Welfare Fraud: The Constitution of Social ... - York University

and jail in 42 percent of those cases. Both Gutierrez and the Canadian Research
Institute for Law and the Family (C.R.I.L.F.), in their background reports for the S.A.R.C.,
observed that the definition of 'spouse' introduced in 1987 (tracking the Family Law Act)
resulted in dramatic reductions to these very high rates. 40 The creation of a presumption
of spousal status in 1995 signaled a renewed state interest in surveilling women's
relationships with men.
3 Welfare Fraud
'Welfare fraud' occupied a central position in the social assistance reforms of the mid-
1990s. In political discourse and in the public imagination, abuse of the social assistance
system was understood to be widespread. The government pointed to "strong public
concern that the problem of welfare fraud was not being adequately addressed" 41 in
introducing a host of new measures to prevent, detect and punish welfare fraud. Yet this
claim might well position the cart before the horse, since the political discourse of parties
of all stripes was unified in its portrayal of welfare fraud as a problem of grave concern
and that more, and tougher, measures were needed to address it; a discourse which no
doubt helped to shape the predominant public view.
3.a Defining Fraud
Problematically, an enduring feature of discussions about welfare fraud is the lack of
definitional clarity and precision as to just what one means by the term 'welfare fraud'. 42
Some commentators include, for example, not only instances of what might properly be
characterized as 'fraud' as defined by the Criminal Code, but all instances of rule
violations, irrespective of the presence of mens rea. Others go further still to include all
over-payments, including those arising from bureaucratic error. Some seek to
differentiate 'fraud' and 'abuse' /'misuse'; including in the former situations where mens
rea exists, and in the latter, situations where actions of the recipient may not "go the full
40 Anne Marie Gutierrez, The Interaction of Criminal Law and the Income Maintenance System in
Ontario, research report for the Social Assistance Review Committee, May 1987 at pp. 17 and
28; the Canadian Research Institute for Law and the Family (Jean E. Wallace, M.L. McCall &
Joseph H. Hornick), "A Literature Review of Welfare Fraud: Nature, Extent and Control", report
for the Social Assistance Review Committee, July 1987 at p.17.
41 Moretta, supra note 8 at para. 27.
42 The S.A.R.C. observed that many lump together administrative error, overpayments and
mistakes together in the category 'fraud'; supra note 9.
26