What is the federal role in the elimination of poverty?

In June 2009, the Government of Canada rejected a recommendation from the UN Human Rights Council that Ottawa establish a poverty elimination strategy. Why? The Government of Canada argued that addressing poverty was a provincial responsibility. In November 2009, however, a unanimous resolution calling for “an immediate plan to address poverty for all” was passed in the House of Commons. These seemingly contradictory statements only further the long and contentious history of parliaments attempting to address – or avoid – the issue of poverty in Canadian society.

Much of the current debate centers on the issue of jurisdictional responsibility. Many advocates for the elimination of poverty argue that any sustainable plan to address poverty on a national level must come from the federal government. However, the federal government argues that programs to address poverty are the responsibility of the provinces as laid out The Constitution Act, 1867.

The Constitution Act, 1867 sets out the exclusive legislative authority of the Federal and Provincial legislatures “extending to all Matters coming within the Classes of Subjects” enumerated within Part VI Distribution of Legislative Powers. This division of powers is the basis of Canadian federalism and outlines what level of government will have jurisdictional authority over certain services and programs.

However, problems arise when a potential program or service does not fall neatly into one jurisdiction or the other. This is the current situation regarding a national poverty elimination plan. Like many issues in our society, poverty cannot be easily compartmentalized. The programs currently in place to assist those living in poverty fall under both federal and provincial jurisdiction.

For example, Employment Insurance is regulated by the federal government (s. 91, (2A)), while Education is under provincial jurisdiction (s. 93) and issues surrounding housing and homelessness are, in different respects, the responsibility of both the federal and provincial legislatures.

While a poverty elimination plan which places poverty and all its elements under the jurisdiction of the federal government is almost sure to meet with some disquiet from the provincial legislatures, federal infringement on areas of provincial jurisdiction for the sake of creating a more unified national standard is not without precedent.

In his article “Recasting Social Canada: A Reconsideration of Federal Jurisdiction Over Social Policy”, Sujit Choudhry discusses how, over the years, federal governments have established conditional grant programs dealing with highways, education, health and other social services – all matters falling within provincial legislative jurisdiction. Indeed, writes Choudhry, the purpose of the Canada Health Act was to influence provincial policy with respect to the provision of public health insurance. The extent to which it has achieved this purpose, Choudhry writes, can be seen by the extent to which decisions previously left to regional political communities (assigned under the Constitution) have been effectively transferred to the national political community.

Poverty elimination is a complex issue that encompasses a broad array of social services. Just prior to the parliamentary summer break, NDP MP Tony Martin tabled private member Bill C-545, An Act to Eliminate Poverty in Canada. Consideration of the potential enactment of such a bill requires an examination of the very constitutional foundations of the Canadian welfare state, which writes Choudhry, were the decisions reached by the Supreme Court of Canada and the Privy Council in 1936 and 1937, in the UI Reference. The issue in that case, Choudhry writes, was the constitutionality of the Employment and Social Insurance Act, 1935, one of the six statutes enacted by Parliament in 1935 as part of R.B. Bennett's New Deal. The majority held that while the federal government was precluded from regulating social services it was not barred from enacting a non-contributory, non-mandatory social insurance scheme.

Based on the holding in the UI Reference and recent jurisprudence it is fair to say that there is not always a clear line between the responsibilities of different levels of government within Canada. As a result, opponents of a federal poverty elimination act should be wary of simply spouting rhetoric concerning jurisdictional issues in hopes of killing Bill C-545. While raising issues of jurisdiction could be used as impediments to the implementation of a poverty elimination Act, these arguments would by no means need to be a deathblow.

The point is, Canada needs coordinated action on reducing poverty, and while six provinces already have established plans, the federal government needs to assume its own rightful, and more engaged role, in order for real progress to be achieved.

Christie Conway is a former probono law student intern at CPJ (2009-2010), who is continuing her studies at the University of Calgary.