Grace et al vs Attorney General of BC et al

by Roxane Marie Vachon

On June 14, 2000, Madam Justice Baker declared invalid the Welfare regulations which denied income assistance benefits to BC residents if they were named in an unexecuted warrant in regards to an indictable offence.

These regulations came into force in March 1997. As a result, some lawyers practising poverty law and advocates assisting some of the most financially disadvantaged persons noticed a steep increase in the persons being denied income assistance due to an outstanding warrant. These warrants would typically be for old charges of a less than serious nature and often from another province.

Carol Rosset, Counsel with the Legal Services Society of BC, together with David Mossop of the Community Legal Assistance Society and Judy Parrack and Pat MacDonald from the Public Interest Advocacy Centre challenged the Constitutionality of these provisions on behalf of three petitioners.

One of the petitioners, Nicole Walker, was at the time of the proceedings a 19-year-old single mother. She moved from Ontario to BC with her infant. She was living in a transition house in the lower mainland with her baby when she applied for income assistance. She was denied benefits on the grounds that there was an outstanding warrant for her arrest in Ontario. The warrant was with respect to a charge of theft of a value not exceeding $5,000. Her former common law spouse had filed a complaint with the police alleging that Ms. Walker had taken a CD player, a microwave and some meat that the complainant claimed was his property.

The Welfare regulation incorporated by reference the definition of "indictable offence" in the Canada Interpretation Act.

One other petitioner, Brian Grace was at the time a 36 year old single man who had been laid off work. Mr. Grace was also denied income assistance benefits because of an outstanding warrant from Montreal as a result of a 1995 incident where he was arrested for dancing in the wrong area at a rock concert.

In order to qualify for income assistance and be able to get financial assistance to secure housing and to receive support monies these two persons were obliged to waive their criminal charges to BC. This involved indicating an intent to plead guilty despite the fact that they were unable to admit guilt.

The regulations were challenged on several grounds. The lawyers argued that the regulations were ultra vires the Income Assistance Act, the regulations were in pith and substance criminal law and thus of Federal jurisdiction pursuant to section 91(27) of the Constitution Act 1867. The regulations infringed the mobility rights recognized in section 6(2) of the Charter, sections 7 and 11 of the Charter and infringed equality rights recognized pursuant to section 15 of the Charter by discriminating against persons who are poor in requiring that these persons with outstanding warrants deal with the warrant or charge in order to receive income assistance benefits.

Documents obtained through the Freedom of Information and Protection of Privacy Act showed that the welfare Minister's stated purposes in creating this eligibility rule included: ensuring that the Province of BC did not "fund the flight of fugitives"; and deterring "inappropriate recipients" from getting on the Welfare rolls.

The impugned regulations were part of sweeping changes to BC's welfare programs resulting in the replacement of the GAIN Act with the BC Benefits Act. The Province argued that with the repeal of GAIN the relief of poverty was no longer the purpose of the welfare program and that the allocation of resources was the overriding purpose. As such, the allocation of resources allowed the government to make policy decisions and to enact regulations to ensure the allocation of these resources to the persons it considered the most deserving of welfare benefits.

Madam Justice Baker took the view that despite the repeal of the GAIN Act, the purpose of the legislation remained the providing of income support to the residents of BC who are in need and the relief of poverty and neglect in a financially accountable manner. She found that there was no evidence supporting the proposition that the denial of benefits to persons with outstanding warrants was related to the purpose of the legislation and declared the regulations invalid as ultra vires the Act.

She further found the government could not create regulations that draw an unreasonable distinction between groups of people. In this case, the distinction was unreasonable because it was arbitrary and unrelated to the object and purpose of the Act.

The practical effect of the decision for persons in need is that the Ministry of Social Development and Economic Security no longer asks welfare applicants whether they have an outstanding warrant and no longer conducts CPIC checks on applicants.

The existence of a warrant is now irrelevant to welfare eligibility.

Roxane Marie Vachon, Equality Committee Member, Canadian Bar Association, British Columbia

This article is provided courtesy of the CBABC Equality Committee, which is committed to ensuring that CBABC members are informed about areas of the law and practice which have an impact on equality and diversity issues. The notion that a person's social condition should not be a basis for discrimination is a relatively recent addition to equality discussions. This article examines a recent judicial consideration of an aspect of "social condition.". If you have questions about this or any other equality and diversity topic, the CBABC Equality Committee would be pleased to hear from you.

This article was published in the December 2000 issue of BarTalk. © 2000 The Canadian Bar Association. All rights reserved.