupation for the New Rust residents. Although the reason for this is unclear from the papers, it is evident that no effective mediation took place. The State had an obligation to ensure, at the very least, that the eviction was humanely executed. However, the eviction was reminiscent of the past and inconsistent with the values of the Constitution. The respondents were evicted a day early and to make matters worse, their possessions and building materials were not merely removed, but destroyed and burnt. I have already said that the provisions of section 26(1) of the Constitution burdens the State with at least a negative obligation in relation to housing. The manner in which the eviction was carried out resulted in a breach of this obligation.

[89]In these circumstances, the municipality's response to the letter of the respondents' attorney left much to be desired. It will be recalled that the letter Stated that discussions were being held with officials from the Provincial Administration in order to find an amicable solution to the problem. There is no evidence that the respondents were ever informed of the outcome of these discussions. The application was then opposed and argued on the basis that none of the appellants either individually or jointly could do anything at all to alleviate the problem. The Cape Metro, the Western Cape government and the national government were joined in the proceedings and would all have been aware of the respondents' plight.

[90]In all these circumstances, the State may well have been in breach of its constitutional obligations. It may also be that the conduct of the municipality was inconsistent with the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. In addition, the municipality may have failed


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to meet the obligations imposed by the provisions of sections 2(1)(b), 2(1)(h)(i) and 9(1)(e) of the Housing Act. However no argument was addressed to this Court on these matters and we are not in a position to consider them further.

[91]At the hearing in this Court, counsel for the national and Western Cape government, tendered a statement indicating that the respondents had, on that very day, been offered some alternative accommodation, not in fulfilment of any accepted constitutional obligation, but in the interests of humanity and pragmatism. Counsel for the respondents accepted the offer on their behalf. We were subsequently furnished with a copy of the arrangement which read as follows:

"1.The Department of Planning, Local Government and Housing (Western Cape Province) undertakes in conjunction with the Oostenberg Municipality to provide temporary accommodation to the respondents on the Wallacedene Sportsfield until they can be housed in terms of the housing programmes available to the local authority, and in particular the Accelerated Land Managed Settlement Programme.

2.The 'temporary accommodation' comprises: a marked off site; provision for temporary structures intended to be waterproof; basic sanitation, water and refuse services.

3.The implementation of such measures is to be discussed with the Wallacedene community and the respondents."

Although, as indicated earlier, the special position of the respondents was aired during argument, the relief claimed by them was always grounded only in sections 26 and 28 of the Constitution and not on the breach of any statute (such as the Prevention of Illegal Evictions Act, or the Housing Act), the common law or any other provision of the Constitution. Accordingly, it is inappropriate for this Court to order any relief on grounds other than sections 26 or 28 of the Constitution.

[92]This judgment must not be understood as approving any practice of land invasion for the purpose of coercing a state structure into providing housing on a preferential basis to those who participate in any exercise of this kind. Land invasion is inimical to the systematic provision of adequate housing on a planned basis. It may well be that the decision of a state structure, faced with the difficulty of repeated land invasions, not to provide housing in response to those invasions, would be reasonable. Reasonableness must be determined on the facts of each case.

K. Summary and conclusion

[93]This case shows the desperation of hundreds of thousands of people living in deplorable conditions throughout the country. The Constitution obliges the State to act positively to ameliorate these conditions. The obligation is to provide access to housing, health-care, sufficient food and water, and social security to those unable to support themselves and their dependants. The State must also foster conditions to enable citizens to gain access to land on an equitable basis. Those in need have a corresponding right to demand that this be done.

[94]I am conscious that it is an extremely difficult task for the State to meet these obligations in the conditions that prevail in our country. This is recognised by the Constitution which expressly provides that the State is not obliged to go beyond available resources or to realise these rights immediately. I stress however, that despite all these qualifications, these are rights, and the Constitution obliges the State to give effect to them. This is an obligation that courts can, and in appropriate circumstances, must enforce.

[95]Neither section 26 nor section 28 entitles the respondents to claim shelter or housing immediately upon demand. The High Court order ought therefore not to have been made. However, section 26 does oblige the State to devise and implement a coherent, co-ordinated programme designed to meet its section 26 obligations. The programme that has been adopted and was in force in the Cape Metro at the time that this application was brought, fell short of the obligations imposed upon the State by section 26(2) in that it failed to provide for any form of relief to those desperately in need of access to housing.


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[96]In the light of the conclusions I have reached, it is necessary and appropriate to make a declaratory order. The order requires the State to act to meet the obligation imposed upon it by section 26(2) of the Constitution. This includes the obligation to devise, fund, implement and supervise measures to provide relief to those in desperate need. …

C. Minister of Health and Others v Treatment Action Campaign, 2002


Introduction

[1]The HIV/AIDS pandemic in South Africa has been described as "an incomprehensible calamity" and "the most important challenge facing South Africa since the birth of our new democracy" and government's fight against "this scourge" as "a top priority". It "has claimed millions of lives, inflicting pain and grief, causing fear and uncertainty, and threatening the economy". These are not the words of alarmists but are taken from a Department of Health publication in 2000 and a ministerial foreword to an earlier departmental publication.

[2]This appeal is directed at reversing orders made in a High Court against government because of perceived shortcomings in its response to an aspect of the HIV/AIDS challenge. The court found that government had not reasonably addressed the need to reduce the risk of HIV-positive mothers transmitting the disease to their babies at birth. More specifically the finding was that government had acted unreasonably in

(a)refusing to make an antiretroviral drug called Nevirapine available in the public health sector where the attending doctor considered it medically indicated, and (b)not setting out a timeframe for a national programme to prevent mother-to-child transmission of HIV.

[3]The case started as an application in the High Court in Pretoria on 21 August 2001. The applicants were a number of associations and members of civil society concerned with the treatment of people with HIV/AIDS and with the prevention of new infections. In this judgment they are referred to collectively as "the applicants". The principal actor among them was the Treatment Action Campaign (TAC). The respondents were the national Minister of Health and the respective members of the executive councils (MECs) responsible for health in all provinces save the Western Cape. They are referred to collectively as "the government" or "government".

[4]Government, as part of a formidable array of responses to the pandemic, devised a programme to deal with mother-to-child transmission of HIV at birth and identified Nevirapine as its drug of choice for this purpose. The programme imposes restrictions on the availability of Nevirapine in the public health sector. This is where the first of two main issues in the case arose. The applicants contended that these restrictions are unreasonable when measured against the Constitution, which commands the State and all its organs to give effect to the rights guaranteed by the Bill of Rights. This duty is put thus by sections 7(2) and 8(1) of the Constitution respectively:

"7(2)The State must respect, protect, promote and fulfil the rights in the Bill of Rights... .

8(1)The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of State."

At issue here is the right given to everyone to have access to public health care services and the right of children to be afforded special protection. These rights are expressed in the following terms in the Bill of Rights: "27(1)Everyone has the right to have access to - (a)health care services, including reproductive health care; ... (2)The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights... .


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28(1)Every child has the right - ... (c)to basic nutrition, shelter, basic health care services and social services."

[5]The second main issue also arises out of the provisions of sections 27 and 28 of the Constitution. It is whether government is constitutionally obliged and had to be ordered forthwith to plan and implement an effective, comprehensive and progressive programme for the prevention of mother-to-child transmission of HIV throughout the country. The applicants also relied on other provisions of the Constitution which, in view of our conclusions, need not be considered. (…)

Factual background

[10]The two principal issues had been in contention between the applicants and government for some considerable time prior to the launching of the application in the High Court. Thus, when the TAC in September 1999 pressed for acceleration of the government programme for the prevention of intrapartum mother-to-child transmission of HIV, it was told by the Minister that this could not be done because there were concerns about, among other things, the safety and efficacy of Nevirapine. Nearly a year later (in August 2000), following the 13th International AIDS Conference in Durban and a follow-up meeting attended by the Minister and the MECs, the Minister announced that Nevirapine would still not be made generally available. Instead each province was going to select two sites for further research and the use of the drug would be confined to such sites.

[11]Close to a year later, in a letter dated 17 July 2001 written by their attorney, the applicants placed on record that: "[t]he Government has decided to make NVP [Nevirapine] available only at a limited number of pilot sites, which number two per province. The result is that doctors in the public sector, who do not work at one of those pilot sites, are unable to prescribe this drug for their patients, even though it has been offered to the government for free."

At the same time they pointedly asked the Minister to: "(a)provide us with legally valid reasons why you will not make NVP available to patients in the public health sector, except at the designated pilot sites, or alternatively to undertake forthwith to make NVP available in the public health sector.

(b)undertake to put in place a programme which will enable all medical practitioners in the public sector to decide whether to prescribe NVP for their pregnant patients, and to prescribe it where in their professional opinion this is medically indicated."

The Minister's reply dated 6 August 2001 did not deny the restriction imposed by government on the availability of Nevirapine; nor was any plan or programme to extend its availability mentioned. The undertakings requested were neither given nor refused outright. The meaning of the Minister's letter is, however, quite unmistakable. It details a series of governmental concerns regarding the safety and efficacy of Nevirapine requiring continuation of government's research programme.

[12]Nevirapine had been registered in 1998 by the Medicines Control Council, a specialist body created by the Medicines and Related Substances Control Act 101 of 1965 to determine the safety of drugs before their being made available in South Africa. In terms of this Act registration of a drug by definition entails a positive finding as to its quality, safety and efficacy. In January 2001 the World Health Organisation recommended the administration of the drug to mother and infant at the time of birth in order to combat HIV and between November 2000 and April 2001 the Medicines Control Council settled the wording of the package insert dealing with such use. The insert was formally approved by the Council in April 2001 and the parties treated that as the date of approval of the drug for the prevention of mother-to-child transmission of HIV.

[13]It was this date of approval that led to the Court's enquiry after the hearing and to the application to adduce further evidence relating to the date of the "registration" of Nevirapine for the prevention of mother-to-child transmission of HIV. At the time it appeared that this date might be relevant and that Nevirapine may have been approved for the prevention of mother-to-child transmission earlier than April


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2001. In the result, however, nothing turns on this. That being the case, further evidence directed to this issue is irrelevant. It follows that the application to adduce further evidence must be refused and no order be made in relation to the costs thereof.

[14]The letter from the Minister also lists a number of social, economic and public health implications of breastfeeding by HIV-positive mothers, emphasises the cultural and financial impact of formula-feeding as a substitute and outlines the overall complexity of providing a comprehensive package of care throughout the country. The Minister, although not responding directly to the undertakings sought on behalf of the applicants, quite clearly intimated that neither undertaking was or would be given. The decision was to confine the provision of Nevirapine in the public sector to the research sites and their outlets.

[15]It can be accepted that an important reason for this decision was that government wanted to develop and monitor its human and material resources nationwide for the delivery of a comprehensive package of testing and counselling, dispensing of Nevirapine and follow-up services to pregnant women attending at public health institutions. Where bottle-feeding was to be substituted for breastfeeding, appropriate methods and procedures had to be evolved for effective implementation, bearing in mind cultural problems, the absence of clean water in certain parts of the country and the increased risks to infants growing up with inadequate nutrition and sanitation. At the same time, data relating to administrative hitches and their solutions, staffing, costs and the like could be gathered and correlated. All of this obviously makes good sense from the public health point of view. These research and training sites could provide vital information on which in time the very best possible prevention programme for mother-to-child transmission could be developed.

[16]This point is also made in the Protocol for providing a comprehensive package of care for the prevention of mother to child transmission of HIV in South Africa (draft version 4) issued by government in April 2001:

"There is however, a need to assess the operational challenges inherent in the introduction of anti-retroviral regimen for the reduction of vertical transmission in rural settings as well as in urban settings in South Africa. This is due in part because the introduction of ARV [anti-retroviral] interventions needs to be accompanied by a series of other interventions such as the delivery of voluntary and confidential counselling and HIV testing, and revised obstetric practices and infant feeding practices. These require extensive capacity building, infrastructure development, improved management and community mobilization efforts. In order to gain better understanding of the operational challenges of introducing the intervention on a wider scale, MINMEC [a body consisting of the Minister of Health and the provincial MECs for Health] endorsed the establishment of two research sites in all nine Provinces for a period of two years."

[17]The crux of the problem, however, lies elsewhere: what is to happen to those mothers and their babies who cannot afford access to private health care and do not have access to the research and training sites? It is not clear on the papers how long it is planned to take before Nevirapine will be made available outside these sites. Some of the provinces had not yet established any test sites by the time the application was launched in late August 2001. The first sites were established only in May 2001 following a meeting the previous month at which government had endorsed the establishment of the sites for a period of two years. These sites were to be selected according to stated criteria, one in an urban and one in a rural community in each province. Whether the programme was to be maintained strictly until the last of the provincial test sites had been functioning for two years or could possibly be extended beyond that period does not appear from the papers. What is plain, though, is that for a protracted period Nevirapine would not be supplied at any public health institution other than one designated as part of a research site.

The issues


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[18]The founding affidavit, signed by the TAC deputy-chairperson, Ms Siphokazi Mthathi, commences with a useful summary of the case presented by the applicants. In paragraphs 20 and 21 of her affidavit the two principal issues are stated thus:

"20.The first issue is whether the Respondents are entitled to refuse to make Nevirapine (a registered drug) available to pregnant women who have HIV and who give birth in the public health sector, in order to prevent or reduce the risk of transmission of HIV to their infants, where in the judgment of the attending medical practitioner this is medically indicated.

21.The second issue is whether the Respondents are obliged, as a matter of law, to implement and set out clear timeframes for a national programme to prevent mother-to-child transmission of HIV, including voluntary counselling and testing, antiretroviral therapy, and the option of using formula milk for feeding."

[19]Then, in paragraph 22, she summarises the applicants' case in the following terms:

… One of the most common methods of transmission of HIV in children is from mother to child at and around birth. Government estimates are that since 1998, 70 000 children are infected in this manner every year. The Medicines Control Council has the statutory duty to investigate whether medicines are suitable for the purpose for which they are intended, and the safety, quality and therapeutic efficacy of medicines. The Medicines Control Council has registered Nevirapine for use to reduce the risk of mother-to-child transmission of HIV. This means that Nevirapine has been found to be suitable for this purpose, and that it is safe, of acceptable quality, and therapeutically efficacious. The result is that doctors in the private profession can and do prescribe Nevirapine for their patients when, in their professional judgment, it is appropriate to do so. In July 2000 the manufacturers of Nevirapine offered to make it available to the South African government free of charge for a period of five years, for the purposes of reducing the risk of mother-to-child transmission of HIV. The government has formally decided to make Nevirapine available only at a limited number of pilot sites, which number two per province. The result is that doctors in the public sector, who do not work at one of those pilot sites, are unable to prescribe this drug for their patients, even though it has been offered to the government for free. The Applicants are aware of the desirability of a multiple-strategy approach to the prevention of mother-to-child transmission. However, they cannot and do not accept that this provides a rational or lawful basis for depriving patients at other sites of the undoubted benefits of Nevirapine, even if at this stage the provision can not be done as part of a broader integrated strategy - a point that is not conceded. To the extent that there may be situations in which the use of Nevirapine is not indicated, this is the situation in both the private and the public sector. Whether or not to prescribe Nevirapine is a matter of professional medical judgment, which can only be exercised on a case-by-case basis. It is not a matter which is capable of rational or appropriate decision on a blanket basis. There is no rational or lawful basis for allowing doctors in the private sector to exercise their professional judgment in deciding when to prescribe Nevirapine, but effectively prohibiting doctors in the public sector from doing so. In addition to refusing to make Nevirapine generally available in the public health sector, the government has failed over an extended period to implement a comprehensive programme for the prevention of mother-to-child transmission of HIV. The result of this refusal and this failure is the mother-to-child transmission of HIV in situations where this was both predictable and avoidable. This conduct of the government is irrational, in breach of the Bill of Rights, and contrary to the values and principles prescribed for public administration in section 195 of the Constitution. Furthermore, government conduct is in breach of its international obligations as contained in a number of conventions that it has both signed and ratified." …

[22]In their argument counsel for the government raised issues pertaining to the separation of powers. This may be relevant in two respects:

(i)in the deference that courts should show to decisions taken by the executive concerning the formulation of its policies; and (ii)in the order to be made where a court finds that the executive has failed to comply with its constitutional obligations.


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These considerations are relevant to the manner in which a court should exercise the powers vested in it under the Constitution. It was not contended, nor could it have been, that they are relevant to the question of justiciability.

Enforcement of socio-economic rights

[23]This Court has had to consider claims for enforcement of socio-economic rights on two occasions. On both occasions it was recognised that the State is under a constitutional duty to comply with the positive obligations imposed on it by sections 26 and 27 of the Constitution. It was stressed, however, that the obligations are subject to the qualifications expressed in sections 26(2) and 27(2). On the first occasion, in Soobramoney, the claim was dismissed because the applicant failed to establish that the State was in breach of its obligations under section 26 in so far as the provision of renal dialysis to chronically ill patients was concerned. In Grootboom the claim was upheld because the State's housing policy in the area of the Cape Metropolitan Council failed to make reasonable provision within available resources for people in that area who had no access to land and no roof over their heads and were living in intolerable conditions.

[24]In both cases the socio-economic rights, and the corresponding obligations of the State, were interpreted in their social and historical context. The difficulty confronting the State in the light of our history in addressing issues concerned with the basic needs of people was stressed. Thus, in Grootboom, Yacoob J said:

"This case shows the desperation of hundreds of thousands of people living in deplorable conditions throughout the country. The Constitution obliges the State to act positively to ameliorate these conditions. The obligation is to provide access to housing, health-care, sufficient food and water, and social security to those unable to support themselves and their dependants. The State must also foster conditions to enable citizens to gain access to land on an equitable basis. Those in need have a corresponding right to demand that this be done.

I am conscious that it is an extremely difficult task for the State to meet these obligations in the conditions that prevail in our country. This is recognised by the Constitution which expressly provides that the State is not obliged to go beyond available resources or to realise these rights immediately. I stress however, that despite all these qualifications, these are rights, and the Constitution obliges the State to give effect to them. This is an obligation that Courts can, and in appropriate circumstances, must enforce."

[25]The question in the present case, therefore, is not whether socio-economic rights are justiciable. Clearly they are. The question is whether the applicants have shown that the measures adopted by the government to provide access to health care services for HIV-positive mothers and their newborn babies fall short of its obligations under the Constitution.

Minimum core

[26]Before outlining the applicants' legal submissions, it is necessary to consider a line of argument presented on behalf of the first and second amici. It was contended that section 27(1) of the Constitution establishes an individual right vested in everyone. This right, so the contention went, has a minimum core to which every person in need is entitled. The concept of "minimum core" was developed by the United Nations Committee on Economic, Social and Cultural Rights which is charged with monitoring the obligations undertaken by State parties to the International Covenant on Economic, Social and Cultural Rights. According to the Committee:

"a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d'tre. By the same token, it must be noted that any assessment as to whether a State has discharged its


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minimum core obligations must also take account of resource constraints applying within the country concerned. Article 2(1) obligates each State party to take the necessary steps 'to the maximum of its available resources'. In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations."

[27]Support for this contention was sought in the language of the Constitution and attention was drawn to the differences between sections 9(2), 24(b), 25(5) and 25(8) on the one hand, and sections 26 and 27 on the other.

[28]It was contended that section 25(5), which obliges the State to "take reasonable legislative and other measures, within its available resources" towards "access to land", imposes an obligation on the State, but is not associated with a self-standing right to have access to land. Section 24(b), on the other hand, confers on everyone a right "to have the environment protected ... through reasonable legislative and other measures", but is not coupled with a separate duty on the State to take such measures. Sections 9(2) and 25(8) contain permissive powers to take reasonable measures but no obligation to do so. In the case of sections 26 and 27, however, rights and obligations are stated separately. There is accordingly a distinction between the self-standing rights in sections 26(1) and 27(1), to which everyone is entitled, and which in terms of section 7(2) of the Constitution "[t]he State must respect, protect, promote and fulfil", and the independent obligations imposed on the State by sections 26(2) and 27(2). This minimum core might not be easy to define, but includes at least the minimum decencies of life consistent with human dignity. No one should be condemned to a life below the basic level of dignified human existence. The very notion of individual rights presupposes that anyone in that position should be able to obtain relief from a court.

[29]In effect what the argument comes down to is that sections 26 and 27 must be construed as imposing two positive obligations on the State: one an obligation to give effect to the 26(1) and 27(1) rights; the other a limited obligation to do so progressively through "reasonable legislative and other measures, within its available resources". Implicit in that contention is that the content of the right in subsection (1) differs from the content of the obligation in subsection (2). This argument fails to have regard to the way subsections (1) and (2) of both sections 26 and 27 are linked in the text of the Constitution itself, and to the way they have been interpreted by this Court in Soobramoney (supra) and Grootboom (supra).

[30]Section 26(1) refers to the "right" to have access to housing. Section 26(2), dealing with the State's obligation in that regard, requires it to "take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right". The reference to "this right" is clearly a reference to the section 26(1) right. Similar language is used in section 27 which deals with health care services, including reproductive health care, sufficient food and water, and social security, including, if persons are unable to support themselves and their dependants, appropriate social assistance. Subsection (1) refers to the right everyone has to have "access" to these services; and subsection (2) obliges the State to take "reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights". The rights requiring progressive realisation are those referred to in sections 27(1)(a), (b) and (c).

[31]In Soobramoney it was said: "What is apparent from these provisions is that the obligations imposed on the State by ss 26 and 27 in regard to access to housing, health care, food, water and social security are dependent upon the resources available for such purposes, and that the corresponding rights themselves are limited by reason of the lack of resources."

The obligations referred to in this passage are clearly the obligations referred to in sections 26(2) and 27(2), and the "corresponding rights" are the rights referred to in sections 26(1) and 27(1).


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[32]This passage is cited in Grootboom. It is made clear in that judgment that sections 26(1) and 26(2) "are related and must be read together". Yacoob J said:

"The section has been carefully crafted. It contains three subsections. The first confers a general right of access to adequate housing. The second establishes and delimits the scope of the positive obligation imposed upon the State ..."

It is also made clear that "[s]ection 26 does not expect more of the State than is achievable within its available resources" and does not confer an entitlement to "claim shelter or housing immediately upon demand" and that as far as the rights of access to housing, health care, sufficient food and water, and social security for those unable to support themselves and their dependants are concerned, "the State is not obliged to go beyond available resources or to realise these rights immediately".

[33]In Grootboom reliance was also placed on the provisions of the Covenant. Yacoob J held that in terms of our Constitution the question is: "whether the measures taken by the State to realise the right afforded by section 26 are reasonable."

[34]Although Yacoob J indicated that evidence in a particular case may show that there is a minimum core of a particular service that should be taken into account in determining whether measures adopted by the State are reasonable, the socio-economic rights of the Constitution should not be construed as entitling everyone to demand that the minimum core be provided to them. Minimum core was thus treated as possibly being relevant to reasonableness under section 26(2), and not as a self-standing right conferred on everyone under section 26(1).

[35]A purposive reading of sections 26 and 27 does not lead to any other conclusion. It is impossible to give everyone access even to a "core" service immediately. All that is possible, and all that can be expected of the State, is that it act reasonably to provide access to the socio-economic rights identified in sections 26 and 27 on a progressive basis. In Grootboom the relevant context in which socio-economic rights need to be interpreted was said to be that "[m]illions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted ..."

[36]The State is obliged to take reasonable measures progressively to eliminate or reduce the large areas of severe deprivation that afflict our society. The courts will guarantee that the democratic processes are protected so as to ensure accountability, responsiveness and openness, as the Constitution requires in section 1. As the Bill of Rights indicates, their function in respect of socio-economic rights is directed towards ensuring that legislative and other measures taken by the State are reasonable. As this Court said in Grootboom, "[i]t is necessary to recognise that a wide range of possible measures could be adopted by the State to meet its obligations".

[37]It should be borne in mind that in dealing with such matters the courts are not institutionally equipped to make the wide-ranging factual and political enquiries necessary for determining what the minimum-core standards called for by the first and second amici should be, nor for deciding how public revenues should most effectively be spent. There are many pressing demands on the public purse. As was said in Soobramoney:

"The State has to manage its limited resources in order to address all these claims. There will be times when this requires it to adopt a holistic approach to the larger needs of society rather than to focus on the specific needs of particular individuals within society."

[38]Courts are ill-suited to adjudicate upon issues where court orders could have multiple social and economic consequences for the community. The Constitution contemplates rather a restrained and focused role for the courts, namely, to require the State to take measures to meet its constitutional obligations and to subject the reasonableness of these measures to evaluation. Such determinations of reasonableness may


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in fact have budgetary implications, but are not in themselves directed at rearranging budgets. In this way the judicial, legislative and executive functions achieve appropriate constitutional balance.

[39]We therefore conclude that section 27(1) of the Constitution does not give rise to a self-standing and independent positive right enforceable irrespective of the considerations mentioned in section 27(2). Sections 27(1) and 27(2) must be read together as defining the scope of the positive rights that everyone has and the corresponding obligations on the State to "respect, protect, promote and fulfil" such rights. The rights conferred by sections 26(1) and 27(1) are to have "access" to the services that the State is obliged to provide in terms of sections 26(2) and 27(2).

Government policy on the prevention of mother-to-child transmission of HIV

[40]Government's policy for the treatment of HIV/AIDS including mother-to-child transmission of HIV is dealt with in various documents. In particular, government adopted an HIV/AIDS & STD strategic plan for South Africa 2000-2005. This was followed by a number of HIV/AIDS-related policy guidelines that deal with various aspects of the strategic plan. These included guidelines on managing HIV in children, prevention of mother-to-child transmission and management of HIV-positive pregnant women, feeding of infants of HIV-positive mothers and testing for HIV. It is not necessary to refer in any detail to these documents and the policies embodied in them. Where particular matters are relevant, they will be referred to in the judgment. Government policy was also the subject of discussion at the meetings of the Department of Health's National Steering Committee on Prevention of Mother-to-Child Transmission and at meetings of Minmec.

[41]Following the 13th International Conference on HIV/AIDS held in Durban in July 2000, government took a decision to implement a programme for the prevention of mother-to-child transmission of HIV/AIDS. This programme entailed the provision of voluntary HIV counselling and testing to pregnant women, the provision of Nevirapine and the offer of formula feed to HIV-positive mothers who chose this option of feeding. The implementation of this programme was to be confined to selected sites in each province for a period of two years. As pointed out earlier, these pilot sites were to be used primarily to evaluate the use of Nevirapine, monitoring and evaluating its impact on the health status of the children affected as well as the feasibility of such an intervention on a country-wide basis. Information gathered from these sites was to be used in developing a national policy for the extension of this programme to other public facilities outside the pilot sites. Nevirapine was not to be made available to public facilities outside the pilot sites.

[42]This programme was to be implemented in accordance with the Protocol for providing a comprehensive package of care for the prevention of mother to child transmission of HIV in South Africa, draft version 4 of which was adopted in April 2001. This protocol made provision for a comprehensive package of care for the prevention of mother-to-child transmission of HIV. It was based on two propositions: first, the acceptance that there is enough scientific evidence confirming the efficacy of various antiretroviral drugs for reducing the transmission of HIV from mother to child; and second, that there is a need to assess the operational challenges inherent in the introduction of an antiretroviral regimen for the reduction of mother-to-child transmission of HIV in South Africa in both rural and urban settings. The protocol recognised that appropriately trained staff is a prerequisite for the successful implementation of any programme. To this end, provision was made in the protocol for the development of materials for the required training of staff, including training in counselling, testing for HIV, the medical and obstetric interventions necessary to reduce mother-to-child transmission at the time of birth and other related matters.

[43]The protocol contemplated that the programme would be introduced at two sites, one rural and one urban, in each of the provinces. A full package of care would be available at these sites and the progress made by the infants receiving the treatment would be carefully monitored for a period of two years.

The applicants' contentions


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[44]It is the applicants' case that the measures adopted by government to provide access to health care services to HIV-positive pregnant women were deficient in two material respects: first, because they prohibited the administration of Nevirapine at public hospitals and clinics outside the research and training sites; and second, because they failed to implement a comprehensive programme for the prevention of mother-to-child transmission of HIV.

[45]The two questions are interrelated and a consequence of government's policy as it was when these proceedings were instituted. The use of Nevirapine to reduce the risk of mother-to-child transmission of HIV was confined to mothers and newborn children at hospitals and clinics included in the research and training sites. At all other public hospitals and clinics the use of Nevirapine for this purpose was not provided for. Public hospitals and clinics outside the research and training sites were not supplied with Nevirapine for doctors to prescribe for the prevention of mother-to-child transmission. Only later would a decision be taken as to whether Nevirapine and the rest of the package would be made available elsewhere in the health system. That decision would depend upon the results at the research and training sites. The applicants contend that this is not reasonable and that government ought to have had a comprehensive national programme to prevent mother-to-child transmission of HIV, including voluntary counselling and testing, antiretroviral therapy and the option of substitute feeding.

[46]In Grootboom (supra), relying on what is said in the First Certification Judgment, this Court held that: “[a]lthough [section 26(1)] does not expressly say so, there is, at the very least, a negative obligation placed upon the State and all other entities and persons to desist from preventing or impairing the right of access to adequate housing."

That "negative obligation" applies equally to the section 27(1) right of access to "health care services, including reproductive health care". This is relevant to the challenges to the measures adopted by government for the provision of medical services to combat mother-to-child transmission of HIV.

[47]The applicants' contentions raise two questions, namely, is the policy of confining the supply of Nevirapine reasonable in the circumstances; and does government have a comprehensive policy for the prevention of mother-to-child transmission of HIV.

The policy confining Nevirapine to the research and training sites

[48]In deciding on the policy to confine Nevirapine to the research and training sites, the cost of the drug itself was not a factor. This is made clear in the affidavit of Dr Ntsaluba. He says:

"I admit that the medicine has been offered to the first to ninth respondents for free for a period of five years by the manufacturer. The driving cost for the provision of Nevirapine however is not the price to be attached to the medicine but the provision of the formula feeding for those persons who are not in a position to afford formula feeds in order to discourage breast feeding and other costs incurred to provide operational structures which are appropriately and properly geared toward counselling and testing persons who are candidates for the administration of Nevirapine."

He also says that "[t]he public health sector hospitals, as it is, are under tremendous pressure, and while it may be ideal for such doctors to go on to provide Nevirapine with the appropriate advice, counselling and follow-up care, is presently not immediately attainable. It is imperative that appropriate support structures for counselling, follow-up etc. be put in place to ensure that Nevirapine is effective and that it delivers the promised benefits."

[49]The costs that are of concern to the government are therefore the costs of providing the infrastructure for counselling and testing, of providing formula feed, vitamins and an antibiotic drug and of monitoring, during bottle-feeding, the mothers and children who have received Nevirapine. These costs are relevant to the comprehensive programme to be established at the research and training sites. They are not, however, relevant to the provision of a single dose of Nevirapine to both mother and child at the time of birth.


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[50]The implementation of a comprehensive programme to combat mother-to-child transmission of HIV, such as that provided at the research and training sites, is no doubt the ideal. The real dispute between the parties on this aspect of the case is not, however, whether this optimum was feasible but whether it was reasonable to exclude the use of Nevirapine for the treatment of mother-to-child transmission at those public hospitals and clinics where testing and counselling are available and where the administration of Nevirapine is medically indicated.

[51]In substance four reasons were advanced in the affidavits for confining the administration of Nevirapine to the research and training sites. First, concern was expressed about the efficacy of Nevirapine where the "comprehensive package" is not available. The concern was that the benefits of Nevirapine would be counteracted by the transmission of HIV from mother to infant through breastfeeding. For this reason government considered it important to provide breastmilk substitutes to the mother and a "package" of care for mother and infant including vitamin supplements and antibiotics. They considered it necessary to establish a system and to put in place the infrastructure necessary for that purpose, to provide advice and counselling to the mothers to ensure that the substitute and supplements were used properly and to monitor progress to determine the effectiveness of the treatment. There are significant problems in making this package available. There are problems of resources in so far as counselling and testing are concerned and budgetary constraints affecting the expansion of facilities at public hospitals and clinics outside the research and training sites. There is a cultural objection to bottle-feeding that has to be overcome, and in rural areas there are also hazards in bottle-feeding by mothers who do not have access to clean water. There are still millions of people living in such circumstances and effective treatment of infants by the provision of Nevirapine at birth by no means resolves all difficulties.

[52]Secondly, there was a concern that the administration of Nevirapine to the mother and her child might lead to the development of resistance to the efficacy of Nevirapine and related antiretrovirals in later years.

[53]Thirdly, there was a perceived safety issue. Nevirapine is a potent drug and it is not known what hazards may attach to its use.

[54]Finally, there was the question whether the public health system has the capacity to provide the package. It was contended on behalf of government that Nevirapine should be administered only with the "full package" and that it was not reasonably possible to do this on a comprehensive basis because of the lack of trained counsellors and counselling facilities and also budgetary constraints which precluded such a comprehensive scheme being implemented.

[55]Related to this was a submission raised in argument that from a public health point of view, there is a need to determine the costs of providing the breastmilk substitute, the supplementary package and the necessary counselling and monitoring. Without knowing the full extent of these costs and the efficacy of the treatment, it would be unwise for government to commit itself to a wide-ranging programme for treating mother-to-child transmission that might prove to be neither efficacious nor sustainable.

[56]We deal with each of these issues in turn.

Efficacy

[57]First, the concern about efficacy. It is clear from the evidence that the provision of Nevirapine will save the lives of a significant number of infants even if it is administered without the full package and support services that are available at the research and training sites. Mother-to-child transmission of HIV can take place during pregnancy, at birth and as a result of breastfeeding. The programme in issue in this case is concerned with transmission at or before birth. Although there is no dispute about the efficacy of Nevirapine in materially reducing the likelihood of transmission at birth, the efficacy of the drug as a means of combating mother-to-child transmission of HIV is nevertheless challenged. How this comes about requires some discussion.


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[58]The challenge was first expressed in the Minister's letter of 6 August 2001 which precipitated these proceedings. The first of a number of what the Minister called "[o]ur most pressing concerns" was put in the following terms:

"There is evidence that NVP is effective in the prevention of intra-partum transmission. However, there is also evidence that a percentage of the babies who, as a result of the use of NVP, are born HIV negative, nevertheless sero-convert and become HIV positive in the months that follow their birth. For this reason, the registered claim for NVP in South Africa is not that it can prevent MTCT but that it can prevent intra-partum transmission.

It appears from the data at hand that the most compelling reason for this sero-conversion is the fact that the HIV positive mothers were breast-feeding their babies."

The letter adds that: "although we do not have the formal results [of a test reported a year before], we have reason to believe that breastfeeding continues to pose a risk which reverses the benefits of medical intervention."

Then, in the answering affidavit of Dr Ntsaluba, this doubt about the efficacy of intrapartum administration of Nevirapine is repeated: "Breastfeeding is contra-indicated where Nevirapine is used to reduce or prevent MTCT of the HIV. It must be remembered that MTCT of HIV-1 through breastmilk negates all the gains of the use of Nevirapine in the mother during delivery and in the newborn child within 72 hours after birth. Thus, it is not safe to expose a largely breastfeeding populace to Nevirapine, unless certain stringent measures are taken to ensure that breastfeeding would not occur when the medicine is taken to treat MTCT of the HIV."

These allegations by the Minister in her letter and by Dr Ntsaluba are, however, not supported by the data on which Dr Ntsaluba relies. Indeed, the wealth of scientific material produced by both sides makes plain that sero-conversion of HIV takes place in some, but not all, cases and that Nevirapine thus remains to some extent efficacious in combating mother-to-child transmission even if the mother breastfeeds her baby.

Resistance

[59]As far as resistance is concerned, the only relevance is the possible need to treat the mother and/or the child at some time in the future. Although resistant strains of HIV might exist after a single dose of Nevirapine, this mutation is likely to be transient. At most there is a possibility of such resistance persisting, and although this possibility cannot be excluded, its weight is small in comparison with the potential benefit of providing a single tablet of Nevirapine to the mother and a few drops to her baby at the time of birth. The prospects of the child surviving if infected are so slim and the nature of the suffering so grave that the risk of some resistance manifesting at some time in the future is well worth running.

Safety

[60]The evidence shows that safety is no more than a hypothetical issue. The only evidence of potential harm concerns risks attaching to the administration of Nevirapine as a chronic medication on an ongoing basis for the treatment of HIV-positive persons. There is, however, no evidence to suggest that a dose of Nevirapine to both mother and child at the time of birth will result in any harm to either of them. According to the current medical consensus, there is no reason to fear any harm from this particular administration of Nevirapine. That is why its use is recommended without qualification for this purpose by the World Health Organisation.

[61]There is also cogent South African endorsement of the safety of Nevirapine in general and specifically for the prevention of mother-to-child transmission. As indicated earlier, the Medicines Control Council registered Nevirapine in 1998 (affirming its quality, safety and efficacy) and later expressly approved its administration to mother and infant at the time of birth in order to combat HIV. Although it recommends that if this is done the infant should be bottle-fed and not breastfed, that is to enhance the efficacy of


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Nevirapine and not because it is considered to be dangerous. The risk to be guarded against is the transmission of HIV from mother to child through breastfeeding. That is a risk that exists whether Nevirapine is administered or not. Far from being harmful, there is evidence that even with breastfeeding the risk of infection is materially reduced by administering Nevirapine at birth.

[62]The decision by government to provide Nevirapine to mothers and infants at the research and training sites is consistent only with government itself being satisfied as to the efficacy and safety of the drug. These sites cater for approximately 10% of all births in the public sector and it is unthinkable that government would gamble with the lives or health of thousands of mothers and infants. In any event, the research and training sites are intended primarily to train staff and to study the operational problems of the comprehensive prevention of mother-to-child transmission package. As to the research component at these sites, it is intended to focus on the efficacy of the treatment rather than its safety. There is no evidence to suggest that a single dose of Nevirapine administered at birth is likely to harm children during the first two years of their lives. The risk of Nevirapine causing harm to infants in the public health sector outside the research and training sites can be no greater than the risk that exists at such a site or where it is administered by medical practitioners in the private sector.

[63]In any event the main thrust of government's case was that Nevirapine should be administered in circumstances in which it would be most effective, not that it should not be administered because it is dangerous. Dr Ntsaluba seems to acknowledge this in his affidavit where he says:

"As I have pointed out earlier, to extend the programme to every hospital in each province is practically and financially not feasible. It would have been ideal but while that is a goal that the First to Ninth Respondents are working towards, it is not implementable at once."

[64]It is this that lies at the heart of government policy. There are obviously good reasons from the public health point of view to monitor the efficacy of the "full package" provided at the research and training sites and determine whether the costs involved are warranted by the efficacy of the treatment. There is a need to determine whether bottle-feeding will be implemented in practice when such advice is given and whether it will be implemented in a way that proves to be more effective than breastfeeding, bearing in mind the cultural problems associated with bottle-feeding, the absence of clean water in certain parts of the country and the fact that breastfeeding provides immunity from other hazards that infants growing up in poor households without access to adequate nutrition and sanitation are likely to encounter. However, this is not a reason for not allowing the administration of Nevirapine elsewhere in the public health system when there is the capacity to administer it and its use is medically indicated.

Capacity

[65]According to Dr Simelela, there have been significant problems even at the research and training sites in providing a comprehensive programme using Nevirapine for the prevention of mother-to-child transmission. A lack of adequately trained personnel, including counsellors, a shortage of space for conducting counselling and inadequate resources due to budgetary constraints made it impossible to provide such a programme.

[66]Although the concerns raised by Dr Simelela are relevant to the ability of government to make a "full package" available throughout the public health sector, they are not relevant to the question whether Nevirapine should be used to reduce mother-to-child transmission of HIV at those public hospitals and clinics outside the research sites where facilities in fact exist for testing and counselling.

Considerations relevant to reasonableness

[67]The policy of confining Nevirapine to research and training sites fails to address the needs of mothers and their newborn children who do not have access to these sites. It fails to distinguish between the evaluation of programmes for reducing mother-to-child transmission and the need to provide access to health care services required by those who do not have access to the sites.


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[68]In Grootboom (supra) this Court held that: "[t]o be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right."

The fact that the research and training sites will provide crucial data on which a comprehensive programme for mother-to-child transmission can be developed and, if financially feasible, implemented is clearly of importance to government and to the country. So too is ongoing research into safety, efficacy and resistance. This does not mean, however, that until the best programme has been formulated and the necessary funds and infrastructure provided for the implementation of that programme, Nevirapine must be withheld from mothers and children who do not have access to the research and training sites. Nor can it reasonably be withheld until medical research has been completed. A programme for the realisation of socio-economic rights must "be balanced and flexible and make appropriate provision for attention to ... crises and to short, medium and long term needs. A programme that excludes a significant segment of society cannot be said to be reasonable."

[69]The applicants do not suggest that Nevirapine should be administered indiscriminately to mothers and babies throughout the public sector. They accept that the drug should be administered only to mothers who are shown to be HIV-positive and that it should not be administered unless it is medically indicated and, where necessary, counselling is available to the mother to enable her to take an informed decision as to whether or not to accept the treatment recommended. Those conditions form part of the order made by the High Court.

[70]In dealing with these questions it must be kept in mind that this case concerns particularly those who cannot afford to pay for medical services. To the extent that government limits the supply of Nevirapine to its research sites, it is the poor outside the catchment areas of these sites who will suffer. There is a difference in the positions of those who can afford to pay for services and those who cannot. State policy must take account of these differences.

[71]The cost of Nevirapine for preventing mother-to-child transmission is not an issue in the present proceedings. It is admittedly within the resources of the State. The relief claimed by the applicants on this aspect of the policy, and the order made by the High Court in that regard, contemplate that Nevirapine will only be administered for the prevention of mother-to-child transmission at those hospitals and clinics where testing and counselling facilities are already in place. Therefore this aspect of the claim and the orders made will not attract any significant additional costs.

[72]In evaluating government's policy, regard must be had to the fact that this case is concerned with newborn babies whose lives might be saved by the administration of Nevirapine to mother and child at the time of birth. The safety and efficacy of Nevirapine for this purpose have been established and the drug is being provided by government itself to mothers and babies at the pilot sites in every province.

[73]The administration of Nevirapine is a simple procedure. Where counselling and testing facilities exist, the administration of Nevirapine is well within the available resources of the State and, in such circumstances, the provision of a single dose of Nevirapine to mother and child where medically indicated is a simple, cheap and potentially lifesaving medical intervention.

Children's rights

[74]There is another consideration that is material. This case is concerned with newborn children. Sections 28(1)(b) and (c) of the Constitution provide that "[e]very child has the right - (a)... (b)to family care or parental care, or to appropriate alternative care when removed from the family environment; (c)to basic nutrition, shelter, basic health care services and social services."

The applicants and the amici curiae relied on these provisions to support the order made by the High Court.


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[75]In Grootboom (supra) it was held that paragraphs (b) and (c) must be read together.

"They ensure that children are properly cared for by their parents or families, and that they receive appropriate alternative care in the absence of parental or family care. The section encapsulates the conception of the scope of care that children should receive in our society. Subsection 1(b) defines those responsible for giving care while subsection 1(c) lists various aspects of the care entitlement.

It follows from subsection 1(b) that the Constitution contemplates that a child has the right to parental or family care in the first place, and the right to alternative appropriate care only where that is lacking."

[76]Counsel for the government, relying on these passages in the Grootboom judgment, submitted that section 28(1)(c) imposes an obligation on the parents of the newborn child, and not the State, to provide the child with the required basic health care services.

[77]While the primary obligation to provide basic health care services no doubt rests on those parents who can afford to pay for such services, it was made clear in Grootboom that: "[t]his does not mean ... that the State incurs no obligation in relation to children who are being cared for by their parents or families."

[78]The provision of a single dose of Nevirapine to mother and child for the purpose of protecting the child against the transmission of HIV is, as far as the children are concerned, essential. Their needs are "most urgent" and their inability to have access to Nevirapine profoundly affects their ability to enjoy all rights to which they are entitled. Their rights are "most in peril" as a result of the policy that has been adopted and are most affected by a rigid and inflexible policy that excludes them from having access to Nevirapine.

[79]The State is obliged to ensure that children are accorded the protection contemplated by section 28 that arises when the implementation of the right to parental or family care is lacking. Here we are concerned with children born in public hospitals and clinics to mothers who are for the most part indigent and unable to gain access to private medical treatment which is beyond their means. They and their children are in the main dependent upon the State to make health care services available to them.

Evaluation of the policy to limit Nevirapine to research and training sites

[80]Government policy was an inflexible one that denied mothers and their newborn children at public hospitals and clinics outside the research and training sites the opportunity of receiving a single dose of Nevirapine at the time of the birth of the child. A potentially lifesaving drug was on offer and where testing and counselling facilities were available it could have been administered within the available resources of the State without any known harm to mother or child. In the circumstances we agree with the finding of the High Court that the policy of government in so far as it confines the use of Nevirapine to hospitals and clinics which are research and training sites constitutes a breach of the State's obligations under section 27(2) read with section 27(1)(a) of the Constitution.

[81]Implicit in this finding is that a policy of waiting for a protracted period before taking a decision on the use of Nevirapine beyond the research and training sites is also not reasonable within the meaning of section 27(2) of the Constitution.

Does government have a comprehensive plan to combat mother-to-child transmission of HIV?

[82]The issues relating to the alleged failure to implement a comprehensive national programme for the prevention of mother-to-child transmission are intertwined with the averments concerning the refusal to permit Nevirapine to be prescribed at public hospitals and clinics outside the research and training sites. Foundational to all aspects of the case was the challenge to the policy concerning the use of Nevirapine.

[83]Because of the policy restricting the use of Nevirapine, the counsellors at the hospitals and clinics outside the research and training sites have had no training in its use for the prevention of mother-to-child transmission of HIV. That, however, should not be a major concern. According to the National programme for the prevention of mother to child transmission of HIV (MTCT): Trainer's guide, the total


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training time required to prepare counsellors for the mother-to-child transmission programme is 15 hours spread over 10 sessions of 11/2 hours each. For counsellors who are already trained in the programme and merely need to be updated regarding the use of Nevirapine, the time must be very much shorter.

[84]It is therefore important to know what facilities exist outside the research and training sites for testing and counselling. The applicants alleged in the founding affidavit that testing and counselling were not comprehensively available outside the research and training sites. This allegation was not substantiated by any direct evidence and most of the evidence was directed to government's policy concerning Nevirapine, the central issue in the case. The allegation that there was no programme dealing with mother-to-child transmission outside the research and training sites was denied by Dr Ntsaluba. He referred to a number of policy documents which deal with this topic. These documents include the HIV/AIDS & STD strategic plan for South Africa 2000-2005. Various goals and strategies are set out in this plan. Strategies include introducing counselling services in all new testing sites, expanding the use of rapid testing methods, increasing the proportion of workplaces that have counselling services and promoting access to such services.

[85]Reference is also made to a policy document dealing with managing HIV in children. This document is dated March 2000 and includes a section on reducing mother-to-child transmission which deals with a number of interventions. These include voluntary counselling and HIV testing of pregnant women. It is stated that "all pregnant women should be offered counselling and an HIV test" and a detailed rationale is given.

[86]Another policy document dated May 2000 states explicitly that "[v]oluntary testing and counselling must be made available to all pregnant women" (emphasis added). It goes on to say that the benefits to a woman of knowing her HIV status include the ability to make informed choices about feeding options, earlier access to care for both mother and child, the opportunity to terminate pregnancy where desired and legal, and the ability to make informed decisions about sexual practices and future fertility.

[87]In August of the same year there was a further policy document dealing with the feeding of infants of HIV-positive mothers. It proceeds on the assumption that voluntary counselling and testing for HIV are necessary. In the same month policy guidelines for such testing were prescribed. It is made clear that testing cannot be carried out without informed consent, including pre-test counselling. It does not focus on where or to what extent counselling should be available, except to say that where a health facility lacks the appropriate pre- or post-test counselling facilities, the patient should be referred to an agency or facility that can provide the counselling.

[88]In their replying affidavits the applicants do not seek to contradict these policy documents, but say that if correct they show latent capacity outside the research and training sites to prescribe Nevirapine for prevention of mother-to-child transmission where it is medically indicated. They also introduce an affidavit by Professor Schneider to show that testing and counselling facilities, though not available throughout the public health sector, are in fact widely available at hospitals and clinics outside the research and training sites. Government does not dispute this but says that such counsellors are not trained in counselling for the use of Nevirapine for the reduction of mother-to-child transmission.

[89]The affidavits by the heads of the provincial health departments deal with their budgets and the difficulties confronting them in expanding existing facilities for addressing mother-to-child transmission and in training counsellors. What is apparent from these affidavits is that some provinces had more extensive facilities for testing and counselling than others; also that at the time the proceedings commenced the budgets of most of the health departments were strained, and in many parts of the country there were problems in implementing health policies.

Testing and counselling

[90]The evidence shows that at the time of the commencement of these proceedings there was in place a comprehensive policy for testing and counselling of HIV-positive pregnant women. The policy was not,


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however, implemented uniformly. Professor Schneider's research is the only evidence on record concerning the extent of the testing and counselling facilities at fixed clinics in the provinces. She refers to a number of studies - particularly two surveys conducted by the Health Systems Trust in 1998 and 2000. (…)

It is not clear whether these statistics include facilities at public hospitals, or whether it is assumed that such facilities exist there and that what was being addressed was the extent of the facilities at places other than hospitals. The statistics are relevant in any event because a significant proportion of pregnant women are counselled at clinics and treated there. Indeed, over 84% of South African women deliver in the health system, that is, under the supervision of a health professional.

Formula-feeding

[91]Some of the policy documents also refer to the substitution of formula-feeding for breastfeeding without setting that as policy. The HIV/AIDS policy guideline on prevention of mother-to-child HIV transmission and management of HIV positive pregnant women (May 2000) states in its introduction that appropriate alternatives to breastfeeding should be made available and affordable for HIV-positive women. Professor Schneider's research shows that many hospitals and clinics have stocks of formula feed to be provided as a substitute for breastfeeding where appropriate. It is not clear, however, that a policy commitment is made to achieving this.

In none of the policy documents is it said that government will actually provide the formula feed. The furthest that the policy on the provision of feeding substitutes seems to go is the statement in the HIV/AIDS policy guideline on feeding of infants of HIV positive mothers (August 2000) which indicates that the policy concerning the provision of breastmilk substitutes (such as infant formula feed) by the health care services needs to be taken up by the provincial authorities and by any other relevant authority. The point is made here that the cost of providing breastmilk substitutes must also be compared with or offset by the savings in preventing newborn babies being infected with HIV and consequently needing care.

Summary of the relevant evidence

[92]To sum up, the position when the application was launched was this. Two research and training sites had been selected at hospitals in each province to use Nevirapine for the prevention of mother-to-child transmission of HIV. These research and training sites were linked to access points at satellite clinics. There were approximately 160 access points. (During the course of the proceedings these had increased to over 200.) At the project hospitals and satellite clinics a full package for the treatment of mother-to-child transmission was to be available. This included testing, counselling, Nevirapine if medically indicated, the provision of formula feed as a substitute for breastfeeding, aftercare including the provision of vitamins and antibiotics, and monitoring of the progress of the children. At all other public hospitals and clinics Nevirapine would not be available. There was, however, to be a programme for testing and counselling, including counselling on matters related to breastfeeding. Formula feed was available at some hospitals and clinics but it was not a requirement of the programme to combat mother-to-child transmission outside the research and training sites that it be made available to HIV-positive mothers of newborn babies who would like to avoid breastfeeding but cannot afford the formula feed. Although the programme envisaged the progressive establishment of testing and counselling facilities at all hospitals and clinics, progress had been slow in certain parts of the country, particularly in clinics in the Northern Province, Mpumalanga, the Eastern Cape and KwaZulu-Natal. The bulk of the rural population lives in these provinces where millions of people are still without access to clean water or adequate sanitation.

Findings concerning government's programme

[93]In the present case this Court has the duty to determine whether the measures taken in respect of the prevention of mother-to-child transmission of HIV are reasonable. We know that throughout the country health services are overextended. HIV/AIDS is but one of many illnesses that require attention. It is,


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however, the greatest threat to public health in our country. As the government's HIV/AIDS & STD strategic plan for South Africa 2000-2005 states: "During the last two decades, the HIV pandemic has entered our consciousness as an incomprehensible calamity. HIV/AIDS has claimed millions of lives, inflicting pain and grief, causing fear and uncertainty, and threatening the economy."

[94]We are also conscious of the daunting problems confronting government as a result of the pandemic. And besides the pandemic, the State faces huge demands in relation to access to education, land, housing, health care, food, water and social security. These are the socio-economic rights entrenched in the Constitution, and the State is obliged to take reasonable legislative and other measures within its available resources to achieve the progressive realisation of each of them. In the light of our history this is an extraordinarily difficult task. Nonetheless it is an obligation imposed on the State by the Constitution.

[95]The rigidity of government's approach when these proceedings commenced affected its policy as a whole. If, as we have held, it was not reasonable to restrict the use of Nevirapine to the research and training sites, the policy as a whole will have to be reviewed. Hospitals and clinics that have testing and counselling facilities should be able to prescribe Nevirapine where that is medically indicated. The training of counsellors ought now to include training for counselling on the use of Nevirapine. As previously indicated, this is not a complex task and it should not be difficult to equip existing counsellors with the necessary additional knowledge. In addition, government will need to take reasonable measures to extend the testing and counselling facilities to hospitals and clinics throughout the public health sector beyond the test sites to facilitate and expedite the use of Nevirapine for the purpose of reducing the risk of mother-to-child transmission of HIV.

The powers of the courts

[96]Counsel for the government contended that even if this Court should find that government policies fall short of what the Constitution requires, the only competent order that a court can make is to issue a declaration of rights to that effect. That leaves government free to pay heed to the declaration made and to adapt its policies in so far as this may be necessary to bring them into conformity with the court's judgment. This, so the argument went, is what the doctrine of separation of powers demands.

[97]In developing this argument counsel contended that under the separation of powers the making of policy is the prerogative of the executive and not the courts, and that courts cannot make orders that have the effect of requiring the executive to pursue a particular policy.

[98]This Court has made it clear on more than one occasion that although there are no bright lines that separate the roles of the legislature, the executive and the courts from one another, there are certain matters that are pre-eminently within the domain of one or other of the arms of government and not the others. All arms of government should be sensitive to and respect this separation. This does not mean, however, that courts cannot or should not make orders that have an impact on policy.

[99]The primary duty of courts is to the Constitution and the law, "which they must apply impartially and without fear, favour or prejudice". The Constitution requires the State to "respect, protect, promote, and fulfil the rights in the Bill of Rights". Where State policy is challenged as inconsistent with the Constitution, courts have to consider whether in formulating and implementing such policy the State has given effect to its constitutional obligations. If it should hold in any given case that the State has failed to do so, it is obliged by the Constitution to say so. In so far as that constitutes an intrusion into the domain of the executive, that is an intrusion mandated by the Constitution itself. There is also no merit in the argument advanced on behalf of government that a distinction should be drawn between declaratory and mandatory orders against government. Even simple declaratory orders against government or organs of State can affect their policy and may well have budgetary implications. Government is constitutionally bound to give effect to such orders whether or not they affect its policy and has to find the resources to do so. Thus, in the Mpumalanga case, this Court set aside a provincial government's policy decision to terminate the payment of subsidies to certain schools and ordered that payments should continue for


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several months. Also, in the case of August the Court, in order to afford prisoners the right to vote, directed the Electoral Commission to alter its election policy, planning and regulations, with manifest cost implications.

[100]The rights that the State is obliged to "respect, protect, promote and fulfil" include the socio-economic rights in the Constitution. In Grootboom this Court stressed that in so far as socio-economic rights are concerned "[t]he State is required to take reasonable legislative and other measures. Legislative measures by themselves are not likely to constitute constitutional compliance. Mere legislation is not enough. The State is obliged to act to achieve the intended result, and the legislative measures will invariably have to be supported by appropriate, well-directed policies and programmes implemented by the Executive. These policies and programmes must be reasonable both in their conception and their implementation. The formulation of a programme is only the first stage in meeting the State's obligations. The programme must also be reasonably implemented. An otherwise reasonable programme that is not implemented reasonably will not constitute compliance with the State's obligations."

[101]A dispute concerning socio-economic rights is thus likely to require a court to evaluate State policy and to give judgment on whether or not it is consistent with the Constitution. If it finds that policy is inconsistent with the Constitution it is obliged in terms of section 172(1)(a) to make a declaration to that effect. But that is not all. Section 38 of the Constitution contemplates that where it is established that a right in the Bill of Rights has been infringed a court will grant "appropriate relief". It has wide powers to do so and in addition to the declaration that it is obliged to make in terms of section 172(1)(a) a court may also "make any order that is just and equitable".

[102]In Fose v Minister of Safety and Security this Court held that: "[a]ppropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all-important rights."

The judgment (per Ackermann J) went on to State: "I have no doubt that this Court has a particular duty to ensure that, within the bounds of the Constitution, effective relief be granted for the infringement of any of the rights entrenched in it. In our context an appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying and the right entrenched in the Constitution cannot properly be upheld or enhanced. Particularly in a country where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. The courts have a particular responsibility in this regard and are obliged to 'forge new tools' and shape innovative remedies, if needs be, to achieve this goal."

[103]In Mohamed v President of the RSA, this Court dealt with an argument similar to that addressed to us by counsel for the appellants, in these terms:

"Nor would it necessarily be out of place for there to be an appropriate order on the relevant organs of State in South Africa to do whatever may be within their power to remedy the wrong here done to Mohamed by their actions, or to ameliorate at best the consequential prejudice caused to him. To stigmatise such an order as a breach of the separation of State power as between the Executive and the Judiciary is to negate a foundational value of the Republic of South Africa, namely supremacy of the Constitution and the rule of law. The Bill of Rights, which we find to have been infringed, is binding on all organs of State and it is our constitutional duty to ensure that appropriate relief is afforded to those who have suffered infringement of their constitutional rights."


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[104]The power to grant mandatory relief includes the power where it is appropriate to exercise some form of supervisory jurisdiction to ensure that the order is implemented. In Pretoria City Council v Walker, Langa DP said:

"[T]he respondent could, for instance, have applied to an appropriate court for a declaration of rights or a mandamus in order to vindicate the breach of his s 8 right. By means of such an order the council could have been compelled to take appropriate steps as soon as possible to eliminate the unfair differentiation and to report back to the Court in question. The Court would then have been in a position to give such further ancillary orders or directions as might have been necessary to ensure the proper execution of its order."

[105]This Court has said on other occasions that it is also within the power of courts to make a mandatory order against an organ of State and has done so itself. For instance, in the Dawood case (supra), a mandamus was issued directing the Director-General of Home Affairs and immigration officials to exercise the discretion conferred upon them in a manner that took account of the constitutional rights involved. In the August case (supra) a mandatory order, coupled with an injunction to submit a detailed plan for public scrutiny, was issued by this Court against an organ of State - the Electoral Commission.

[106]We thus reject the argument that the only power that this Court has in the present case is to issue a declaratory order. Where a breach of any right has taken place, including a socio-economic right, a court is under a duty to ensure that effective relief is granted. The nature of the right infringed and the nature of the infringement will provide guidance as to the appropriate relief in a particular case. Where necessary this may include both the issuing of a mandamus and the exercise of supervisory jurisdiction.

[107]An examination of the jurisprudence of foreign jurisdictions on the question of remedies shows that courts in other countries also accept that it may be appropriate, depending on the circumstances of the particular case, to issue injunctive relief against the State. In the United States, for example, frequent use has been made of the structural injunction - a form of supervisory jurisdiction exercised by the courts over a government agency or institution. Most famously, the structural injunction was used in the case of Brown v Board of Education where the US Supreme Court held that lower courts would need to retain jurisdiction of Brown (supra) and similar cases. These lower courts would have the power to determine how much time was necessary for the school boards to achieve full compliance with the court's decision and would also be able to consider the adequacy of any plan proposed by the school boards "to effectuate a transition to a racially non-discriminatory school system".

[108]Even a cursory perusal of the relevant Indian case law demonstrates a willingness on the part of the Indian courts to grant far-reaching remedial orders. Most striking in this regard is the decision in MC Mehta v State of Tamil Nadu and Others where the Supreme Court granted a wide-ranging order concerning child labour that included highly detailed mandatory and structural injunctions.

[109]Although decisions of the German Federal Constitutional Court are mostly in the form of declaratory orders, the Court also has the power to prescribe for a temporary period which steps have to be taken in order to create a situation in conformity with the Basic Law. The most far-reaching execution order was probably that made by the Court in the Second Abortion Case, declaring several provisions of the Criminal Code unconstitutional and void and replacing them by a detailed interim law to remain in place until new legislation came into force.

[110]In Canada, it appears that both the supreme and the lower courts have the power to issue mandatory orders against organs of State. Canadian courts have, however, tended to be relatively cautious in this regard. For example, in Eldridge v British Columbia (Attorney General), the Supreme Court of Canada considered a declaration of unconstitutionality preferable to "some kind of injunctive relief" on the basis that "there are myriad options available to the government that may rectify the unconstitutionality of the current system". The Canadian courts have also tended to be wary of using the structural injunction.


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[111]In the United Kingdom, although injunctive relief may be granted against officers of the Crown, the House of Lords has held that this should only be done in the "most limited circumstances. In the majority of situations so far as final relief is concerned, a declaration will continue to be the appropriate remedy on an application for judicial review involving officers of the Crown. As has been the position in the past, the Crown can be relied upon to co-operate fully with such declarations."

[112]What this brief survey makes clear is that in none of the jurisdictions surveyed is there any suggestion that the granting of injunctive relief breaches the separation of powers. The various courts adopt different attitudes to when such remedies should be granted, but all accept that within the separation of powers they have the power to make use of such remedies - particularly when the State's obligations are not performed diligently and without delay.

[113]South African courts have a wide range of powers at their disposal to ensure that the Constitution is upheld. These include mandatory and structural interdicts. How they should exercise those powers depends on the circumstances of each particular case. Here due regard must be paid to the roles of the legislature and the executive in a democracy. What must be made clear, however, is that when it is appropriate to do so, courts may - and if need be must - use their wide powers to make orders that affect policy as well as legislation.

[114]A factor that needs to be kept in mind is that policy is and should be flexible. It may be changed at any time and the executive is always free to change policies where it considers it appropriate to do so. The only constraint is that policies must be consistent with the Constitution and the law. Court orders concerning policy choices made by the executive should therefore not be formulated in ways that preclude the executive from making such legitimate choices.

Circumstances relevant to the order to be made

[115]The finding made concerning the restricted use of Nevirapine has implications for government's policy on the prevention of mother-to-child transmission of HIV. If Nevirapine is now made available at all State hospitals and clinics where there are testing and counselling facilities, that will call for a change in policy. The policy will have to be that Nevirapine must be provided where it is medically indicated at those hospitals and clinics within the public sector where facilities exist for testing and counselling.

[116]At the time the proceedings were instituted, the provincial health authorities charged with the responsibility of implementing the programme for testing and counselling attributed their failure to do this to constraints relating to capacity. There were financial constraints owing to limited budgets and there was also a shortage of suitably trained persons to undertake testing and counselling. The question whether budgetary constraints provided a legitimate reason for not implementing a comprehensive policy for the use of Nevirapine, including testing and counselling, was disputed. It was contended that the use of Nevirapine would result in significant savings in later years because it would reduce the number of HIV-positive children who would otherwise have to be treated in the public health system for all the complications caused by that condition.

[117]In the view that we take of this matter it is not necessary to deal with that issue. Conditions have changed since these proceedings were initiated. This is relevant to the order that should follow upon the findings now made.

[118]During the course of these proceedings the State's policy has evolved and is no longer as rigid as it was when the proceedings commenced. By the time this appeal was argued, six hospitals and three community health care centres had already been added in Gauteng to the two research and training sites initially established and it was contemplated that during the course of this year Nevirapine would be available throughout the province for the treatment of mother-to-child transmission. Likewise, in KwaZulu-Natal there was a change of policy towards the supply of Nevirapine at public health institutions outside the test sites. According to a statement by the provincial MEC for Health referred to by Dr Ntsaluba at the time of the interlocutory proceedings:


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"The proposal that we will table is that of a phased approach consisting of three phases, in which the current study is the first phase ...

The second phase will be the provision of this service at all major hospitals in every district, in total 27 of them. This we believe will bring access of this service to the majority of the people of our province while at the same time ensuring that the programme is not interrupted and remains sustainable. We are targeting that all these must have commenced by August ...The remaining hospitals they will only be given attention by March 2003 ...These hospitals will be given 6 months to work out whatever teething problems and settle in the programme before phasing the second phase, March 2003.

The third phase to complete the roll out of the programme incorporating all institutions in the province and their feeder clinics, will also be approached in the same manner."

[119]These developments clearly demonstrate that, provided the requisite political will is present, the supply of Nevirapine at public health institutions can be rapidly expanded to reach many more than the 10% of the population intended to be catered for in terms of the test site policy.

[120]But more importantly, we were informed at the hearing of the appeal that the government has made substantial additional funds available for the treatment of HIV, including the reduction of mother-to-child transmission. The total budget to be spent mainly through the departments of Health, Social Development and Education was R350 million in 2001/2. It has been increased to R1 billion in the current financial year and will go up to R1,8 billion in 2004/5. This means that the budgetary constraints referred to in the affidavits are no longer an impediment. With the additional funds that are now to be available, it should be possible to address any problems of financial incapacity that might previously have existed.

[121]We have earlier referred to section 172(1)(a) of the Constitution, which requires a court deciding a constitutional matter to "declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency". A declaration to that effect must therefore be made in this matter. The declaration must be in a form which identifies the constitutional infringement. Whether remedial action must also be specified is a separate question involving a different enquiry.

[122]In the present case we have identified aspects of government policy that are inconsistent with the Constitution. The decision not to make Nevirapine available at hospitals and clinics other than the research and training sites is central to the entire policy. Once that restriction is removed, government will be able to devise and implement a more comprehensive policy that will give access to health care services to HIV-positive mothers and their newborn children, and will include the administration of Nevirapine where that is appropriate. The policy as reformulated must meet the constitutional requirement of providing reasonable measures within available resources for the progressive realisation of the rights of such women and newborn children. This may also require, where that is necessary, that counsellors at places other than at the research and training sites be trained in counselling for the use of Nevirapine. We will formulate a declaration to address these issues.

Transparency

[123]Three of the nine provinces have publicly announced programmes to realise progressively the rights of pregnant women and their newborn babies to have access to Nevirapine treatment. As for the rest, no programme has been disclosed by either the Minister or any of the other six MECs, this notwithstanding the pertinent request from the TAC in July 2001 and the subsequent lodging of hundreds of pages of affidavits and written legal argument. This is regrettable. The magnitude of the HIV/AIDS challenge facing the country calls for a concerted, co-ordinated and co-operative national effort in which government in each of its three spheres and the panoply of resources and skills of civil society are marshalled, inspired and led. This can be achieved only if there is proper communication, especially by government. In order for it to be implemented optimally, a public health programme must be made known effectively to all concerned, down to the district nurse and patients. Indeed, for a public programme such


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as this to meet the constitutional requirement of reasonableness, its contents must be made known appropriately.

Relief

[124]What remains to be considered is whether it is appropriate in the circumstances of the present case to grant further relief. We have come to the conclusion that it is appropriate to do so, though in terms differing from the orders made by the High Court.

[125]It is essential that there be a concerted national effort to combat the HIV/AIDS pandemic. The government has committed itself to such an effort. We have held that its policy fails to meet constitutional standards because it excludes those who could reasonably be included where such treatment is medically indicated to combat mother-to-child transmission of HIV. That does not mean that everyone can immediately claim access to such treatment, although the ideal, as Dr Ntsaluba says, is to achieve that goal. Every effort must, however, be made to do so as soon as reasonably possible. The increases in the budget to which we have referred will facilitate this.

[126]We consider it important that all sectors of the community, in particular civil society, should co-operate in the steps taken to achieve this goal. In our view that will be facilitated by spelling out the steps necessary to comply with the Constitution.

[127]We will do this on the basis of the policy that government has adopted as the best means of combating mother-to-child transmission of HIV, which is to make use of Nevirapine for this purpose. Government must retain the right to adapt the policy, consistent with its constitutional obligations, should it consider it appropriate to do so. The order that we make has regard to this.

[128]We do not consider it appropriate to deal with the use of formula feed in the order. Whether it is desirable to use this substitute rather than breastfeeding raises complex issues, particularly when the mother concerned may not have easy access to clean water or the ability to adopt a bottle-feeding regimen because of her personal circumstances. The result of the studies conducted at the research and training sites may enable government to formulate a comprehensive policy in this regard. In the meantime this must be left to health professionals to address during counselling. We do not consider that there is sufficient evidence to justify an order that formula feed must be made available by the government on request and without charge in every case.

[129]The order made by the High Court included a structural interdict requiring the appellants to revise their policy and to submit the revised policy to the court to enable it to satisfy itself that the policy was consistent with the Constitution. In Pretoria City Council (supra) this Court recognised that courts have such powers. In appropriate cases they should exercise such a power if it is necessary to secure compliance with a court order. That may be because of a failure to heed declaratory orders or other relief granted by a court in a particular case. We do not consider, however, that orders should be made in those terms unless this is necessary. The government has always respected and executed orders of this Court. There is no reason to believe that it will not do so in the present case.

[130]The anxiety of the applicants to have the government move as expeditiously as possible in taking measures to reduce the transmission of HIV from mother to child is understandable. One is dealing here with a deadly disease. Once a drug that has the potential to reduce mother-to-child transmission is available, it is desirable that it be made available without delay to those who urgently need it.

[131]We do not underestimate the nature and extent of the problem facing government in its fight to combat HIV/AIDS and, in particular, to reduce the transmission of HIV from mother to child. We also understand the need to exercise caution when dealing with a potent and a relatively unknown drug. But the nature of the problem is such that it demands urgent attention. Nevirapine is a potentially lifesaving drug. Its safety and efficacy have been established. There is a need to assess operational challenges for the best possible use of Nevirapine on a comprehensive scale to reduce the risk of mother-to-child transmission of


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HIV. There is an additional need to monitor issues relevant to the safety and efficacy of and resistance to the use of Nevirapine for this purpose. There is, however, also a pressing need to ensure that where possible loss of life is prevented in the meantime.

[132]Government policy is now evolving. Additional sites where Nevirapine is provided with a "full package" to combat mother-to-child transmission of HIV are being added. In the Western Cape, Gauteng and KwaZulu-Natal, programmes have been adopted to extend the supply of Nevirapine for such purpose throughout the province. What now remains is for the other provinces to follow suit. The order that we make will facilitate this.

[133]It is necessary that the government programme, as supplemented to comply with the requirements of this judgment, be communicated to health caregivers in all public facilities and to the beneficiaries of the programme. Having regard to the nature of the problem, the steps that have to be taken to comply with the order that we make should be taken without delay…

Orders

[135]We accordingly make the following orders: …

2.It is declared that:

(a)Sections 27(1) and (2) of the Constitution require the government to devise and implement within its available resources a comprehensive and co-ordinated programme to realise progressively the rights of pregnant women and their newborn children to have access to health services to combat mother-to-child transmission of HIV.

(b)The programme to be realised progressively within available resources must include reasonable measures for counselling and testing pregnant women for HIV, counselling HIV-positive pregnant women on the options open to them to reduce the risk of mother-to-child transmission of HIV, and making appropriate treatment available to them for such purposes.

(c)The policy for reducing the risk of mother-to-child transmission of HIV as formulated and implemented by government fell short of compliance with the requirements in subparagraphs (a) and (b) in that:

(i)Doctors at public hospitals and clinics other than the research and training sites were not enabled to prescribe Nevirapine to reduce the risk of mother-to-child transmission of HIV even where it was medically indicated and adequate facilities existed for the testing and counselling of the pregnant women concerned.

(ii)The policy failed to make provision for counsellors at hospitals and clinics other than at research and training sites to be trained in counselling for the use of Nevirapine as a means of reducing the risk of mother-to-child transmission of HIV.

3.Government is ordered without delay to:

(a)Remove the restrictions that prevent Nevirapine from being made available for the purpose of reducing the risk of mother-to-child transmission of HIV at public hospitals and clinics that are not research and training sites.

(b)Permit and facilitate the use of Nevirapine for the purpose of reducing the risk of mother-to-child transmission of HIV and to make it available for this purpose at hospitals and clinics when in the judgment of the attending medical practitioner acting in consultation with the medical superintendent of the facility concerned this is medically indicated, which shall if necessary include that the mother concerned has been appropriately tested and counselled.

(c)Make provision if necessary for counsellors based at public hospitals and clinics other than the research and training sites to be trained for the counselling necessary for the use of Nevirapine to reduce the risk of mother-to-child transmission of HIV.


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(d)Take reasonable measures to extend the testing and counselling facilities at hospitals and clinics throughout the public health sector to facilitate and expedite the use of Nevirapine for the purpose of reducing the risk of mother-to-child transmission of HIV.

4.The orders made in paragraph 3 do not preclude government from adapting its policy in a manner consistent with the Constitution if equally appropriate or better methods become available to it for the prevention of mother-to-child transmission of HIV. …

D. Khosa v Minister of Social Development, 2004


Mokgoro J

[1]These two cases concern a constitutional challenge to certain provisions of the Social Assistance Act 59 of 1992 (the Act). They were referred to this Court for the confirmation of orders of constitutional invalidity arising from similar applications brought in the Transvaal Provincial Division of the High Court (the High Court). The applicants in both matters are permanent residents. In the one application, Khosa and Others v The Minister of Social Development and Others (the Khosa matter), the applicants challenged the constitutionality of section 3(c) of the Act which reserves social grants for aged South African citizens. Similarly, in the other application, Mahlaule and another v The Minister of Social Development and Others (the Mahlaule matter), the constitutional challenge was to sections 4(b)(ii) and 4B(b)(ii) of the Act, as amended by the Welfare Laws Amendment Act 106 of 1997 (Welfare Laws Amendment Act), which similarly reserve child-support grants and care-dependency grants respectively for South African citizens only. The respondents in both matters are the Minister of Social Development, the Director-General of Social Development and the Member of the Executive Committee for Health and Welfare in the Northern Province. Because the two matters are related and involve similar considerations and arguments of law, they were heard together both in the High Court and in this Court.

Factual background

[2]The applicants in both matters are Mozambican citizens who have acquired permanent residence status in South Africa in terms of exemptions granted to them under the now repealed Aliens Control Act 96 of 1991. All of the applicants in both matters, save for the second applicant in the Khosa (supra) matter, fled Mozambique in the 1980s as a result of the outbreak of civil war and sought refuge in South Africa. They integrated into the local community in the former Gazankulu territory in what is now known as Limpopo Province. The second applicant in the Khosa matter came to South Africa to work for the then National Parks Board at Skukuza until his retirement in May 1992. He, like the other applicants in this case, is also a permanent resident.

[3]All of the applicants in both matters are destitute and would qualify for social assistance under the Act but for the fact that they are not South African citizens. In the Khosa matter, the second applicant had applied for an old-age grant on 1 September 1992 which was eventually paid to him in November 1996. This grant was later withdrawn in February 1998 during a "pension clean-up" by the Northern Province provincial government in which the payment of some 94 000 grants was discontinued. He was thereafter not permitted to apply for a new grant under the Act because of his lack of South African citizenship.

[4]In the case of the other applicants in both matters, their applications for old-age grants were refused because they are not South African citizens as required by the Act. In the Mahlaule (supra) matter, the first applicant attempted to apply for a child-support grant under section 4 of the Act in respect of two of her children who were then below the age of 7, but she too was not permitted to apply for the grant on the basis that she lacks South African citizenship. Another of her children, aged 12, is diabetic and would qualify for a care-dependency grant under section 4B(b)(ii). Section 2(g) of the Act, which currently


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regulates the allocation of care-dependency grants, read together with Regulations 5 and 9 promulgated under the Act, does not expressly preclude non-citizens from receiving care-dependency grants. (…)

The tender by the State

[33]At the second hearing of this matter before this Court on 30 May 2003 the respondents conceded that, as a matter of law, children who are South African citizens should not be denied access to child-support grants and that a provision in legislation which denies such children access because their primary care-giver or their parents are not South African citizens would be unconstitutional. They did not oppose the confirmation of the order in so far as it declared section 4(b)(ii) of the Act as amended and section 4B(b)(ii) as it appears in section 3 of the Welfare Laws Amendment Act to be inconsistent with the Constitution to the extent that they exclude children who are South African citizens from social assistance. They contended, however, that such an order of invalidity should be suspended for 18 months to enable Parliament to amend the legislation.

[34]Acknowledging the plight of the applicants who are destitute and in need of care, the second respondent informed the Court that the first respondent had been urgently requested to consider extending the definition of a "South African citizen" in the Act to accommodate the present applicants and former refugees from Mozambique who were granted exemptions under the Aliens Control Act. The respondents contended that these concessions should settle the dispute between the parties and that there was therefore no need for this Court to confirm the order of invalidity in respect of subsection 3(c) of the Act.

[35]An offer to settle the dispute made by one litigant to the other, even if accepted, cannot cure the ensuing legal uncertainty or dispose of the confirmation proceedings. Even if the applicants had accepted the offer it would have settled the dispute only between these litigants. The impact of the settlement would have been too limited and would not resolve the unconstitutionality of the impugned provisions and the impact that they have on the broader group of permanent residents who qualify in all other respects for social grants. An important purpose of confirmation proceedings is to ensure legal certainty. If parties were permitted to reach agreements that would remove this Court's power to hear confirmation proceedings in relation to an order of invalidity, that purpose would be defeated.

Standing

… [37]In my view, the applicants meet more than one of the requirements under section 38. They need not satisfy all of the provisions in section 38 for them to have standing to approach this Court. In this case, the status of the applicants as permanent residents is sufficient to accord them standing to bring this challenge. Further, it is appropriate for the applicants to bring this matter in the interest of permanent residents and children who are in the care of permanent residents. They are indeed members of a group or class of people who would qualify for social assistance under the Act but for the fact that they are not South African citizens. They also act on behalf of children who cannot act on their own and who would qualify for social assistance but for the citizenship limitation. I am satisfied that based on these provisions the applicants have standing before this Court. There is therefore no need to decide the applicants' claim of public-interest standing.

Main contentions of the parties

[38]The applicants contended that the exclusion of all non-citizens from the scheme is inconsistent with the State's obligations under section 27(1)(c) of the Constitution to provide access to social security to "everyone". The relevant parts of section 27 of the Constitution provide:

"Health care, food, water and social security - (1)Everyone has the right to have access to - ... (c)social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.

(2)The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights."


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[39]They also argued that the exclusion limited their right to equality and was unfair under section 9 of the Constitution and that the limitation was unjustifiable under section 36 of the Constitution. They further contended that their right to life under section 11 of the Constitution and their right to dignity under section 10 were infringed without justification. In so far as the grants in favour of children were concerned, they contended that the exclusion also infringed the rights that children have under section 28 of the Constitution. The respondents essentially advanced reasons that motivated and, so it was submitted, justified the decision to exclude all non-citizens, including permanent residents. These arguments will be dealt with in detail later in this judgment.

The approach to claims for socio-economic rights

[40]The socio-economic rights in our Constitution are closely related to the founding values of human dignity, equality and freedom. Yacoob J observed in Government of the Republic of South Africa and Others v Grootboom and Others that the proposition that rights are interrelated and are all equally important, has immense human and practical significance in a society founded on these values.

[41]In this case we are concerned with these intersecting rights which reinforce one another at the point of intersection. The rights to life and dignity, which are intertwined in our Constitution, are implicated in the claims made by the applicants. This Court in Dawood said:

"Human dignity ... informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights ... Section 10, however, makes it plain that dignity is not only a value fundamental to our Constitution it is a justiciable and enforceable right that must be respected and protected. In many cases, however, where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labour."

[42]Equality is also a foundational value of the Constitution and informs constitutional adjudication in the same way as life and dignity do. Equality in respect of access to socio-economic rights is implicit in the reference to "everyone" being entitled to have access to such rights in section 27. Those who are unable to survive without social assistance are equally desperate and equally in need of such assistance.

[43]This Court has dealt with socio-economic rights on four previous occasions. What is clear from these cases is that section 27(1) and section 27(2) cannot be viewed as separate or discrete rights creating entitlements and obligations independently of one another. Section 27(2) exists as an internal limitation on the content of section 27(1) and the ambit of the section 27(1) right can therefore not be determined without reference to the reasonableness of the measures adopted to fulfil the obligation towards those entitled to the right in section 27(1).

[44]When the rights to life, dignity and equality are implicated in cases dealing with socio-economic rights, they have to be taken into account along with the availability of human and financial resources in determining whether the State has complied with the constitutional standard of reasonableness. This is, however, not a closed list and all relevant factors have to be taken into account in this exercise. What is relevant may vary from case to case depending on the particular facts and circumstances.

What makes this case different to other cases that have previously been considered by this Court is that, in addition to the rights to life and dignity, the social-security scheme put in place by the State to meet its obligations under section 27 of the Constitution raises the question of the prohibition of unfair discrimination.

[45]It is also important to realise that even where the State may be able to justify not paying benefits to everyone who is entitled to those benefits under section 27 on the grounds that to do so would be unaffordable, the criteria upon which they choose to limit the payment of those benefits (in this case citizenship) must be consistent with the Bill of Rights as a whole. Thus if the means chosen by the


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Legislature to give effect to the State's positive obligation under section 27 unreasonably limits other constitutional rights, that too must be taken into account.

The ambit of the right of access to social security in terms of section 27(1)(c)

[46]The socio-economic rights in sections 26 and 27 of the Constitution are conferred on "everyone" by subsection (1) in each of those sections. In contrast, the Sate's obligations in respect of access to land apply only to citizens. Whether the right in section 27 is confined to citizens only or extends to a broader class of persons therefore depends on the interpretation of the word "everyone" in that section. The applicants relied on section 25 of the Constitution, as well as various other rights in the Bill of Rights, to argue that "everyone" in section 27 included non-citizens and therefore also (for the purposes of this case) permanent residents.

[47]This Court has adopted a purposive approach to the interpretation of rights. Given that the Constitution expressly provides that the Bill of Rights enshrines the rights of "all people in our country", and in the absence of any indication that the section 27(1) right is to be restricted to citizens as in other provisions in the Bill of Rights, the word "everyone" in this section cannot be construed as referring only to "citizens".

The reasonableness of the legislative scheme

[48]A court considering the reasonableness of legislative or other measures taken by the Sate will not enquire into whether other more desirable or favourable measures could have been adopted, or whether public resources could have been better spent. A wide range of possible measures could be adopted by the Sate to meet its obligations and many of these may meet the requirement of reasonableness. Once it is shown that the measures do so, this requirement would be met.

[49]In dealing with the issue of reasonableness, context is all important. We are concerned here with the right to social security and the exclusion from the scheme of permanent residents who, but for their lack of citizenship, would qualify for the benefits provided under the scheme. In considering whether that exclusion is reasonable, it is relevant to have regard to the purpose served by social security, the impact of the exclusion on permanent residents and the relevance of the citizenship requirement to that purpose. It is also necessary to have regard to the impact that this has on other intersecting rights. In the present case, where the right to social assistance is conferred by the Constitution on "everyone" and permanent residents are denied access to this right, the equality rights entrenched in section 9 are directly implicated.

The purpose of providing access to social security to those in need

[50]The Sate did not suggest that the exclusion of permanent residents was a temporary measure, nor did it argue that the exclusion was an incident of attempts by it progressively to realise everyone's right of access to social security. The Sate's case is rather that non-citizens have no legitimate claim of access to social security and it therefore excluded them from the scheme that it put in place. It is that proposition that has to be tested against the constitutional standard of reasonableness demanded by section 27(2).

[51]Those who seek assistance must meet stringent means tests prescribed by regulations made under the Act. Grants are made to those in need, including vulnerable persons. According to Mr Madonsela, the Director-General of the Department of Social Development, the legislation is part of the government's strategy to combat poverty. He says also that the legislation is directed at realising the relevant objectives of the Constitution and the Reconstruction and Development Programme, and giving effect to South Africa's international obligations.

[52]The right of access to social security, including social assistance, for those unable to support themselves and their dependants is entrenched because as a society we value human beings and want to ensure that people are afforded their basic needs. A society must seek to ensure that the basic necessities of life are accessible to all if it is to be a society in which human dignity, freedom and equality are foundational.


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The reasonableness of citizenship as a criterion of differentiation

[53]It is necessary to differentiate between people and groups of people in society by classification in order for the State to allocate rights, duties, immunities, privileges, benefits or even disadvantages and to provide efficient and effective delivery of social services. However, those classifications must satisfy the constitutional requirement of "reasonableness" in section 27(2). In this case, the State has chosen to differentiate between citizens and non-citizens. That differentiation, if it is to pass constitutional muster, must not be arbitrary or irrational nor must it manifest a naked preference. There must be a rational connection between that differentiating law and the legitimate government purpose it is designed to achieve. A differentiating law or action which does not meet these standards will be in violation of section 9(1) and section 27(2) of the Constitution.

[54]The respondents averred that citizenship is a requirement for social benefits in "almost all developed countries". That may be so in respect of certain benefits. But unlike ours, those countries do not have constitutions that entitle "everyone" to have access to social security, nor are their immigration and welfare laws necessarily the same as ours.

[55]The respondents contended that immigrants, before entering the country, are required to show self-sufficiency in order to qualify for permanent residence status. They are only restricted from accessing the right in question for a temporary period of five years, after which they can apply for citizenship by reason of naturalisation. On receipt of citizenship, they would have a right to social security. In their submission, any infringement of the right was therefore only of a temporary nature. They did not, however, offer any justification for denying the right to permanent residents during this five-year period.

[56]In essence, the Constitution properly interpreted provides that a permanent resident need not be a citizen in order to qualify for access to social security. Justifying the restriction of that right of access by the fact that the South African Citizenship Act 88 of 1995 allows them to apply under exceptional circumstances for naturalisation, and thereby obtain access to the grants in question, is not reasonable. Besides, it is doubtful whether the need for a social grant will be viewed as an "exceptional circumstance" sufficient to waive the normal requirements for naturalisation considering that the Immigration Act 13 of 2002 requires, in terms of sections 25 to 28, that a person applying for permanent residence in South Africa either be self-sufficient or have a supporting sponsor. The decision to grant naturalisation under the South African Citizenship Act may well be subject to administrative discretion and would therefore be beyond the control of the applicants.

[57]The respondents argued that the State has an obligation toward its own citizens first, and that preserving welfare grants for citizens only creates an incentive for permanent residents to naturalise. This argument, commonly found in American jurisprudence, is based on the social contract assumption that non-citizens are not entitled to the full benefits available to citizens. The argument, however, does not accord with the stated legislative intention in the Immigration Act which provides that:

"The holder of a permanent residence permit has all the rights, privileges, duties and obligations of a citizen, save for those rights, privileges, duties and obligations which a law or the Constitution explicitly ascribes to citizenship."

Financial considerations

[58]I accept that the concern that non-citizens may become a financial burden on the country is a legitimate one and I accept that there are compelling reasons why social benefits should not be made available to all who are in South Africa irrespective of their immigration status. The exclusion of all non-citizens who are destitute, however, irrespective of their immigration status, fails to distinguish between those who have become part of our society and have made their homes in South Africa, and those who have not. It also fails to distinguish between those who are being supported by sponsors who arranged their immigration and those who acquired permanent residence status without having sponsors to whom they could turn in case of need.


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[59]It may be reasonable to exclude from the legislative scheme workers who are citizens of other countries, visitors and illegal residents, who have only a tenuous link with this country. The position of permanent residents is, however, quite different to that of temporary or illegal residents. They reside legally in the country and may have done so for a considerable length of time. Like citizens, they have made South Africa their home. While citizens may leave the country indefinitely without forfeiting their citizenship, permanent residents are compelled to return to the country (except in certain circumstances) at least once every three years. While they do not have the rights tied to citizenship, such as political rights and the right to a South African passport, they are, for all other purposes mentioned above, in much the same position as citizens. Once admitted as permanent residents they can enter and leave the country. Their homes, and no doubt in most cases their families too, are in South Africa. Some will have children born in South Africa. They have the right to work in South Africa, and even owe a duty of allegiance to the State. For these reasons, I exclude temporary residents and it would have been appropriate for the High Court to have done so.

[60]The respondents also sought to deny the benefit to permanent residents on the grounds that this would impose an impermissibly high financial burden on the State. The respondents relied for this point on an affidavit deposed to by Mr Kruger, the Chief Director of Social Services in the National Treasury. According to him, the development of a system of social grants has been a key pillar of the government's strategy to fight poverty and promote human development. This has led to a substantial and rapid increase in expenditure on social grants. In the last three years alone the expenditure, excluding costs of administration, has increased from R16.1 billion to R26.2 billion. It is contemplated that over the next three years grants will increase from R26.2 billion to R44.6 billion. In addition, provision has to be made for expenditure on other socio-economic programmes. Mr Kruger says that if provision has to be made for the expenditure necessary to give effect to the High Court order, the costs will be large and will result in shortfalls in provincial budgets particularly in the poorer provinces.

[61]Mr Kruger indicates that there is a paucity of information concerning the number of persons who might qualify for grants if they are extended to permanent residents. He refers to various classes of persons who have been exempted from the normal immigration requirements and have been accorded permanent residence status. They include Mozambican refugees and various persons from members of the Southern African Development Community and other African countries. He estimates that there are at least 260 000 such persons currently in South Africa. Most of these permanent residents have been living in South Africa for a considerable period of time. In the case of the applicants, they have all been in South Africa since 1993 or longer. The respondents were unable, however, to furnish this Court with information relating to the numbers who hold permanent resident status, or who would qualify for social assistance if the citizenship barrier were to be removed.

[62]There is thus no clear evidence to show what the additional cost of providing social grants to aged and disabled permanent residents would be. Taking into account certain assumptions relating to the composition of the groups and numbers of dependants, Mr Kruger concludes that the additional annual cost of including permanent residents in grants in terms of sections 3, 4 and 4B could range between R243 million and R672 million. The possible range demonstrates the speculative nature of the calculations, but even if they are taken as providing the best guide of what the cost may be, they do not support the contention that there will be a huge cost in making provision for permanent residents. Approximately one fifth of the projected expenditure is in respect of child grants and the unconstitutionality of the citizenship requirement in that section of the Act has already been conceded by the respondents. The remainder reflects an increase of less than 2% on the present cost of social grants (currently R26.2 billion) even on the higher estimate. Bearing in mind that it is anticipated that the expenditure on grants will, in any event, increase by a further R18.4 billion over the next three years without making provision for permanent residents, the cost of including permanent residents in the system will be only a small proportion of the total cost.

Self-sufficiency


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[63]Another reason given for excluding permanent residents from the scheme was the promotion of the immigration policy of the State, which seeks to exclude persons who may become a burden on the State and thereby to encourage self-sufficiency among foreign nationals.

[64]Limiting the cost of social welfare is a legitimate government concern. If it is considered necessary to control applications for permanent residence by excluding those who may become a burden on the State, that too is permissible, but it must be done in accordance with the Constitution and its values. The State can protect itself against persons becoming financial burdens by thorough, careful consideration in the admission of immigrants, or by taking adequate security from those admitted, or by demanding such security or guarantees from their sponsors at the time the immigrants are allowed into the country or are permitted to stay as permanent residents. It would not necessarily be unreasonable in such circumstances to require a permanent resident to look in the first instance to his or her sponsor for support, and to permit a claim on the security system only if, notwithstanding the security or guarantee, that fails.

[65]At the time the immigrant applies for admission to take up permanent residence the State has a choice. If it chooses to allow immigrants to make their homes here it is because it sees some advantage to the State in doing so. Through careful immigration policies it can ensure that those admitted for the purpose of becoming permanent residents are persons who will profit, and not be a burden to, the State. If a mistake is made in this regard, and the permanent resident becomes a burden, that may be a cost we have to pay for the constitutional commitment to developing a caring society, and granting access to socio-economic rights to all who make their homes here. Immigration can be controlled in ways other than allowing immigrants to make their permanent homes here, and then abandoning them to destitution if they fall upon hard times. The category of permanent residents who are before us are children and the aged, all of whom are destitute and in need of social assistance. They are unlikely to earn a living for themselves. While the self-sufficiency argument may hold in the case of immigrants who are viable in the job market and who are still in the process of applying for permanent resident status, the argument is seemingly not valid in the case of children and the aged who are already settled permanent residents and part of South African society.

[66]Respondents relied in their argument on the decision of a United States appellate court in City of Chicago v Shalala. In that case it was held that the relevant legislative provisions which disqualified non-citizens who were legal permanent residents from participation in the scheme, were not inconsistent with the equal protection clause of the US Constitution. In reaching its decision the court applied a rational basis standard of review, holding that there was a rational connection between the federal government's immigration policy and its welfare policy of encouraging the self-sufficiency of immigrants.

[67]The test for rationality is a relatively low one. As long as the government purpose is legitimate and the connection between the law and the government purpose is rational and not arbitrary, the test will have been met. Despite the failure of many of the respondents' arguments with respect to the purpose of the exclusion of permanent residents from the social-assistance scheme, I am prepared to assume that there is a rational connection between the citizenship provisions of the Act and the immigration policy it is said to support. But that is not the test for determining constitutionality under our Constitution. Section 27(2) of the Constitution sets the standard of reasonableness which is a higher standard than rationality.

Is there unfair discrimination?

[68]The fact that the differentiation between citizens and non-citizens may have a rational basis does not mean that it is not an unfairly discriminatory criterion to use in the allocation of benefits. If the differentiation is based on a ground listed in section 9(3) of the Constitution a rebuttable presumption that the discrimination is unfair is created by section 9(5). However, where, as in this case, the ground for the differentiation is not itself listed but is analogous to such listed grounds, there is no presumption in favour of unfairness and the unfairness first has to be established.

[69]In President of the Republic of South Africa and Another v Hugo Goldstone J stated that:


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"At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked... .

To determine whether that impact was unfair it is necessary to look not only at the group who has been disadvantaged but at the nature of the power in terms of which the discrimination was effected and, also at the nature of the interests which have been affected by the discrimination."

[70]Citizenship is not a ground of differentiation that is specified in section 9(3) of the Constitution. In Hoffmann v South African Airways this Court held that "at the heart of the prohibition of unfair discrimination is the recognition that under our Constitution all human beings, regardless of their position in society, must be accorded equal dignity." To be considered an analogous ground of differentiation to those listed in section 9(3) the classification must, therefore, have an adverse effect on the dignity of the individual, or some other comparable effect.

[71]In Larbi-Odam the Court found that discrimination on the basis of citizenship in the context of permanent employment amounted to unfair discrimination. With respect to permanent residents the Court had the following to say: "[Permanent residents] have been selected for residence in this country by the Immigrants Selection Board, some of them on the basis of recruitment to specific posts. Permanent residents are generally entitled to citizenship within a few years of gaining permanent residency, and can be said to have made a conscious commitment to South Africa.

Moreover, permanent residents are entitled to compete with South Africans in the employment market. As emphasised by the appellants, it makes little sense to permit people to stay permanently in a country, but then to exclude them from a job they are qualified to perform."

With regard to the vulnerability of permanent residents, the court in Larbi-Odam found that first, foreign citizens are a minority in all countries, and have little political muscle. Secondly, the court felt that citizenship is a personal attribute which is difficult to change. The respondents argued in this Court that citizenship is not a matter within the discretion of the Minister of Home Affairs, and that the State would be compelled to grant citizenship to persons who have resided in South Africa for five years and who satisfy the other criteria required for citizenship by naturalisation. Even if that were true (and it is not necessary to decide the point) it remains so that citizenship is typically not within the control of the individual and is, at least temporarily, a characteristic of personhood not alterable by conscious action and in some cases not alterable except on the basis of unacceptable costs. It is also true, as was noted in Larbi-Odam (supra) that in the South African context individuals were deprived of rights or benefits ostensibly on the basis of citizenship, but in reality in circumstances where citizenship was governed by race. Differentiation on the grounds of citizenship is clearly on a ground analogous to those listed in section 9(3) and therefore amounts to discrimination.

[72]With this said, one must now determine whether that discrimination is unfair. The determining factor regarding the unfairness of the discrimination is its impact on the person discriminated against. Relevant considerations in this regard include:

"(a)the position of the complainants in society and whether they have suffered in the past from patterns of disadvantage, whether the discrimination in the case under consideration is on a specified ground or not;

(b)the nature of the provision or power and the purpose sought to be achieved by it. If its purpose is manifestly not directed, in the first instance, at impairing the complainants in the manner indicated above, but is aimed at achieving a worthy and important societal goal, such as, for example, the furthering of equality for all, this purpose may, depending on the facts of the particular case, have a significant bearing on the question whether complainants have in fact suffered the impairment in question ...


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(c)with due regard to (a) and (b) above, and any other relevant factors, the extent to which the discrimination has affected the rights or interests of complainants and whether it has led to an impairment of their fundamental human dignity or constitutes an impairment of a comparably serious nature."

These factors do not constitute a closed list and it is their cumulative effect that must be examined and in respect of which a determination must be made as to whether the discrimination is unfair.

[73]In Brink v Kitshoff NO, O'Regan J, with the concurrence of all the members of the court, stated:

"Section 8 was adopted then in the recognition that discrimination against people who are members of disfavoured groups can lead to patterns of group disadvantage and harm. Such discrimination is unfair: it builds and entrenches inequality amongst different groups in our society. The drafters realised that it was necessary both to proscribe such forms of discrimination and to permit positive steps to redress the effects of such discrimination. The need to prohibit such patterns of discrimination and to remedy their results are the primary purposes of section 8 and, in particular, subsections (2), (3) and (4)."

[74]There can be no doubt that the applicants are part of a vulnerable group in society and, in the circumstances of the present case, are worthy of constitutional protection. We are dealing, here, with intentional, statutorily sanctioned unequal treatment of part of the South African community. This has a strong stigmatising effect. Because both permanent residents and citizens contribute to the welfare system through the payment of taxes, the lack of congruence between benefits and burdens created by a law that denies benefits to permanent residents almost inevitably creates the impression that permanent residents are in some way inferior to citizens and less worthy of social assistance. Sharing responsibility for the problems and consequences of poverty equally as a community represents the extent to which wealthier members of the community view the minimal well-being of the poor as connected with their personal well-being and the well-being of the community as a whole. In other words, decisions about the allocation of public benefits represent the extent to which poor people are treated as equal members of society.

[75]Social grants in terms of section 3 of the Act can be claimed by "an aged person, a disabled person or a war veteran". Child-support grants in terms of section 4 can be claimed by the primary care-giver of the child, and care-dependency grants can be claimed by the parent or foster parent of a care-dependent child. In terms of section 1 of the Act, a care-dependent child is one who requires and receives permanent home care owing to his or her severe mental or physical disability.

The impact of the exclusion

[76]The exclusion of permanent residents in need of social-security programmes forces them into relationships of dependency upon families, friends and the community in which they live, none of whom may have agreed to sponsor the immigration of such persons to South Africa. These families or dependants, who may be in need of social assistance themselves, are asked to shoulder burdens not asked of other citizens. The denial of the welfare benefits therefore impacts not only on permanent residents without other means of support, but also on the families, friends and communities with whom they have contact. Apart from the undue burden that this places on those who take on this responsibility, it is likely to have a serious impact on the dignity of the permanent residents concerned who are cast in the role of supplicants.

[77]As far as the applicants are concerned, the denial of the right is total and the consequences of the denial are grave. They are relegated to the margins of society and are deprived of what may be essential to enable them to enjoy other rights vested in them under the Constitution. Denying them their right under section 27(1) therefore affects them in a most fundamental way. In my view this denial is unfair.

[78]Section 4(b)(ii) of the Act, which deals with child-support grants, requires both the adult and the child to be South African citizens. In the case of care-dependency grants, section 4B(b)(ii) requires that both the parent and the child be South African citizens. However, there is no citizenship requirement in respect of foster parents of a care-dependent child. Foster-child grants in terms of section 4A are also not subject to a


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citizenship requirement. The children referred to in section 4(b)(ii) and 4B(b)(ii) may have been born in South Africa and may be citizens, but if the primary care-giver or parent, excluding foster parents, is not a South African citizen, the grant is not payable. The respondents did not seek to support these provisions, which discriminate against children on the grounds of their parents' nationality. It was therefore conceded that citizenship is an irrelevant consideration in assessing the needs of the children concerned. Moreover the denial of support in such circumstances to children in need trenches upon their rights under section 28(1)(c) of the Constitution.

Evaluation

[79]It is now necessary to weigh up the competing considerations taking into account the intersecting rights that are involved in the present case. Of crucial importance to this analysis is the fact that the Constitution provides that "everyone" has the right to have access to social security if they are unable to support themselves and their dependants. We are concerned here with a scheme that has been put in place by the State to provide access to social security to persons unable to support themselves and their dependants. The only challenge to the scheme is that it denies access to non-citizens. There is no suggestion that the scheme is otherwise inappropriate or inconsistent with the Constitution.

[80]I have already indicated that the exclusion of permanent residents from the scheme is discriminatory and unfair and I am satisfied that this unfairness would not be justifiable under section 36 of the Constitution. The relevant considerations have been traversed above and need not be repeated. What is of particular importance in my view, however, and can be stressed again, is that the exclusion of permanent residents from the scheme is likely to have a severe impact on the dignity of the persons concerned, who, unable to sustain themselves, have to turn to others to enable them to meet the necessities of life and are thus cast in the role of supplicants.

[81]The denial of access to social assistance is total, and for as long as it endures, permanent residents unable to sustain themselves or to secure meaningful support from other sources will be relegated to the margins of society and deprived of what may be essential to enable them to enjoy other rights vested in them under the Constitution. Denying permanent residents access to social security therefore affects them in a most fundamental way.

[82]In my view the importance of providing access to social assistance to all who live permanently in South Africa and the impact upon life and dignity that a denial of such access has, far outweighs the financial and immigration considerations on which the State relies. For the same reasons, I am satisfied that the denial of access to social grants to permanent residents who, but for their citizenship, would qualify for such assistance does not constitute a reasonable legislative measure as contemplated by section 27(2) of the Constitution.

[83]There is a difficulty in applying section 36 of the Constitution to the socio-economic rights entrenched in sections 26 and 27 of the Constitution. Sections 26 and 27 contain internal limitations which qualify the rights. The State's obligation in respect of these rights goes no further than to take "reasonable legislative and other measures within its available resources to achieve the progressive realisation" of the rights. If a legislative measure taken by the State to meet this obligation fails to pass the requirement of reasonableness for the purposes of sections 26 and 27, section 36 can only have relevance if what is "reasonable" for the purposes of that section, is different to what is "reasonable" for the purposes of sections 26 and 27.

[84]This raises an issue which has been the subject of academic debate but which has not as yet been considered by this Court. We heard no argument on the matter and do not have the benefit of a judgment of the High Court. In the circumstances, it is undesirable to express any opinion on the issue unless it is necessary to do so for the purposes of the decision in this case. In my view it is not necessary to decide the issue. Even if it is assumed that a different threshold of reasonableness is called for in sections 26 and 27 than is the case in section 36, I am satisfied for the reasons already given that the exclusion of permanent


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residents from the scheme for social assistance is neither reasonable nor justifiable within the meaning of section 36.

[85]The Constitution vests the right to social security in "everyone". By excluding permanent residents from the scheme for social security, the legislation limits their rights in a manner that affects their dignity and equality in material respects. Dignity and equality are founding values of the Constitution and lie at the heart of the Bill of Rights. Sufficient reason for such invasive treatment of the rights of permanent residents has not been established. The exclusion of permanent residents is therefore inconsistent with section 27 of the Constitution.

Remedy

[86]For the reasons given above, we do not confirm the order of the High Court and we find section 3(c), prior to amendment by the Welfare Laws Amendment Act, to be unconstitutional. It was the submission of the respondents that we find sections 4(b)(ii) and 4B(b)(ii) of the Act, as amended by the Welfare Laws Amendment Act, unconstitutional and that we strike them both down, coupled with an order suspending invalidity. Section 4B(b)(ii) as it appears in section 3 of the Welfare Laws Amendment Act is not yet in force. Although this new section will become part of the Act when it is promulgated, it has been passed as part of the Welfare Laws Amendment Act. Thus, the High Court's determination of the impugned section as a provision of the Social Assistance Act was technically not in order. Since the impugned section was before the High Court it is necessary for it to be considered in these confirmation proceedings. However, in view of the fact that the new provision is currently contained in the Welfare Laws Amendment Act, making, in the strict sense, that Act the subject of constitutional challenge, the order regarding this issue should be directed at the Welfare Laws Amendment Act and not the Social Assistance Act. For the same reasons as in the case of section 3(c), we do not confirm the order of the High Court and also find section 4(b)(ii) to be unconstitutional. The constitutionality of section 4B(b)(ii), as it appears in section 3 of the Welfare Laws Amendment Act is discussed below.

[87]Once the Court has found constitutional inconsistency, it must declare invalidity to the extent of the inconsistency. The Court may then make an order which is "just and equitable". In this case, the impugned provisions are inconsistent with the Constitution in that they exclude permanent residents from access to social security on the basis that they are non-citizens. The declaration of invalidity therefore does not affect the full extent of the impugned provisions. In such circumstances, the approach of this Court has been to declare only the relevant part of the impugned legislation inconsistent with the Constitution.

[88]When courts consider a remedy following a declaration of invalidity of a statute, the question of remedial precision, which relates directly to respect for the role of the Legislature, is an important consideration. As permanent residents are not included in the allocation of social grants in section 4(b)(ii) of the Act, remedying the defect with the necessary precision would require the reading-in of the curing words, rather than striking down the impugned provisions and suspending the declaration of invalidity, as submitted by the respondents. Suspending the declaration of invalidity would, in my view, not constitute a "just and equitable order" as contemplated by section 172(1)(b) of the Constitution. There is every reason not to delay payment of social grants any further to the applicants and those similarly situated. Even if this Court were to grant interim relief to the applicants during the period of suspension, other permanent residents would be barred from applying until the end of the period of suspension. Striking down without an order of suspension is not appropriate either, as it would make the grants instantly available to all residents including visitors within South Africa who satisfy the other criteria.

[89]Reading in the words "or permanent resident" after "South African citizen" in section 3(c) and "or permanent residents" after "South African citizens" in section 4(b)(ii) offers the most appropriate remedy as it retains the right of access to social security for South African citizens while making it instantly available to permanent residents. (…)

Ngcobo J


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[99]The question presented in these confirmatory proceedings is whether the State can, consistent with the Constitution, exclude non-citizens from the social welfare system that it has put in place to meet the needs of those who are unable to support themselves. The social welfare grants that are the subject matter of the claims in these proceedings are social grants, child support grants and care dependency grants. At issue is the constitutional validity of sections 3(c), 4(b(ii) and 4B(b)(ii) of the Social Assistance Act 59 of 1992 which limit social grants, child support grants and care dependency grants respectively, to South African citizens.

[100]The applicants, who are permanent residents, meet all the requirements for social welfare grants save for the requirements of citizenship. They contend that the citizenship requirement in sections 3(c), 4(b)(ii) and 4B(b)(ii) is inconsistent with the Constitution. For this contention, they rely, in particular, on the right to have access to social security, to equality, to human dignity, to life and to children's rights.

[101]This case presents a novel question in the context of socio-economic rights. In the past this Court has been called upon to evaluate programmes that the State has put in place in order to determine whether they comply with the Constitution. In this case, the State has put in place a scheme for social welfare assistance to meet its obligations under the Constitution. The contents of the scheme are not in issue. The only complaint is that access to the benefits system is limited to citizens only. We are therefore not concerned with what should be made available to those in need but with who among the needy should receive the social welfare benefits.

The problem of the governing constitutional provisions

[102]Two interesting and difficult questions arise. The first is conceptual: which provisions of the Constitution should govern the constitutional challenge involved in this case? The right of access to social security is no doubt implicated because this case is concerned with access to social security. But the impugned provisions exclude non-citizens from benefiting from the scheme. The exclusion of non-citizens from the scheme manifestly implicates the right not to be discriminated against. This question was not addressed in argument. It need not be considered on this occasion. The outcome would be the same under either constitutional provision.

[103]My colleague, Mokgoro J, has approached the matter on the footing that the right of access to social security governs the question presented in this case. There is much to be said for this view. The parties themselves have framed the legal issue as involving the right of permanent residents not to be excluded from the benefits system. On this logic, the primary right implicated is guaranteed by section 27 of the Constitution. The constitutional validity of the exclusion must therefore be examined by reference to the right to have access to social security. But, as the main judgment acknowledges in this case, the result under either of these constitutional provisions would be the same.

[104]That is not to say that the other rights asserted by the applicants do not enter the picture. The Bill of Rights is the cornerstone of our constitutional democracy and it "affirms the democratic values of human dignity, equality and freedom." The founding values will inform most, if not all, of the rights in the Bill of Rights. Socio-economic rights must be understood in the context of the founding values of our Constitution. Access to socio-economic rights is crucial to the enjoyment of the other rights mentioned in the Bill of Rights, in particular the enjoyment of human dignity, equality and freedom. A denial of access to a social welfare scheme may, as demonstrated by this case, therefore have an impact on more than one constitutional right. We are therefore concerned with a statute implicating multiple constitutional rights that reinforce one another at their point of intersection.

The problem of methodology

[105]But if section 27 governs the present constitutional challenge, the problem of a methodological approach arises. The obligations of the State under section 27(2) are limited to taking "reasonable legislative and other measures." The main judgment regards this as an internal limitation on the right of


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access to social security. I agree. But is it possible to find that a measure is reasonable within the meaning of subsection 2 yet not reasonable and justifiable under section 36(1), the limitation clause?

[106]Let us take a non-controversial group, the temporary visitors, which the main judgment also accepts can legitimately be excluded from the social welfare benefits. If their exclusion would be reasonable under section 27(2), is the State required to show also that their exclusion is reasonable and justifiable under section 36(1)? This raises a number of related questions, including, whether the standard for determining reasonableness under section 27(2) is the same as the standard for determining reasonableness and justifiability under section 36(1) and, if not, what is the appropriate standard for determining reasonableness under section 27(2). These questions were not addressed in argument and for reasons that will appear below, they will not be answered now.

[107]Faced with these questions, the main judgment adopts the attitude that the outcome would be the same whether the enquiry is to be conducted under section 27(2) or section 36(1). I prefer to approach the matter differently - by looking first to the enquiry required in section 27 and then, if necessary, to section 36. I should add, though, that the outcome would be the same even if the enquiry were to begin and end in section 27(2).

Is there a limitation of a constitutional right?

[108]For convenience, the relevant provisions of section 27 are set out hereunder:

"(1)Everyone has the right to have access to - ... (c)social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.

(2)The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights."

[109]Section 27(1) and (2) must be read together to give content to the right of access to social security. Subsection 1 delineates the scope of the right by vesting the right in everyone. In Grootboom (supra) this Court held that subsection 1 of section 26 places a negative obligation on the State to desist from preventing or impairing the right of access to adequate housing. This applies to section 27 as well.

[110]Subsection (2) imposes a positive obligation upon the State "to devise a comprehensive and workable plan to meet its obligations in terms of the subsection." However, this is a qualified obligation, to "(a) take reasonable legislative and other measures; (b) to achieve the progressive realisation of the right; and (c) within available resources".

[111]Section 27(1) vests a right of access to social security in "everyone". The constitutional reference to "everyone" implies that all in need must have access to the social welfare scheme that the State has put in place. Where some who are in need are excluded, everyone does not have access to the scheme. The word "everyone" is a term of general import and unrestricted meaning. It means what it conveys. Once the State puts in place a social welfare system, everyone has a right to have access to that system.

[112]However, that does not mean that there can be no limitation imposed on those who may have access to that system. The Constitution contemplates that the rights in the Bill of Rights "are subject to limitations contained or referred to in section 36, or elsewhere in the Bill." The right to have access to social security, which is a right contained in the Bill of Rights, is therefore subject to limitation in terms of section 36.

[113]Confining social security to citizens in the Act does constitute a limitation on the right of access to social security of those applicants who are not citizens. What has to be determined therefore is whether that limitation is reasonable and justifiable in terms of section 36. And this question involves a proportionality analysis that takes into account the nature of the right, the nature and extent of the limitation, the importance of the purpose of the limitation, the relationship between the limitation and purpose and the existence of less restrictive means to achieve that purpose.


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Is the limitation justifiable?

[114]The importance of the right in issue cannot be gainsaid. It is a right that goes to one of the core values of our Constitution - human dignity. The State has an obligation to ensure that its citizens have access to basic needs such as food, clean water and shelter. Social security is a vital component of the social system that is available for those who cannot provide these basic needs for themselves or their families.

[115]However, the limitation imposed by the impugned statutory provisions on permanent residents is neither absolute nor permanent. It is true that only citizens can qualify for social security under the Act. But a permanent resident becomes eligible for citizenship after a fixed period of time. Under section 5(1) of the South African Citizenship Act 88 of 1995, a permanent resident need only have resided continuously in the Republic for a period of five years in order to qualify for citizenship by naturalisation.

[116]It is also true that the five-year waiting period could prove harmful to permanent residents who are unable to provide for themselves, just as it might prove harmful to a South African citizen who has to wait for five years to reach the qualifying age for a social grant. But recognising this possibility, the law also includes a provision for such individuals to obtain benefits during this interim period. Under section 5(9)(a) of the South African Citizenship Act, the Minister "may under exceptional circumstances grant a certificate of naturalisation as a South African citizen to an applicant who does not comply with the requirements of the said subsection (1) relating to residence or ordinary residence in the Republic."

[117]It is therefore plain from these provisions that a permanent resident can get social benefits after five years, but that the State can waive the residential waiting period for permanent residents in exceptional cases. From this, it must follow that permanent residents need not always wait for five years to become citizens and thus become eligible for social security.

[118]There is a further consideration that is relevant in this regard. It is this: under section 1 of the Act, the Minister for Welfare and Population Development, may, with the concurrence of the Minister of Finance, extend the definition of a citizen to include non-citizens. The effect of this provision is that a permanent resident who is defined as a citizen becomes eligible for social benefits under the Act. In the present case, the Minister of Welfare and Population Development with the concurrence of the Minister of Finance, actually agreed to extend the definition of citizen to include the applicants, except for the five whose applications were under consideration at the time. That offer was apparently rejected by the applicants.

[119]Properly understood, therefore, the limitation of rights involved in this case is of a limited duration and is not absolute. The denial of benefits lasts for a period of five years, when a permanent resident has to wait to become a citizen by naturalisation. However, the Minister may either waive the five-year waiting period or extend the definition of a citizen to include a non-citizen. Thus, even the most destitute of permanent residents, for whom waiting would lead to severe hardship, could have their condition ameliorated. The impugned provisions do not therefore disadvantage permanent residents in a manner that is beyond their control, as the applicants suggest.

[120]The State has advanced two reasons for the limitation. First, it says that it is consistent with a basic principle that a state is obliged to cater for the needs of its citizens. The Act is obviously designed to combat the very serious social ill of poverty. The State has committed a significant amount of resources to combat poverty in this nation by increasing financial expenditures. The State, like all other governments, has limited resources to confront this policy challenge. The harsh reality is that there are simply insufficient resources available to cater for all the various persons who might enter its borders seeking assistance.

[121]The second rationale that the State offers in defence of its policy is that immigrants should be encouraged to be self-sufficient. Immigrants within our borders should not depend on public resources to meet their needs but rather on their own capabilities and the resources of their families and their sponsors. This must be seen against the need to ensure that the availability of public benefits does not constitute an


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incentive for immigration to South Africa. The legitimacy of a legislative goal of discouraging immigration that is motivated by the availability of the welfare benefits, cannot be gainsaid.

[122]It is true that the immigration laws already prohibit the immigration of those who are likely to become a burden to the State purse. But that fact in itself does not detract from the importance of the purpose advanced to defend the legislation at issue here. Nor does it detract from the clear relationship between the limitation and its purpose. It is important to bear in mind here that those who, after immigrating to this country, find themselves destitute and unable to provide for themselves are not completely left in the cold. They could be catered for through the extension of the definition of a citizen or through the waiver of the residence requirement for naturalisation.

[123]So too is the fact that the elderly, physically challenged and children will not be encouraged to work because they are simply unable to work. As a matter of public policy, I cannot say that the impugned provisions are unreasonable simply because some immigrants who are unable to work will not be induced to work to provide for themselves. In the legislature's view, immigrants might have to rely on their families or sponsors rather than on the State purse. The impugned provisions are reasonably related to that goal and there is a close relationship between the limitation and its purpose.

[124]South Africa is not the only country that denies welfare benefits to non-citizens. The United States, Canada and Britain are developed countries that have resources that far exceed ours. They may have constitutions and immigration laws different to ours. The point is that South Africa is not alone in denying benefits to permanent residents. The rationale for this approach includes, amongst other things, the policy of encouraging the non-citizen's self-sufficiency, preventing the creation of incentives for immigration, and preserving the public treasury by confronting the rising costs of operating benefits programs.

[125]There are important differences between citizens and permanent residents. In terms of the Immigration Act, they do not have the rights, privileges, duties and obligations which a law or the Constitution explicitly ascribes to citizenship. Thus, they do not enjoy political rights, they do not enjoy the right to choose their trade, occupation or profession freely. Before a certificate of naturalisation is issued, a permanent resident is required to make a declaration of allegiance to the Republic.

[126]It is true that permanent residents enjoy a right to work in South Africa, the right to own houses, the obligation to pay taxes, and the responsibility to contribute to the economic growth of South Africa. But some of these privileges and duties also apply to another group of non-citizens - work permit holders. Just as permanent residents, work permit holders may establish a home in South Africa for their families; indeed, members of this group may well elect to become permanent residents. Both groups of non-citizens are under the Constitution entitled to socio-economic rights. The crucial question is whether social security benefits should be made available to every person who is within our borders. In my view, the State has successfully advanced compelling reasons for limiting the benefits to citizens. The need to reduce the rising costs of operating social security systems, the need to prevent the availability of social security benefits from constituting an incentive for immigration and the need to encourage the immigrants to be self-sufficient.

[127]The State is justifiably concerned about the impact of providing social security benefits to non-citizens on the State finance and its ability to provide expenditure on other socio-economic rights. Mr Kruger, the Chief Director of Social Services in the National Treasury, tells us that the war on poverty has led to a substantial and rapid increase in expenditure. Expenditure on social grants has increased from R16.1 billion to R26.2 billion and this is expected to increase to R44.6 billion over the next three years. These figures show an increasing demand for social grants.

[128]There is a paucity of information concerning the number of persons who might qualify for grants if they are extended to permanent residents. This is not surprising. Mr Kruger however estimates that the annual costs of including permanent residents could range between R243 million and R672 million. Policymakers have the expertise necessary to present a reasonable prediction about future social


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conditions. That is precisely the kind of work that policymakers are supposed to do. Unless there is evidence to the contrary, courts should be slow to reject reasonable estimates made by policymakers.

[129]The fact that the increase is not huge is not relevant. The fact of the matter is that there will be an increase; how huge that increase will be, will be determined by an increase in the number of permanent residents. What makes it difficult to predict the number of persons who might qualify, is that there is no clear information about the number of people who might qualify under a more generous immigration regime. And if there is merit in the possibility that the State could become a magnet for new immigrants seeking permanent resident status, estimating the likely size of the pool of grant applicants and an accurate estimate of the financial burden would be even more arduous a task.

[130]There is a further reason which is implicit in the reasons advanced by the State. The State's policy encourages the naturalisation process. As pointed out earlier, temporary and permanent resident status are both precursors to the full commitment of citizenship. By crafting the benefits rule so that only citizens qualify, the statute provides a legitimate incentive for an alien to become a citizen. The unequivocal declaration of loyalty and commitment that an alien can give to a country is through naturalisation and taking the oath of allegiance. After this a permanent resident becomes a citizen and thus qualifies for social security benefits.

[131]I accept that the applicants were entitled to test the validity of the impugned provisions. However, one should not lose sight of the fact that the applicants have lived in this country since the 1980s. They, therefore, qualify for naturalisation and acquisition of citizenship in South Africa. None have applied, nor have any advanced reasons why they have not applied. Had they applied for citizenship or even sought an exception, they would have qualified for social security benefits under the statutes. I draw attention to this fact to illustrate the limited nature and impermanence of the limitation involved in this case. Unlike the case of minors, these adult non-citizens are quite capable of obtaining citizenship but have chosen not to exercise their option.

[132]The State's management and control of the immigration process is a legitimate purpose. No careful immigration policy can foresee that an immigrant once admitted will fall upon hard times and thus become unable to provide for him or herself. The policy of the Act is to admit only those who are self-sufficient and will not be a burden on the State. This is in any event a temporary phase, for after they have been permanent residents for five years, they may qualify for citizenship. However, the immigrants who become destitute are not abandoned to destitution. As pointed out earlier, they can seek designation as "citizens" for the purpose of qualifying for benefits under the Act or request that the five-year residence requirement be waived and thus expedite their naturalisation under the South African Citizenship Act and ultimately, entitlement to social welfare benefits.

[133]It is inconceivable that the statutory exceptions that would allow a permanent resident to have access to social security benefits would be invoked in circumstances where there is a sponsor who is able and willing to provide for the permanent resident. It is only when the permanent resident has no sponsor or is unable to support him or herself, that the statutory exceptions could be invoked. Properly understood, therefore, the Act requires a permanent resident to look in the first instance to his or her own resources, or his or her sponsor for support and permits a claim on the security system only if that fails. The main judgment accepts that a statute which requires a permanent resident to look to the sponsor or his or her own resources in the first place and permits a claim on the social security system only if that fails, is not unreasonable.

[134]Weighing up the competing considerations, in particular, having regard to the fact that the limitation in issue here is neither absolute nor permanent, I am satisfied that the limitation imposed by section 3 of the Act is reasonable and justifiable under section 36(1) of the Constitution.

[135]However, the same cannot be said of the limitation imposed by sections 4(b)(ii) and 4B(b)(ii) of the Act. Foster child grants under section 4A are not subject to a citizenship requirement. Yet the child


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support grants under section 4 and the care-dependency grants under section 4B are subject to a citizenship requirement. The children referred to in sections 4(b)(ii) and 4B(b)(ii) may be South African citizens. It matters not according to these provisions. What matters is whether their primary caregiver or parent is a South African citizen.

[136]These provisions therefore deny the assistance to some citizens, while affording benefits to other citizens. What is more, they fail to take sufficient account of section 28(2) of the Constitution. That section reminds us that "[a] child's best interests are of paramount importance in any matter concerning the child." The exclusion of the children from these benefits cannot therefore be reasonable and justifiable in terms of section 36. The respondents very properly conceded that such exclusion cannot be justified.(…)

[140]In the result, I concur in the conclusion reached by Mokgoro J in relation to sections 4(b)(ii) and 4B(b)(ii) and in the order that she proposes in that regard. However, I am unable to concur in the result reached by Mokgoro J in relation to section 3(c) and in the order that she proposes in that regard. In my view, the order of invalidity in relation to section 3(c) should not be confirmed. I would make no order for costs.

E. Port Elizabeth Case

Port Elizabeth Municipality v Various Occupiers, 2004 (12) BCLR 1268 (Constitutional Court of South Africa)

Before : A Chaskalson, Chief Justice; PN Langa, Deputy Chief Justice; TH Madala, Y Mokgoro, ED Moseneke, S Ngcobo, CME O'Regan, AL Sachs, TL Skweyiya, JV Van der Westhuizen and ZM Yacoob, Justices Sachs J, [1]The applicant in this matter is the Port Elizabeth Municipality (the Municipality). The respondents are some 68 people, including 23 children, who occupy twenty-nine shacks they have erected on privately owned land (the property) within the Municipality. Responding to a petition signed by 1600 people in the neighbourhood, including the owners of the property, the Municipality sought an eviction order against the occupiers in the South Eastern Cape Local Division of the High Court (High Court). [2]At the time that the proceedings were instituted [*13] the occupiers had on their version been living for periods ranging from two to eight years on the property. Most had come there after being evicted from other land. The sites they occupied were on undeveloped land in an area known as Lorraine within the jurisdiction of the Municipality. The property is zoned for residential purposes and the dwellings were erected without the consent of the Municipality. n1 The occupiers indicated they were willing to leave the property if they were given reasonable notice and provided with suitable alternative land on to which they could move. They were told they could move to a place referred to as Walmer Township (Walmer). They rejected this proposal saying that Walmer was crime-ridden and unsavoury, as well as over-crowded, and that in any event they feared they would have no security of occupation there and find themselves liable to yet further eviction. It was common cause that the occupiers had not applied to the Municipality for housing. [3]The Municipality submitted that it was aware of its obligation to provide housing and had for that reason embarked on a comprehensive housing development programme. It contended that if alternative land was made available to the occupiers, they would effectively be "queue-jumping"; by occupying


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private land and, when asked to vacate it, demanding that they be provided with alternative accommodation, they would be disrupting the housing programme and forcing the Municipality to grant them preferential treatment. [4]The High Court held that the occupiers were unlawfully occupying the property and that it was in the public interest that their unlawful occupation be terminated. It said that in taking all the relevant statutory considerations into account it could not come to the conclusion that the relief sought should not be granted. The Court accordingly ordered the occupiers to vacate the land and authorised the Sheriff to demolish the structures if necessary, with the assistance of the police if required. It also ordered the occupiers to pay the costs of the proceedings. [5]The occupiers took the matter on appeal to the Supreme Court of Appeal (SCA). The SCA held that the [*15] occupiers were not seeking preferential treatment in the sense that they were asking for housing to be made available to them in preference to people in the housing queue. They were merely requesting that land be identified where they could put up their shacks and where they would have some measure of security of tenure. The SCA held further that the important consideration in the present case was the availability of suitable alternative land. This was so because of the length of time that the occupiers had occupied the land, and, more importantly, because the eviction order was not sought by the owners of the property but by an organ of State on the owners' behalf. The SCA held that given that on the papers it was unclear whether Walmer was land owned by the Municipality or privately owned, the High Court should not have granted the order sought without assurance that the occupiers would have some measure of security of tenure at Walmer. It accordingly upheld the appeal and set aside the eviction order. [6]The Municipality now applies to this Court for leave to appeal against the decision of the SCA and to have the eviction order restored. It has indicated that it is particularly [*16] concerned to get a ruling from this Court that when it seeks eviction of unlawful occupiers it is not constitutionally bound to provide alternative accommodation or land. [7]In opposing the application the occupiers contended that in essence it was based on a challenge to findings of fact made by the SCA and did not raise any constitutional matters. This argument must be rejected. The whole case turns on the interpretation to be given to various provisions in the Constitution, as well as to the statute adopted to give effect to a provision of the Constitution. IThe constitutional and statutory context The Prevention of Illegal Squatting Act 52 of 1951 [8]In the pre-democratic era the response of the law to a situation like the present would have been simple and drastic. n2 In terms of the Prevention of Illegal Squatting Act 52 of 1951 (PISA), the only question for decision would have been whether the occupation of the land was unlawful. Once it was determined that the occupiers had no permission to be on the land, they not only faced summary eviction, they were liable for criminal prosecution. Expulsion from land of people referred to as squatters was accordingly accomplished [*17] through the criminal and not the civil courts, and as a matter of public rather than of private law. The process was deliberately made as swift as possible: conviction followed by eviction. Thus, even if they had been born on the land and spent their whole lives there, persons from whom permission to remain on land had been withdrawn by new owners were treated as criminals and subjected to summary eviction. n3 [9]PISA was an integral part of a cluster of statutes that gave a legal/administrative imprimatur to the usurpation and forced removal of black people from land and compelled them to live in racially designated locations. For all black people, and for Africans in particular, dispossession was nine-tenths of the law. n4 Residential segregation was the cornerstone of the apartheid policy. This policy was aimed at creating [*18] separate "countries" for Africans within South Africa. Africans were precluded from


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owning and occupying land outside the areas reserved for them by these statutes. The Native Urban Areas Consolidation Act 25 of 1945, was premised on the notion of Africans living in rural reserves and coming to the towns only as migrant workers on temporary sojourn. Through a combination of spatial apartheid, permit systems and the creation of criminal offences the Act strictly controlled the limited rights that Africans had to reside in urban areas. People living outside of what were defined as native locations were regarded as squatters and, under PISA, were expelled from the land on which they lived. [10]Differentiation on the basis of race was accordingly not only a source of grave assaults on the dignity of black people. It resulted in the creation of large, well-established and affluent white urban areas co-existing side by side with crammed pockets of impoverished and insecure black ones. n5 The principles of ownership in the Roman-Dutch law then gave legitimation in an apparently neutral and impartial way to the consequences of manifestly racist and partial laws and policies. In this setting of State-induced inequality the nominally race-free PISA targeted black shack-dwellers with dramatically harsh effect. As Van der Walt has pointed out: "The 'normality' assumption that the owner was entitled to possession unless the occupier could raise and prove a valid defence, usually based on agreement with the owner, formed part of Roman-Dutch law and was deemed unexceptional in early South African law, and it still forms the point [*20] of departure in private law. However, it had disastrous results for non-owners under . . . apartheid land law: the strong position of ownership and the (legislatively intensified) weak position of black non-ownership rights of occupation made it easier for the architects of apartheid to effect the evictions and removals required to establish the separation of land holdings along race lines." n6 PISA accordingly gave the universal social phenomenon of urbanisation n7 an intensely racialised South African character. Everywhere the landless poor flocked to urban areas in search of a better life. This population shift was both a consequence of and a threat to the policy of racial segregation. PISA was [*21] to prevent and control what was referred to as squatting on public or private land by criminalising it and providing for a simplified eviction process. n8 The power to enforce politically motivated, legislatively sanctioned and State-sponsored eviction and forced removals became a cornerstone of apartheid land law. n9 This marked a major shift, both quantitatively and qualitatively (politically). Evictions could be sought by local government and achieved by use of criminal rather than civil law. n10 It was against this background and to deal with these injustices that section 26(3) of the Constitution was adopted and new statutory arrangements made. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) [11]The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) was adopted with the manifest objective of overcoming the above abuses and ensuring that evictions in future took place in a manner consistent with the values of the new constitutional dispensation. Its provisions have to be interpreted against this background. [12]PIE not only repealed PISA but in a sense inverted it: squatting was decriminalised and the eviction process was made subject to a number of requirements, some necessary to comply with certain demands of the Bill of Rights. The overlay between public and private law continued, but in reverse fashion, with the name, character, tone and context of the statute being turned around. Thus the first part of the title of the new law emphasised a shift in thrust from prevention of illegal squatting to prevention of illegal eviction. The former objective of reinforcing common-law remedies while reducing common-law protections, was reversed so as to temper common-law remedies with strong procedural and substantive protections; and the overall [*23] objective of facilitating the displacement and relocation of poor and landless black people for ideological purposes was replaced by acknowledgment of the necessitous quest


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for homes of victims of past racist policies. While awaiting access to new housing development programmes, such homeless people had to be treated with dignity and respect. [13]Thus, the former depersonalised processes that took no account of the life circumstances of those being expelled were replaced by humanised procedures that focused on fairness to all. People once regarded as anonymous squatters now became entitled to dignified and individualised treatment with special consideration for the most vulnerable. At the same time the second part of the title established that unlawful occupation was also to be prevented. The courts now had a new role to play, namely, to hold the balance between illegal eviction and unlawful occupation. Rescuing the courts from their invidious role as instruments directed by statute to effect callous removals, the new law guided them as to how they should fulfil their new complex and constitutionally ordained function: when evictions were being sought, the courts were to ensure [*24] that justice and equity prevailed in relation to all concerned. The broad constitutional matrix for the interpretation of PIE [14]In this context PIE cannot simply be looked at as a legislative mechanism designed to restore common-law property rights by freeing them of racist and authoritarian provisions, though that is one of its aspects. Nor is it just a means of promoting judicial philanthropy in favour of the poor, though compassion is built into its very structure. PIE has to be understood, and its governing concepts of justice and equity have to be applied, within a defined and carefully calibrated constitutional matrix. [15]As with all determination about the reach of constitutionally protected rights, the starting and ending point of the analysis must be to affirm the values of human dignity, equality and freedom. n11 One of the provisions of the Bill of Rights that has to be interpreted with these values in mind, is section 25, which reads: "Property (1)No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property." n12 The blatant disregard manifested by racist statutes for property rights in the past makes it all the more important that property rights be fully respected in the new dispensation, both by the state and by private persons. Yet such rights have to be understood in the context of the need for the orderly opening-up or restoration of secure property rights for those denied access to or deprived of them in the past. [16]As Ackermann J pointed out in First National Bank, n13 subsections (4) to (9) of section 25 underlined the need for and aimed at redressing one of the most enduring legacies of racial discrimination in the past, namely the grossly unequal distribution of land in South Africa. The details of these provisions had to be borne in mind whenever section 25 was being construed, because they emphasised that under the Constitution the protection of property as an individual right was not absolute but subject to societal considerations. His judgment went on to state: "The preamble to the Constitution indicates that one of the purposes of its adoption was to establish a society based, not only on 'democratic values' and 'fundamental human rights' but also on 'social justice'. Moreover the Bill of Rights places positive obligations on the State in regard to various social and economic rights. Van der Walt (1997) aptly explains the tensions that exist within section 25: '[T]he meaning of section 25 has to be determined, in each specific case, within an interpretative framework that takes due cognisance of the inevitable tensions which characterise the operation of the


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property clause. This tension between individual rights and social responsibilities has to be the guiding principle in terms of which the section is analysed, interpreted and applied in every individual case.'" The purpose of section 25 has to be seen both as protecting existing private property rights as well as serving the public interest, mainly in the sphere of land reform but not limited thereto, and also as striking a proportionate balance between these two functions . . . When considering the purpose and content of the property clause it is necessary, as Van der Walt (1997) [*28] puts it - '. . . to move away from a static, typically private-law conceptualist view of the constitution as a guarantee of the status quo to a dynamic, typically public-law view of the constitution as an instrument for social change and transformation under the auspices [and I would add 'and control'] of entrenched constitutional values.' That property should also serve the public good is an idea by no means foreign to pre-constitutional property concepts." n14 [17]The transformatory public-law view of the Constitution referred to by Van der Walt is further underlined by section 26, which reads: "Housing (1)Everyone has the right to have access to adequate housing. (2)The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3)No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant [*29] circumstances. No legislation may permit arbitrary evictions." Section 26(3) evinces special constitutional regard for a person's place of abode. It acknowledges that a home is more than just a shelter from the elements. It is a zone of personal intimacy and family security. Often it will be the only relatively secure space of privacy and tranquillity in what (for poor people in particular) is a turbulent and hostile world. Forced removal is a shock for any family, the more so for one that has established itself on a site that has become its familiar habitat. As the United Nations Housing Rights Programme report points out: "To live in a place, and to have established one's own personal habitat with peace, security and dignity, should be considered neither a luxury, a privilege nor purely the good fortune of those who can afford a decent home. Rather, the requisite imperative of housing for personal security, privacy, health, safety, protection from the elements and many other attributes of a shared humanity, has led the international community to recognise adequate housing as a basic and fundamental human right." n15 [18]It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when State action intensifies rather than mitigates their marginalisation. The integrity of the rights-based vision of the Constitution is punctured when governmental action augments rather than reduces denial of the claims of the desperately poor to the basic elements of a decent existence. Hence the need for special judicial control of a process that is both socially stressful and potentially conflictual.


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[19]Much of this case accordingly turns on establishing an appropriate constitutional relationship between section 25, dealing with property rights, and section 26, concerned with housing rights. The Constitution recognises that land rights and the right of access to housing and of not being arbitrarily evicted, are closely intertwined. The stronger the right to land, the greater the prospect of a secure home. Thus, the need to strengthen the precarious position of people living in informal settlements is recognised by section 25 in a number of ways. [*31] Land reform is facilitated, n16 and the State is required to foster conditions enabling citizens to gain access to land on an equitable basis; n17 persons or communities with legally insecure tenure because of discriminatory laws are entitled to secure tenure or other redress; n18 and persons dispossessed of property by racially discriminatory laws are entitled to restitution or other redress. n19 Furthermore, sections 25 and 26 create a broad overlap between land rights and socio-economic rights, emphasising the duty on the State to seek to satisfy both, as this Court said in Grootboom. n20 [20]There are three salient features of the way the Constitution approaches the interrelationship between land hunger, homelessness and respect for property rights. In the first place, the rights of the dispossessed [*32] in relation to land are not generally delineated in unqualified terms as rights intended to be immediately self-enforcing. For the main part they presuppose the adoption of legislative and other measures to strengthen existing rights of tenure, open up access to land and progressively provide adequate housing. Thus, the Constitution is strongly supportive of orderly land reform, but does not purport to effect transfer of title by constitutional fiat. n21 Nor does it sanction arbitrary seizure of land, whether by the State or by landless people. n22 The rights involved in section 26(3) are defensive rather than affirmative. The landowner cannot simply say: this is my land, I can do with it what I want, and then send in the bulldozers or sledgehammers. [21]A second major feature of this cluster of constitutional provisions is that through section 26(3) they expressly acknowledge that eviction of people living in informal settlements may take place, even if it results in loss of a home. [22]A third aspect of section 26(3) is the emphasis it places on the need to seek concrete and case-specific solutions to the difficult problems that arise. Absent the historical background outlined above, the statement in the Constitution that the courts must do what courts are normally expected to do, namely, take all relevant factors into account, would appear otiose (superfluous), even odd. Its use in section 26(3), however, serves a clear constitutional purpose. It is there precisely to underline how non-prescriptive the provision is intended to be. The way in which the courts are to manage the process has accordingly been left as wide open as constitutional language could achieve, by design and not by accident, by deliberate purpose and not by omission. [23]In sum, the Constitution imposes new obligations on the courts concerning rights relating to property not previously recognised by the common law. It counterposes to the normal ownership [*34] rights of possession, use and occupation, a new and equally relevant right not arbitrarily to be deprived of a home. The expectations that ordinarily go with title could clash head-on with the genuine despair of people in dire need of accommodation. n23 The judicial function in these circumstances is not to establish a hierarchical arrangement between the different interests involved, privileging in an abstract and mechanical way the rights of ownership over the right not to be dispossessed of a home, or vice versa. Rather it is to balance out and reconcile the opposed claims in as just a manner as possible taking account of all the interests involved and the specific factors relevant in each particular case. II The structure of PIE [24]PIE provides some legislative texture to guide the courts in determining the approach to [*35] eviction now required by section 26(3) of the Constitution. Its preamble makes clear that it was enacted to do so. n24 Its central operative provisions are section 4, which deals with evictions sought by owners or


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persons in charge of property, n25 and section 6, which is concerned with eviction proceedings brought by organs of state. There is considerable difference in detail between the two provisions. They emphasise that a distinction has to be made on the basis of whether the application for eviction is brought by the owner of property or by the Municipality. This case deals with proceedings brought under section 6 by the Municipality and does not require us to consider whether it would have taken a different form if it had been brought directly by owners themselves under section 4. Despite their differences both sections emphasise the central role courts have to ensure equity after considering all relevant circumstances. [25]Section 6, the governing provision in the present matter, reads: "6.Eviction at instance of organ of State.- (1)An organ of State may institute proceedings for the eviction of an unlawful occupier from land which falls within its area of jurisdiction, except where the unlawful occupier is a mortgagor and the land in question is sold in a sale of execution pursuant to a mortgage, and the court may grant such an order if it is just and equitable to do so, after considering all the relevant circumstances, and if - (a)the consent of that organ of State is required for the erection [*37] of a building or structure on that land or for the occupation of the land, and the unlawful occupier is occupying a building or structure on that land without such consent having been obtained; or (b)it is in the public interest to grant such an order. (2)For the purposes of this section, "public interest" includes the interest of the health and safety of those occupying the land and the public in general. (3)In deciding whether it is just and equitable to grant an order for eviction, the court must have regard to - (a)the circumstances under which the unlawful occupier occupied the land and erected the building or structure; (b)the period the unlawful occupier and his or her family have resided on the land in question; and (c)the availability to the unlawful occupier of suitable alternative accommodation or land." Simply put, the ordinary prerequisites for the Municipality to be in a position to apply for an eviction order are that the occupation is unlawful and the structures are either unauthorised, or unhealthy or unsafe. n26 Contrary to the pre-constitutional position, however, the mere establishment of these facts does not require the court to make an eviction [*38] order. In terms of section 6, they merely trigger the court's discretion. If they are proved, the court then may (not must) grant an eviction order if it is just and equitable to do so. In making its decision it must take account of all relevant circumstances, including the manner in which occupation was effected, its duration and the availability of suitable alternative accommodation or land. "The circumstances of the occupation of the land" [26]A distinction could be drawn between occupation with the consent of the landowner but involving structures that do not meet with by-law requirements, a health hazard, and occupation in the face of landowner opposition. Different considerations could arise depending on whether the land occupied is public or privately owned. In the case of public [*39] land, the State generally has further land to meet its


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obligations in terms of section 26 of the Constitution, while in the case of privately owned land there is normally no alternative land available unless the State takes steps to acquire some. On the other hand, private land may be derelict, with the owners having little practical interest in its utilisation, while public land may have been set aside for important public purposes, including the provision of housing. The motivation for settling on the land could be of importance. The degree of emergency or desperation of people who have sought a spot on which to erect their shelters, would always have to be considered. Furthermore, persons occupying land with at least a plausible belief that they have permission to be there can be looked at with far greater sympathy than those who deliberately invade land with a view to disrupting the organised housing programme and placing themselves at the front of the queue. The public interest requires that the legislative framework and general principles which govern the process of housing development should not be undermined and frustrated by the unlawful and arbitrary actions of a relatively [*40] small group of people. n27 Thus the well-structured housing policies of a municipality could not be allowed to be endangered by the unlawful intrusion of people at the expense of those inhabitants who may have had equal claims to be housed on the land earmarked for development by the applicant. Municipalities represent all the people in their area and should not seek to curry favour with or bend to the demands of individuals or communities, whether rich or poor. They have to organise and administer their affairs in accordance with the broader interests of all the inhabitants. "The period the unlawful occupier and his or her family have been on the land" [27]Section 6 does not make the explicit distinction that section 4 does between occupation for less than six months and occupation for longer. Clearly, however, eviction proceedings speedily undertaken would be more readily sustained than those instituted after a long period of occupation without [*41] objection. PIE does not envisage any set formula connecting time to stability, such as that which would be necessary for prescription or a statute of limitations. Its concern is with time as an element of fairness. Justice and equity require showing special concern when settled communities or individuals are faced with being uprooted. The longer the unlawful occupiers have been on the land, the more established they are on their sites and in the neighbourhood, the more well settled their homes and the more integrated they are in terms of employment, schooling and enjoyment of social amenities, the greater their claim to the protection of the courts. A court will accordingly be far more cautious in evicting well-settled families with strong local ties, than persons who have recently moved on to land and erected their shelters there. And should it decide that eviction is called for in the former case, it will be especially astute to ensure that equitable arrangements are made to diminish its negative impact. "The availability of suitable alternative accommodation or land" [28]Section 6(3) states that the availability of a suitable alternative place to go to is something to which [*42] regard must be had, not an inflexible requirement. There is therefore no unqualified constitutional duty on local authorities to ensure that in no circumstances should a home be destroyed unless alternative accommodation or land is made available. In general terms, however, a court should be reluctant to grant an eviction against relatively settled occupiers unless it is satisfied that a reasonable alternative is available, even if only as an interim measure pending ultimate access to housing in the formal housing programme. n28 [29]The availability of suitable alternative accommodation will vary from municipality to municipality and be affected by the number of people facing eviction in each case. The problem will always be to find something suitable for the unlawful occupiers without prejudicing the claims of lawful occupiers and those in line for formal housing. In this respect it is important that the actual situation of the persons concerned be taken account of. It is not enough to have a programme that works in theory. The Constitution requires that everyone must be treated with care and concern; if the measures though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test. n29


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In a society founded on human dignity, equality and freedom it cannot be presupposed that the greatest good for the many can be achieved at the cost of intolerable hardship for the few, particularly if by a reasonable application of judicial and administrative statecraft such human distress could be avoided. Thus it would not be enough for the municipality merely to show that it has in place a programme that is designed to house the maximum number of homeless people over the [*44] shortest period of time in the most cost effective way. The existence of such a programme would go a long way towards establishing a context that would ensure that a proposed eviction would be just and equitable. It falls short, however, from being determinative of whether and under what conditions an actual eviction order should be made in a particular case. "Considering all the relevant circumstances" [30]There is nothing in section 6 to suggest that the three specifically identified circumstances are intended to be the only ones to which the court may refer in deciding what is just and equitable. They are peremptory but not exhaustive. It is clear both from the open-ended way in which they are framed and from the width of decision-making involved in the concept of what is just and equitable, that the court has a very wide mandate and must give due consideration to all circumstances that might be relevant. Thus the particular vulnerability of occupiers referred to in section 4 (the elderly, children, disabled persons and households headed by women) could constitute a relevant circumstance under section 6. Similarly, justice and equity would take account of the extent to which serious negotiations had taken place with equality of voice for all concerned. What is just and equitable could be affected by the reasonableness of offers made in connection with suitable alternative accommodation or land, the time scales proposed relative to the degree of disruption involved, and the willingness of the occupiers to respond to reasonable alternatives [*46] put before them. [31]The combination of circumstances may be extremely intricate, requiring a nuanced appreciation of the specific situation in each case. Thus, though there might be a sad uniformity in the conditions of homelessness and desperation which lead to unlawful occupations, on the one hand, and the frustration of landowners at being blocked by intruders from enjoyment of their property, on the other, the actual details of the relationships involved are capable of infinite variation. n30 It is not easy to classify the multitude of places and relationships involved. This is precisely why, even though unlawfulness is established, the eviction process is not automatic and why the courts are called upon to exercise a broad judicial discretion on a case by case basis. Each case accordingly has to be decided not on generalities but in the light of its own particular circumstances. Every situation has its own history, its own dynamics, its own intractable elements that have to be lived with (at least for the time being), and its own creative possibilities that have to be explored as far as reasonably possible. The proper application of PIE will therefore depend on the facts [*47] of each case, and each case may present different facts that call for the adoption of different approaches. "Must have regard to" [32]The obligation on the court is to "have regard to" the circumstances, that is, to give them due weight in making its judgment as to what is just and equitable. The court cannot fulfil its responsibilities in this respect if it does not have the requisite information at its disposal. It needs to be fully apprised of the circumstances before it can have regard to them. It follows that although it is incumbent on the interested parties to make all relevant information available, technical questions relating to onus of [*48] proof should not play an unduly significant role in its enquiry. The court is not resolving a civil dispute as to who has rights under land law; the existence of unlawfulness is the foundation for the enquiry, not its subject matter. What the court is called upon to do is to decide whether, bearing in mind the values of the Constitution, in upholding and enforcing land rights it is appropriate to issue an order which has the effect of depriving people of their homes. n31 Of equal concern, it is determining the conditions under which, if


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it is just and equitable to grant such an order, the eviction should take place. n32 Both the language of the section and the purpose of the statute require the court to ensure that it is fully informed before undertaking the onerous and delicate task entrusted to it. In securing the necessary information, the court would therefore be entitled to go beyond the facts established in the papers before it. Indeed when the evidence submitted by the parties leaves important questions of fact obscure, contested or uncertain, the court might be obliged to procure ways of establishing the true state of affairs, so as to enable it properly to "have regard" to [*49] relevant circumstances. "Just and equitable" [33]In Port Elizabeth Municipality v Peoples Dialogue on Land and Shelter and Others, n33 a case with some similarities to the present, section 6 was helpfully analysed by Horn AJ. He pointed out that in matters brought under PIE one is dealing with two diametrically opposed fundamental interests. On the one hand there is the traditional real right inherent in ownership reserving exclusive use and protection of property by the landowner. On the other hand there is the genuine despair of people in dire need of adequate accommodation. It was with this regard that the legislature had by virtue of its provisions [*50] of PIE set about implementing a procedure which envisaged the orderly and controlled removal of informal settlements. It is the duty of the court in applying the requirements of the Act to balance these opposing interests and bring out a decision that is just and equitable. He went on to say that the use of the term "just and equitable" relates to both interests, that is what is just and equitable not only to the persons who occupied the land illegally but to the landowner as well. He held that the term also implies that a court, when deciding on a matter of this nature, would be obliged to break away from a purely legalistic approach and have regard to extraneous factors such as morality, fairness, social values and implications and circumstances which would necessitate bringing out an equitably principled judgment. [34]Finally Horn AJ went on to emphasise that each case would have to be decided on its own facts. Hopefully once the housing shortage had been overcome [*51] incidents of unlawful invasion of property by desperate communities in search of accommodation would disappear. In the interim the courts would do the best they could and apply criteria that were just and equitable and acceptable to all concerned. What remained essential, he concluded, was that removals be done in a fair and orderly manner and preferably with a specific plan of resettlement in mind. [35]The approach by Horn AJ has been described both judicially and academically as sensitive and balanced. n34 I agree with that description. The phrase "just and equitable" makes it plain that the criteria to be applied are not purely of the technical kind that flow ordinarily from the provisions of land law. The emphasis on justice and equity underlines the central philosophical and strategic objective of PIE. Rather than envisage the foundational values of the rule of law and the achievement of equality as being distinct from and in tension with each other, PIE treats these values as interactive, complementary and mutually reinforcing. The necessary reconciliation can only be attempted by a close analysis of the actual specifics of each case. [36]The court is thus called upon to go beyond its normal functions, and to engage in active judicial management according to equitable principles of an ongoing, stressful and law-governed social process. This has major implications for the manner in which it must deal with the issues before it, how it should approach questions of evidence, the procedures it may adopt, the way in which it exercises its powers and the orders it might make. n35 The Constitution and PIE require that in addition to considering the lawfulness of the occupation the court must have regard to the interests and circumstances of the occupier and pay due regard to broader considerations of fairness and other constitutional values, so as to produce a just and equitable result.


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[37]Thus, PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and promote the constitutional vision of a caring society based on good neighbourliness and shared concern. The Constitution and PIE confirm that we are not islands unto ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. n36 It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern. [38]The inherited injustices at the macro level will inevitably make it difficult for the courts to ensure immediate present-day equity at the micro level. The judiciary cannot of itself correct all the systemic unfairness to be found in our society. Yet it can at least soften and minimise the degree of injustice and inequity which the eviction of the weaker parties in conditions of inequality of necessity entails. As the authors of the minority judgment in the second abortion case in the German Federal Constitutional Court pointed out, there are some problems based on contradictory values that are so intrinsic to the way our society functions that neither legislation nor the courts can "solve" them with "correct" answers. n37 When dealing with the dilemmas posed by PIE, the courts must accordingly do as well as they can with the evidential and procedural resources at their disposal. III Mediation [39]In seeking to resolve the above contradictions, the procedural and substantive aspects of justice and equity cannot always be separated. The managerial role of the courts may need to find expression in innovative ways. Thus one potentially dignified and effective mode of achieving sustainable reconciliations of the different interests involved is to encourage and require the parties to engage with each other in a proactive and honest endeavour to find mutually acceptable solutions. Wherever possible, respectful face-to-face engagement or mediation through a third party should replace arms-length combat by intransigent opponents. [40]Compulsory mediation n38 is an increasingly common feature of modern systems. It should be noted, however, that the compulsion lies in participating in the process, not in reaching a settlement. In South Africa, mediation or conciliation are compulsory in many cases before labour disputes are brought before a court. n39 Mediation in family matters, too, though not compulsory, is increasingly common in many jurisdictions. n40 [41]Thus, those seeking eviction should be encouraged not to rely on concepts of faceless and anonymous squatters automatically to be expelled as obnoxious social nuisances. Such a stereotypical approach has no place in the society envisaged by the Constitution; justice and equity require that everyone is to be treated as an individual bearer of rights entitled to respect for his or her dignity. At the same time those who find themselves compelled by poverty and landlessness to live in shacks on the land of others, should be discouraged from regarding themselves as helpless victims, lacking the possibilities of personal moral agency. The tenacity and ingenuity they show in making homes out of discarded material, in finding work and sending their children to school, are a tribute to their capacity for survival and adaptation. Justice and equity oblige them to rely on this same resourcefulness in seeking a solution to their plight and to explore all reasonable possibilities of securing suitable alternative accommodation or land. [42]Not only can mediation reduce the expenses of litigation, it can help avoid the exacerbation of tensions that forensic combat produces. By bringing [*57] the parties together, narrowing the areas of dispute between them and facilitating mutual give-and-take, mediators can find ways round sticking-


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points in a manner that the adversarial judicial process might not be able to do. Money that otherwise might be spent on unpleasant and polarising litigation can better be used to facilitate an outcome that ends a stand-off, promotes respect for human dignity and underlines the fact that we all live in a shared society. [43]In South African conditions, where communities have long been divided and placed in hostile camps, mediation has a particularly significant role to play. The process enables parties to relate to each other in pragmatic and sensible ways, building up prospects of respectful good neighbourliness for the future. Nowhere is this more required than in relation to the intensely emotional and historically charged problems with which PIE deals. Given the special nature of the competing interests involved in eviction proceedings launched under section 6 of PIE, absent special circumstances it would not ordinarily be just and equitable to order eviction if proper discussions, and where appropriate, mediation, have not been attempted. [*58] [44]In the light of the above considerations, parties to this appeal were given an opportunity to address argument on the legality and propriety of this Court itself ordering mediation. The Chief Justice issued further directions on this topic. n41 Neither party, however, indicated unqualified support for mediation. The Municipality's response was that while section 7 of PIE n42 placed no obligation on a municipality to appoint a mediator, there was sufficient indication in PIE and the Constitution for a court to make such an order as a precursor to granting an eviction order. It accordingly favoured an eviction order, to be suspended while mediation was being tried. The occupiers' answer, on the other hand, was that none of the express powers given to the court by PIE conferred authority on the court to order parties to subject themselves to mediation as a precursor to the granting of an eviction order. They contended that if the Municipality had truly wished to go to mediation, it could have done so prior to launching its application; having failed in the SCA, it should not be entitled to a second bite of the cherry, and should stand or fall by its evidence in the application [*59] for eviction. Should the application for leave to appeal be refused, however, the occupiers undertook then to participate in any process of mediation suggested by the Municipality, provided that a mediator be appointed by a Member of the Executive of the Eastern Cape provincial government. [45]In my view, section 7 of PIE is intended to be facilitative rather than exhaustive. It does not purport, either expressly or by necessary implication, to limit the very wide power entrusted to the court to ensure that the outcome of eviction proceedings will be just and equitable. As has been pointed out, section 26(3) of the Constitution and PIE between them give the courts the widest possible discretion in eviction proceedings, taking account of all relevant circumstances. One of the relevant circumstances in deciding whether an eviction order would be just and equitable would be whether mediation has been tried. n43 In appropriate circumstances the courts should themselves order that mediation be tried. [46]It appears that from the beginning the parties have been at loggerheads with each other. The Municipality's position has been that it would consider negotiating with the occupiers only once an eviction order had been granted. The occupiers for their part have acknowledged that they will have to move, but have not accepted the proposal that they move to Walmer, where they claim that conditions are bad and they might be subjected to further eviction. There are only nine households and three single persons to be dealt with. Each family situation has its own particularities, and the possibilities of individualised responses rather than a blanket solution could not be ruled out. The endless war of attrition between the parties has been to no-one's advantage. The Municipality could have explored the potential of the landowners to have made a contribution towards a solution. [47]The question arises whether it is permissible or appropriate for this Court to order mediation when its use or non-use has not been considered either by the court of first instance or by the SCA. By the time an appeal is heard some of the advantages of mediation are lost. There is no saving on forensic expense, [*62] no avoidance of the law's delay, and no minimisation of litigious rancour. Further, the chances of successful mediation are usually at their highest when the outcome of litigation is at its most uncertain. In


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the present matter neither party supports it unconditionally at this stage. Not without hesitation, I have come to the conclusion that too much water has flowed under the bridge to make it appropriate that mediation be attempted now. The fact that mediation has not been tried will, however, be an important factor in determining whether it is just and equitable for an eviction order to be made. With this consideration in mind, I turn to consider the Municipality's appeal against the decision of the SCA. IV Should the decision of the SCA be overturned? [48]It is necessary now to consider whether the application for leave to appeal should be granted. In considering this question it is important to identify the relevant facts of this case to which the legal principles identified above must be applied. The Municipality launched motion proceedings to seek the eviction of the occupiers. Many of the facts it alleged in its founding affidavits were disputed by the occupiers in response. [*63] Accordingly we must accept those facts asserted by the applicant that remain undenied by the respondent, together with the facts as alleged by the respondents. n44 [49]The occupiers have built shacks on privately owned land in the suburb of Lorraine, in Port Elizabeth. It is clear that the shacks were erected without the necessary approval from the Municipality. Accordingly, the requirement of section 6(1)(a) of the Act is met. n45 The occupiers assert that eight of the respondent families have resided on the land for eight years n46 (as at August 2000 when the answering affidavits were signed), three of them for four years n47 and only one family for two years. n48 They aver that most of them moved to the land in Lorraine after having been evicted from land in Glenroy, Port Elizabeth. They also state that they are willing to move again but want to do so only if they are provided with a piece of land upon which to live "without [*64] fear of further eviction" until they are provided with housing in terms of the Municipality's housing scheme. In this short tale, the hard realities of urbanisation and homelessness in South Africa are captured. [50]The occupiers claim that when they moved onto the land they were given permission to do so by a woman whom they assumed to be the owner. The Municipality, in reply, filed affidavits on behalf of all the owners of the erven concerned indicating that the current occupiers do not have permission to reside on the land. These specific and emphatic denials must be accepted to establish that the occupiers, even if they were once given permission to occupy the land by an owner, no longer have permission to do so. However, the owners do not assert that they require the land for their own personal use at this stage. [51]It is clear from the Municipality's affidavits that the land is vacant land, upon which some trees and bushes are growing, but that it is not being used by the owners at present for any productive purpose. The Municipality wishes the occupiers to move because firstly, it has received a petition signed by 1600 members of the public requesting the Municipality to move the occupiers, and secondly because it asserts that the conditions in which the occupiers are occupying the land constitute a health risk because of the absence of toilet facilities. The Municipality indicates [*66] that it has no obligation to house these particular families. It states that it has established a "four peg housing programme" to provide site and service facilities to the homeless in its area and that the applicants can apply to be part of that programme, though it admits it will take some time for them to be provided with appropriate site and service facilities. [52]The occupiers deny that their occupation of the land creates a health risk. They state that they use pit latrines which are hygienic. They also state that they obtain water on a daily basis from a gentleman at the nearby Riding Club, though this allegation, in turn is denied by the Municipality. The occupiers also admit that they are willing to register for the four peg housing scheme but are concerned about where they should live in the meanwhile. [53]In determining whether the Municipality is entitled to obtain the eviction of the occupiers, the three criteria mentioned in section 6 of the Act must be considered: the circumstances under which the unlawful


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occupier occupied the land and erected the structures; the period the occupier has resided on the land, and the availability of suitable alternative land. [*67] It is clear from what has been said above that the occupiers moved onto the land with what they considered to be the permission of the owner and that they have been there for a long period of time. Eight children are attending local schools in the area and several of the adults have work nearby. [54]The Municipality, in its founding affidavit, pointed to two possible sites as suitable alternative land: the first was Walmer, which the occupiers reject as being overcrowded and unsafe; the second is Greenbushes, which the occupiers reject as being too far away for them to go to their work and for their children to school in the Lorraine area. It is quite clear that the Municipality has not entered into any discussions with the respondents, who are a relatively small group of people (only 68), to identify their particular circumstances or needs. The occupiers do mention two areas, Seaview and Fairview, as potentially suitable alternative land, but the Municipality does not address these suggestions in their reply. Indeed in their reply the Municipality states bluntly: ". . . [the] Applicant is under no duty to make suitable alternative land available for this particular group of [*68] people over and above its existing Housing Programme as set out in Applicant's Founding Affidavit and I repeat Applicant's invitation to Respondents to register under the Applicant's Housing Programme in order to be eligible for benefits under the scheme." The Municipality also states: "It is respectfully submitted on behalf of the Applicant that what the Respondents have sought to do is unilaterally occupy private land and then, when requested to vacate, the Respondents have alleged that they have nowhere else to go and the Applicant must solve their problem by providing alternative land." [55]These paragraphs capture the nub of the Municipality's case. It asserts that having established a four peg housing programme, it need do no more to accommodate individually homeless families such as the occupiers than offer them registration in that housing programme which, it admits, may not provide housing for the occupiers for some years. It is not accurate, however, on the facts before us to define the occupiers as "queue jumpers". They are a community who are homeless, who have been evicted once, and who found land to occupy with what they considered to be the permission of the [*69] owner where they have been residing for eight years. This is a considerable period of time. The Municipality now seeks to evict them without any discussion with them, or consideration of their request that they be provided with security of tenure on a suitable piece of land pending their accommodation in the housing programme. [56]In considering whether it is "just and equitable" to make an eviction order in terms of section 6 of the Act, the responsibilities that municipalities, unlike owners, bear in terms of section 26 of the Constitution are relevant. As Grootboom (supra) indicates, n49 municipalities have a major function to perform with regard to the fulfilment of the rights of all to have access to adequate housing. Municipalities, therefore, have a duty systematically to improve access to housing for all within their area. They must do so on the understanding that there are complex socio-economic problems that lie at the heart of the unlawful occupation of land in the urban areas of our country. They must attend to their duties with insight and a sense of humanity. Their duties extend beyond the development of housing schemes, to treating those within their jurisdiction [*70] with respect. Where the need to evict people arises, some attempts to resolve the problem before seeking a court order will ordinarily be required. [57]From the papers it appears that the Municipality in this matter took no action against the occupiers for years and then acted precipitately to secure an eviction. The Municipality took only cursory steps to ascertain the circumstances of the occupiers, and to establish whether they had made any effort to apply for housing. It took no steps to seek to address the problems of the occupiers at all before launching


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eviction proceedings, despite the fact that the land was not needed by the owners or the Municipality, and despite the fact that the occupiers are a small group of people who have resided on the land for a considerable time. [58]Much of the argument in this Court turned on whether or not the Municipality had established on the papers that Walmer was an area under its control, so that the suggestion it made that the occupiers [*71] could relocate to Walmer established the availability of suitable alternative land within the definition of section 6(3)(c) of the Act. It is not appropriate to determine the question of eviction on the precise legal status of Walmer. The real question in this case is whether the Municipality has considered seriously or at all the request of these occupiers that they be provided with suitable alternative land upon which they can live "without fear of eviction" until provided with housing by the Municipality. The thrust of the SCA judgment makes this clear. The lack of information concerning the status of Walmer highlighted the failure of the Municipality to show that it had responded reasonably to the dire situation of the occupiers. The availability of suitable alternative accommodation is a consideration in determining whether it is just and equitable to evict the occupiers, it is not determinative of that question. [59]To sum up: in the light of the lengthy period during which the occupiers have lived on the land in question, the fact that there is no evidence that either the Municipality or the owners of the land need to evict the occupiers in order to put the land to some [*72] other productive use, the absence of any significant attempts by the Municipality to listen to and consider the problems of this particular group of occupiers, and the fact that this is a relatively small group of people who appear to be genuinely homeless and in need, I am not persuaded that it is just and equitable to order the eviction of the occupiers. [60]In the circumstances, the application for leave to appeal fails and the Municipality is ordered to pay the costs of the respondents, including the costs of two counsel. [61]It remains only to be said that this decision in no way precludes further efforts to find a solution to a situation that is manifestly unsatisfactory to all concerned. In cases like the present it is particularly important that the Municipality not appear to be aligned with one side or the other. It must show that it is equally accountable to the occupiers and to the landowners. Its function is to hold the ring and to use what resources it has in an even-handed way to find the best possible solutions. If it cannot itself directly secure a settlement it should promote a solution through the appointment of a skilled negotiator acceptable to all sides, [*73] with the understanding that the mediation proceedings would be privileged from disclosure. On the basis of this judgment a court involved in future litigation involving occupiers should be reluctant to accept that it would be just and equitable to order their eviction if it is not satisfied that all reasonable steps had been taken to get an agreed, mediated solution.

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