By Laura Track, BCCLA lawyer
“Canada has long been seen as a land of plenty, yet today one in 10 families with a child under six is unable to meet their daily food needs, and people are simply too poor to eat decently.” – UN Special Rapporteur on the right to food, 2013
When the UN Special Rapporteur on the right to food visited Canada a few years ago, he expressed shock at what he saw: nearly one million children and adults relying on food banks to supplement their inadequate diets each month, and extreme inequalities between Indigenous and non-Indigenous communities. His primary recommendation to the federal government was to adopt a comprehensive, rights-based national food strategy and a framework law on the right to food.
The federal government’s response was to launch a personal and highly undiplomatic attack. Leading members of the government characterized the Special Rapporteur as a meddling academic who was wasting UN resources investigating Canada when he could have been somewhere with real hunger and food security issues. This approach, described by the Special Rapporteur as a “new Canadian self-righteousness”, suggests a government view of human rights violations as something that only happen in other countries, and a disregard for the lived experience of hundreds of thousands of people in Canada experiencing food insecurity, poverty and deprivation.
The concept of a “right to food”, so clearly protected in international human rights agreements that Canada has signed and agreed to uphold, is something of a slippery concept. Can we really say that we have a right to food in Canada, given the statistics on hunger and food insecurity cited above? What does it mean to have a “right” to something, when that right so often goes unfulfilled?
To be useful and effective in improving people’s lives, the right to food, like all rights, must be legally enforceable. It must be capable of adjudication by the courts, and its violation must result in accountability and action. A meaningful right must create a corresponding legal obligation on someone or some institution, such as government, to ensure that the right is respected, protected and fulfilled. Therefore, a right to food must place a legal obligation on government to address hunger and food insecurity through its spending and policy choices. And if the obligation is not met, people whose right to food has been violated must be able to take their claim to court, and a judge must be able to order remedies for the violation.
The BC Civil Liberties Association believes that Canada’s Charter of Rights and Freedoms is a vehicle through which the right to food could be enforced and made meaningful in people’s lives. To make our case, we have travelled around the province, hearing stories about people’s experiences of food insecurity and the challenges they face in putting adequate, nutritious food on their families’ tables. We’ve heard about low wages and grossly inadequate social assistance rates that prevent people from purchasing the food they need; expensive produce and extensive distances that create barriers to food security for people in remote communities; and the physical and psychological health impacts that hunger and poverty have on parents and their children.
We’ve also researched the ways in which low income individuals and communities have used the law to advance their rights in court. We’ve explored the successes and failures that people experiencing homelessness, extreme poverty and other violations of what are called “economic and social rights” have had in the courts, and we’ve drawn lessons from these cases to inform our analysis of how Canadian law protects the right to food.
Historically, plaintiffs have faced immense challenges in using the Charter to advance “positive rights” claims – claims that require the government to take positive action to fulfill people’s basic needs. The right to housing, food, or an adequate standard of living are all considered “positive rights” because their fulfillment requires government action and spending. Judges are often hesitant to settle these kinds of cases, citing concerns about their proper role. While it’s true that it’s the government’s job to determine budget priorities and make spending choices, and it’s important that courts don’t start making decisions that properly belong to our democratically elected representatives, that doesn’t necessarily mean that courts shouldn’t find a Charter breach and order accountability when human rights like the right to food have been violated.
All rights cost money. Even traditionally “negative” rights, like the right to a vote or to have a fair trial, require government spending. You can’t have a fair trial without a functioning justice system, and courthouses, judges’ salaries, and support staff all cost money. Judges regularly require government spending in these contexts. For example, judges will stay criminal charges against people accused of crimes when overbooked courts and an insufficient number of judges mean it has taken too long for the accused to get their case heard, depriving them of their right to a fair trial. So while fulfilling the right to food would cost money, so does the fulfillment of all rights. Moreover, we know from research that fulfilling the right to food would actually save the government money over the long term, in health care and other social services costs, as well as by bringing in more tax dollars from higher earning, more productive, happier and healthier workers. CALL OUT
We believe this distinction between positive and negative rights should be rejected as a reason not to enforce a right to food. In particular, we think that for children, who are particularly vulnerable to the negative health effects of malnutrition and entirely reliant on others to provide for their food needs, there is a positive obligation on government, arising from children’s Charter protected rights, to ensure they have access to adequate, nutritious food. Moreover, when children’s right to food has gone unfulfilled, courts have the jurisdiction and authority under the Charter to declare the government’s actions unconstitutional, and to order remedies for the breach of children’s rights.
On Wednesday, June 24, we’ll be hosting an event at the Carnegie Community Centre theatre to talk about our right to food project. We’ll also hear from a panel of experts on food and poverty issues who are doing important work on these issues in our community.
Join us as we explore what it means to have a “right to food” in Canada, how Canadian law can be used to enforce the right to food, and what communities are doing in the absence of a rights-based national food strategy and a framework law on the right to food.