This month, we are writing about using law for social change. Many people go to law school with vague, lofty dreams of working for social justice causes (or at least that’s how their applications read). Few lawyers actually devote their practice to advancing social justice causes.

I spoke with Darcie Bennett, campaign director for Pivot, a non-profit organization whose mandate is to use the law to address the root causes of poverty and social exclusion. Their work largely involves bringing court cases on behalf of some of the most marginalized people in Canada, including sex workers, people without homes, and people with drug addictions. I spoke with Bennett about the difficulties with using the law to effect social change. Not surprisingly, there are many challenges to litigating social change.

There are many problems with our current legal structures. Cases take a long time to work their way through the court system. Lawyers are expensive. The entire process is usually quite stressful. Those problems increase exponentially for impoverished and marginalized people.

Many court battles in the name of social justice are against the government. The problem, says Bennet, is that the government has inexhaustible resources, especially in comparison to non-profit organizations like Pivot or people from marginalized communities. Social justice groups are often “outgunned”.

After trials and appeals and various court applications, it could take five years before a case is resolved. That’s a long time for anyone, especially members of marginalized populations who have more short-term, immediate needs like finding shelter and food.

Unfortunately, the people who have the least amount of political will and need social justice legal campaigns the most are arguably the most difficult to organize and advocate for. Bennet says that it is not uncommon for Pivot clients to not have a telephone number or a consistent address. Some folk might have mental health issues, which adds further layers of complications. What happens when a court date adjourns and Pivot needs to contact their clients?

Another challenge that Pivot faces is humanizing their clients for the courtroom. Most lawyers, let alone judges, have never been homeless or faced the kind of social exclusion experienced by Canada’s most marginalized populations. But poverty and social exclusion are lived experiences. They are not something that you can truly understand by reading a book or listening to a speech. 

One of the larger problems with using the law to advance social justice is that Canadian courts have been reluctant to recognize “positive rights”, in other words, that the Canadian government has obligations to do something to redress social ills and economic disparity. Courts are unwilling to recognize rights that marginalized people need the most.

For example, in Gosselin v. Quebec, Louise Gosselin alleged that the Quebec government violated her equality rights and her right to life, liberty, and security of the person as guaranteed by the Charter of Rights and Freedoms by cutting social assistance payments for people under 30 to $130 per month (a third of what people over 30 received). People under 30 could receive the remaining social assistance payment if they participated in employability programs, which had limited availability.

After paying rent for a room at a boarding house, Gosselin did not have money for food or other expenses. She was without a home for periods and resorted to the sex trade for food money.

The Supreme Court of Canada rejected Gosselin’s argument that Quebec’s social assistance program did not match people’s actual needs, but instead affirmed their potential. Gosselin had simply fallen through the cracks.

Gosselin’s case represents a general unwillingness on behalf of the court to force the government to spend money or widen social programs, even when it lowers social assistance below a subsistence level for some of Canada’s most vulnerable people.