Individual Canadians generously contribute to food banks. What about the state’s obligation? Do Canadian governments (federal, provincial, municipal) have any legal obligations to address food insecurity?
It may come as a surprise, but in Canada we have significant numbers of people who suffer from food insecurity. According to Health Canada, in 2007 to 2008, 7.7% (961,000) of Canadian households were food insecure; this represents 1.92 million adults and children aged 12 to 17. Health Canada’s definition of food insecurity is households who are “uncertain of having, or unable to acquire, enough food to meet the needs of all their members because they ha[ve] insufficient money for food” (Health Canada, Household Food Insecurity in Canada in 2007-2008: Key Statistics and Graphics). It is important to note that these statistics do not include homeless individuals. According to the World Food Summit, 1996, “Food security exists when all people, at all times, have physical and economic access to sufficient, safe and nutritious food that meets their dietary needs and food preferences for a healthy and active life.” The World Health Organization notes that:
Food security is built on three pillars:
Food availability: sufficient quantities of food available on a consistent basis
Food access: having sufficient resources to obtain appropriate foods for a nutritious diet
Food use: appropriate use based on knowledge of basic nutrition and care, as well as adequate water and sanitation.
Why is food security an important issue for Canadians? There are physical and mental health implications of food insecurity; these are very significant for children. In addition to nutritional concerns, child and youth hunger can be associated with poor general health, chronic conditions and asthma (see Sharon Kirkpatrick, Lynn McIntyre, and Melissa Potestio “Child Hunger and Long-term Adverse Consequences for Health”(2010) Arch. Petrdiatr. Adolesc. Med. 164(8) pp 754-762).
Another effect of food insecurity is the increased use of food banks. In HungerCount 2011, the Alberta Food Bank Network Association reported that food bank use was 75% higher in March 2011 than in 2008. In addition, 44% of those food banks assisted were children and youth, and one third of the households helped had income from current or recent employment (HungerCount 2011 – Alberta Provincial Report)
Food Banks Canada has determined that either short or long-term low income is at the root for the continued need for food banks across Canada (HungerCount 2011, page 3). Food banks across Canada have become part of our social fabric. They are supported by charitable and food donations, and individuals must approach them for assistance. Food banks often have trouble keeping up with the demand for their services. Individual Canadians generously contribute to food banks. What about the state’s obligation? Do Canadian governments (federal, provincial, municipal) have any legal obligations to address food insecurity? While there may be moral and political obligations to provide for food security, I would like to focus on whether there are any remedies for food insecurity available under domestic or international law.
The right to food security may be seen as part of the body of economic, social and cultural rights as covered by the United Nations and other international legal instruments. The International Covenant on Economic, Social and Cultural Rights (acceded to by Canada in 1976) (“CESCR”) provides that states are obligated to protect economic and social rights, including the right to be free from hunger and to an adequate standard of living, including food (see Article 11). The Convention on the Rights of the Child (ratified in 1992) (“CRC”) provides that the state must ensure that children are provided with adequate nutritious food (Art. 24) and an adequate standard of living (Art. 27). In addition, the United Nations Committee on Economic Social and Cultural Rights released Comment 12 in 1999, to interpret the right to adequate food as set out in Article 11 of the CESCR.
According to Lorenzo Cotula and Margaret Vidar, writing for the Food and Agricultural Organization of the United Nations (The Right to Adequate Food in Emergencies, 2002 at page 25):
Under international law, States have both “progressive” and immediate obligations to realize the right to adequate food. State obligations may be classified in three categories: the obligation to respect, the obligation to protect and the obligation to fulfil. In turn, the obligation to fulfil includes an obligation to facilitate and an obligation to provide. This classification has been endorsed by the CESCR in its General Comment 12, as well as by a great number of scholars.
The obligation to respect means that governments must not violate the right to food; for example by evicting people from their farms. The obligation to protect means that government must protect citizens against violations by third parties; for example, by passing food safety regulations. The obligation to fulfil means that governments should facilitate the right to food by stimulating employment or enabling an environment where people can feed themselves, and as a last resort, act as provider where people cannot feed themselves because of reasons beyond their control.
Currently, the ability of individual Canadians (or civil society) to legally enforce these international obligations in the international sphere is limited. Once the federal government has ratified an international treaty, the government is obligated to comply with the provisions thereunder. However, failure to comply usually results in placing Canada in violation of its international obligations; a perhaps embarrassing political situation that may be without legal remedy in courts. In addition, ratification of international human rights treaties often brings with it the obligation for states to periodically report on their progress under the treaties. Canada does have reporting obligations under several human rights treaties, including the CRC and the CESCR. The United Nations will respond with recommendations for changes that, once again, are not legally binding on Canada, but perhaps politically embarrassing. The United Nations Human Rights Council has instituted a relatively new Universal Periodic Report system and Canada was among the first states to report and be scrutinized by its peers (other states) in 2009. Again, there were a number of comments and recommendations with respect to poverty and standard of living in Canada, particularly of new Canadians and Aboriginal peoples. However, there are no legal obligations on the part of the Government of Canada to abide by the recommendations, nor legal consequences for failure to fulfil them.
Some of the international treaties have Optional Protocols attached, which, in certain circumstances, (e.g., after all domestic remedies have been exhausted) permit individual Canadians to complain directly to the United Nations. Unfortunately, the most directly applicable Optional Protocol to the Covenant on Economic, Social and Cultural Rights has not been signed by Canada. Canadians do have the ability to complain to the United Nations under the Optional Protocol to the Convention on Civil and Political Rights, but will need to argue that food insecurity fits under an Article of that Convention in order to complain. And, once again, even if we can complain to and be heard by the United Nations, the resulting communications from the United Nations are not legally enforceable in Canada.
International human rights treaties have two roles in Canada’s domestic legal system. First, they may be implemented into Canadian domestic legislation. This means that Canadians would be able to obtain a legal remedy in a domestic court if such a right had been implemented into our legislation. Second, courts interpreting our Canadian Charter of Rights and Freedoms (“Charter”) will often turn to international human rights law for assistance. This often involves looking at either international treaties that Canada has ratified, or the body of customary international law (law that has arisen by custom over time rather than being written into a treaty).
Implementation of the right to food or the right to an adequate standard of living into Canada’s domestic law has been sketchy at best. The right to food is not explicitly written into Canadian statutes. We do have some food safety, agriculture, health, and welfare laws that may be seen to support the right. For example, Quebec has An Act to Combat Poverty and Social Exclusion, RSQ 2002, c l-7; Ontario passed the Poverty Reduction Act, SO 2009, c 10; Manitoba passed the Poverty Reduction Strategy Act, CCSM, 2011 c P-94.7; Nova Scotia has the Poverty Reduction Working Group Act SNS 2007, c 31. This legislation provides for the implementation of strategies to reduce poverty and promote social inclusion.
As for using international laws to assist in interpretation of the Charter, the Charter does not directly contain many social and economic rights; food banks were not prevalent when the Charter was drafted. While the Canadian government has stated internationally that the Charter as interpreted by the Supreme Court of Canada does protect internationally recognized economic, social and cultural rights (Graham Riches, “The Human Right to Adequate Food: Seeking Domestic Compliance with Canada’s International Obligations” Canadian Social Welfare Policy Conference, 2005 University of New Brunswick) Charter case law to date has not been as helpful as it could be. Charter sections 15(1) (equality provision) and 7 (right to life, liberty and security of the person) are the most likely sections to be used to argue for a right to food (or other economic, social and cultural rights that involve dignity, security and equality). The Supreme Court of Canada has stated Charter rights must be interpreted consistently with Canada’s international human rights obligations, including economic and social rights (see for example Baker v Canada (Minister of Citizenship and Immigration),  2 SCR 817). However, the United Nations Committee on Economic, Social and Cultural Rights has stated its concern that governments in Canada frequently argue in court that social and economic rights claims under the Charter are merely ‘policy objectives’ and should not be subject to judicial remedies (Bruce Porter, “Judging Poverty: Using International Human Rights Law to Refine the Scope of Charter Rights” (2000) 15 Journal of Law and Society Policy 117 at 139-40). Indeed, assertion of social and economic rights arguments have met with divided success. For example, in the 2002 Supreme Court of Canada case of Gosselin v Quebec (Attorney General),  SCR 429, Gosselin argued that Quebec’s social assistance scheme, which provided differential welfare benefits to those under age 30, violated Charter sections 7 and 15(1). A majority of the Supreme Court of Canada held that Gosselin’s Charter rights were not violated.
As for other legislation, Canadian and provincial human rights codes protect from discrimination on the basis of source of income (Nunavut, B.C., Alberta, Manitoba, New Brunswick, Nova Scotia, P.E.I.) and/or social condition (Quebec, New Brunswick and Northwest Territories) but none of them directly provides for the right to food or an adequate standard of living.
It seems ironic that in order to exercise our well-protected civil and political rights, Canadians need to have food security and other economic, social and cultural rights protected. However, these protections under Canada’s current legal regime are inadequate. Which is more surprising: that in a rich country like Canada there are so many people who face food insecurity, or that there are so few direct legal provisions for the right to food?