WUNRN
Status
of Women Canada (SWC) is the federal government agency which
promotes gender equality, and the full participation of women in the economic,
social, cultural and political life of the country. SWC
focuses its work in three areas: improving women's economic autonomy and
well-being, eliminating systemic violence against women and children, and
advancing women's human rights.
Social assistance and civil legal aid are in trouble in Canada. These social programs are vital to the realization of women's rights to equality and security of the person.
Since the repeal of the Canada Assistance Plan (CAP) in 1995, social assistance and civil legal aid have been in decline, with devastating effects for the poorest women. The Canada Assistance Plan provided for cost sharing between the federal government and the provinces for social assistance and related services. Under its terms, provinces and territories were required to spend federal monies on designated programs and to meet legislated standards for social assistance. The Plan was replaced by the Canada Health and Social Transfer, which provided unconditioned funding to the provinces; spending designations and standards, except for those in the Canada Health Act, were removed.
On its face, CAP was neither a gender-specific nor a human rights-promoting instrument. But, the spending designations and the standards set out in CAP were an important means of protecting the right of everyone to an adequate standard of living and of promoting women's human rights. They helped to ensure that the poorest women had basic economic security and access to justice. The Canada Assistance Plan also went some distance toward satisfying section 36(1)(c) of the Constitution, which commits federal and provincial governments to "providing essential public services of reasonable quality to all Canadians." The Canada Assistance Plan terms offered strong incentives to all provinces and territories to provide social assistance and civil legal aid to their residents; it also ensured that social assistance schemes met specified criteria of adequacy.
In 1995, Canadian women were told that shifting to unconditional block funding would increase innovation by the provinces and foster improvements in basic social programs. But after 10 years, the evidence shows that this has not occurred. Instead, social assistance and civil legal aid for family law and poverty law — the areas of law in which women most often need legal assistance — have been devastated by cuts and the imposition of new rules that shrink access. Welfare rates have been called "cruel and punitive" by the National Council of Welfare, and they stand at lower levels now than 10 years ago. Civil legal aid is in a crisis across the country, with many women who need legal assistance unable to obtain it.
Since social programs, such as social assistance and civil legal aid, are such an important means for fulfilling women's human rights, it is essential to ensure that they are available to all women no matter where they live in Canada, and that the programs are adequate to satisfy rights to equality and security of the person, in keeping with section 36 of the Constitution. Standards for social programs are the interface between social programs and the human rights norms to which Canada has committed itself in various ways over more than 50 years. National standards put flesh on the bones of the human rights norms, particularizing what is required to satisfy them.
In the absence of standards set through conditions attached to federal transfers, another possibility was that human rights mechanisms — courts, human rights tribunals and international treaty bodies — might fill the post-CAP vacuum by setting standards for social programs through adjudication of complaints and constitutional challenges, based on rights to equality and security of the person, and through reviews of Canada's compliance with its treaty obligations. But governments have resisted fiercely the notion that courts and tribunals could hold them accountable for the ways in which they spend public money even when social spending is the means of giving life to constitutional and statutory human rights norms. Governments have exhibited particular resistance to acknowledging any obligation to spend money to address poverty or group-based patterns of inequality, even denying that there is an obligation to pay women equal pay. In turn, the response of the courts to government efforts to weaken the Charter and women's human rights, has, with some exceptions, been to submit to the will of governments rather than to defend the interests of society's most disadvantaged groups. Even functioning at their best, courts and tribunals could never provide, through adjudication, a complete substitute for legislated national standards. But the helpful role they could play, by recalling governments to their obligations and providing remedies to people who have been wrongly denied access to crucial benefits and protections, has been diminished, not enhanced, during this decade.
Interestingly, international treaty bodies, reviewing Canada's compliance with its human rights obligations, have been most responsive in the era of social program erosion. Both the Committee on Economic, Social and Cultural Rights and the Committee on the Elimination of Discrimination Against Women have expressed detailed concerns about the absence of national standards, particularly for social assistance and civil legal aid. Both bodies have urged Canada to consider re-establishing standards by attaching conditions to federal transfers. But there is no discernible official response on the part of Canada to the treaty bodies' comprehensive and consistent recommendations.
Another possibility after the repeal of CAP was that federal, provincial and territorial governments would collaborate to produce new standards for social programs. Many proponents of federal government withdrawal from standard setting viewed the new Social Union Framework Agreement (SUFA), created in 1997, as an alternative vehicle through which national standards could be designed and agreed upon by first ministers, making federally legislated standards unnecessary. But, despite its promise as an umbrella framework agreement for Canada's social programs, the SUFA has not produced federal–provincial/territorial agreement on new pan-Canadian standards for these key social programs, and there is no reason to think that it will.
Given that social assistance and civil legal aid have been permitted to erode significantly over the last decade, that provinces and territories have not produced new standards and that courts, tribunals and treaty bodies have been unable to fill the post-CAP vacuum, the federal government's constitutionally approved power to attach conditions to its social spending continues to be an essential tool for promoting women's human rights and for securing the terms of Canada's social union.
In the 2004 budget, the federal government divided the Canada Health and Social Transfer into the Canada Health Transfer (CHT) and the Canada Social Transfer (CST). These two transfers are now designed to support health care on the one hand (CHT) and post-secondary education, social assistance, related social services, and early childhood and early learning programs on the other (CST).
The creation of a separate CST provides an important opportunity for re-establishing and strengthening standards, thereby stemming the tide of the damage to the social union, and vindicating Canada's reputation as a promoter of human rights.
Inevitably, talking about "national" standards raises the "national question": what about Quebec? An asymmetrical approach can permit a strong role for the federal government in setting standards and conditions for social programs delivered in the provinces and territories outside Quebec, while the Quebec government plays a leading role in the design and delivery of similar programs in Quebec. Parallel but different delivery and accountability mechanisms for Quebec and the rest of Canada are possible and appropriate.
The fact that the CST is a federal fiscal tool does not mean the federal government needs to, or should, act alone. However, the federal government has a primary responsibility to restore national standards, because it has the greatest structural capacity to do so, and federal government intervention is overdue. If there is to be a social union, no government — federal, provincial or territorial — can act without constraints. To make the federal transfers work, the federal government has a responsibility to establish standards and provide stable fiscal contributions to support provincially delivered programs, while the provinces have a responsibility to account for the expenditure of the money, and comply with pan-Canadian (or Quebec) standards.
New federal legislation is required. A new social programs act should set out the authority and responsibility of the federal government with respect to the CST, along with the conditions that are attached to it, and the procedures and mechanisms for holding federal, provincial and territorial governments accountable for expenditures and adherence to standards. The social programs act should:
This is a crucial moment for women. Currently, women face the prospect of further decentralization, no standards and more withdrawal by governments from the provision of social programs, particularly those that matter to the most disadvantaged women. Women must not permit further erosion of Canada's social programs, but rather urge governments to reinvigorate and redesign the system of federal transfers to ensure social programs reflect women's needs and satisfy Canada's commitments to women's human rights.
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