The Right to Housing in Canada

The National Housing Strategy Act, 2019 (NHSA) created my office, the Office of the Federal Housing Advocate at the Canadian Human Rights Commission. It also declared that housing was a human right (NHSA s.4). Canada has ratified the International Covenant on Economic, Social and Cultural Rights, which includes the right to adequate housing at Article 11. However, in the common law, it’s often said that there’s no right without a remedy, and Canadian courts have been reluctant to recognize a right to housing.

The right to housing has only been looked at by Canadian courts a few times. In City of Victoria v Adams (2008), the homeless community in Canada challenged a city bylaw that banned the construction of temporary shelters in public parks where the litigants lived as a violation of their s.7 rights (life, liberty, security of the person). The judge agreed that the ban unjustifiably violated s.7 and the decision was upheld by the British Columbia Court of Appeal. Notably, City of Victoria v Adams was decided prior to the enactment of the NHSA.

The right to adequate housing was litigated directly in Tanudjaja v Canada (Attorney General) (2014).  Individual applicants suffering from homelessness and inadequate housing brought Charter ss.7 and 15 (equality) claims against the Canadian government’s general approach to housing, which resulted in social conditions that violated their rights. This case was decided on a motion to dismiss, not the merits. The motion judge found “no positive Charter obligation which required Canada and Ontario to provide for ‘affordable, adequate, accessible housing’” or any breach of the principles of fundamental justice regarding the s.7 claim (ONCA, para 17). On the s.15 claim, the motion judge found that the applicants were not denied a benefit conferred to others or burdened compared to others by the actions of the government, and that homelessness or inadequate housing did not constitute an analogous ground of discrimination. The motion judge concluded that the claim for a right to adequate housing was not justiciable, a decision upheld by a majority of the Ontario Court of Appeal. The Supreme Court denied leave to appeal.

There is a general assertion that “positive claims against the state for the provision of certain needs are not justiciable because they would require courts to dictate to the state how it should allocate scarce resources, a role for which they are not institutionally competent” (Gosselin v Quebec (AG), para 330). While there is international consensus that the “positive” and “negative” rights dichotomy is false and not useful, Canadian courts still look at positive obligations as “non-justiciable.” That said, positive obligations have been found in other non-housing contexts, such as Canada v PHS Community Services (2011) for s.7 and Eldridge v BC (AG) (1997) for s.15.

According to the Supreme Court in R v Ewanchuk (1999), “the Charter is the primary vehicle through which international human rights achieve domestic effect. […] In particular s.15 (equality provisions) and s.7 (which guarantees the right to life, security and liberty of the person) embody the notion of respect of human dignity and integrity” (para 73). The concept of human dignity is particularly relevant to the right to adequate housing. One expert our office met with noted that Ontario courts have stated eviction is next worst thing that can happen to someone after incarceration. Human dignity is also referenced in the National Housing Strategy Act in s.4(b): “housing is essential to the inherent dignity and well-being of the person and to building sustainable and inclusive communities.”

Gosselin v Quebec (AG) (2002) is a leading case used to try to get the courts to recognize positive obligations in Charter rights. It concerned an inadequate level of social assistance benefits given to the applicant who had not enrolled in a workfare program. The majority of the Supreme Court ruled against the applicant with a restrictive interpretation of s.7, emphasizing a “deprivation” of the right to life, liberty, and security of the person. However, the majority also stated that “one day s.7 may be interpreted to include positive obligations” (para 82). Arbour J. wrote a significant dissent, arguing that s.7 “imposes a positive obligation on the state to offer basic protection for the life, liberty and security of its citizens,” and that “justiciability is [not] a threshold issue barring the consideration of the substantive claim in this case” (headnote). Bastarache J. in a separate dissent suggested that poverty could constitute an s.15 analogous ground of discrimination, stating “the fact that people on social assistance are in a precarious, vulnerable position adds weight to the argument that differentiation that affects them negatively may pose a greater threat to their human dignity” (para 238).

The COVID-19 pandemic has also impacted how housing is viewed, both by the public and by the law. The UN Special Rapporteur on the right to adequate housing stated that “housing is the front-line defence against COVID-19.” People were told to “stay home,” even though not everyone had housing where they could stay to protect themselves and others from COVID-19. In Quebec, a curfew between the hours of 8PM and 5AM was ordered as a public health measure. This disproportionately affected people experiencing homelessness, who had nowhere to go. A safeguard order brought to prevent the curfew and fines from applying the homeless population was granted, and the judge noted that serious questions were raised about whether the curfew infringed the ss.7 and 15 rights of people experiencing homelessness. However, there were also some positive developments in the right to housing, like eviction moratoriums, rental relief, hotels opened to people experiencing homelessness. While none of these solutions were perfect, it is important to capitalize on this progress while continuing to call attention to flaws in policies and new issues (policing encampments). While we strive for the judicial recognition of the right to housing, we should also think about what the right to housing looks like outside of the courts.

Building a home in government for the Federal Housing Advocate

Kazumi Moore By Kazumi Moore

This summer, I’m one of many interns working remotely due to the COVID-19 pandemic. But that’s not the only thing making my experience at the Canadian Human Rights Commission (CHRC) unique. This is the first year the Centre of Human Rights and Legal Pluralism has partnered with the Office of the Federal Housing Advocate (OFHA), for a simple reason: this is the first full year the Office of the Federal Housing Advocate has existed.

The National Housing Strategy Act (NHSA), enacted in 2019, created the OFHA. The OFHA is so new that a Federal Housing Advocate has not even been appointed yet. The NHSA enshrines housing as a human right and charges the Federal Housing Advocate to monitor the progressive realization of the right to housing and research systemic housing issues. My team’s work is focused on preparing the office for the Advocate so they can hit the ground running. For example, I have been writing a lot of briefs on different housing issues for the Advocate to read once they’re appointed.

I wrote one on Canadian jurisprudence around economic, social, and cultural rights. Economic, social, and cultural rights include rights like the right to housing and the right to healthcare – they impose positive obligations on governments. While there is international consensus that the “positive” and “negative” rights dichotomy is false and not useful, Canadian courts still look at positive obligations as “non-justiciable.” But a right to housing isn’t meaningful unless it can be enforced. This allowed me to apply what I learned taking Public International Law at McGill and sparked an interest in how to make positive rights enforceable in domestic Canadian law and jurisprudence.

It has been a summer of non-stop learning. This is my first time working for a large organization and for government, so even the work flows were a learning curve. I had some experience working from home, so I thought it would be a fairly independent process, but one of the things that surprised me the most was how many meetings we are constantly attending. My teammates generously extended me invites to any meetings I was interested in attending, whether or not it had to do with my work, and sitting on these meetings with all of these knowledgeable and accomplished people has allowed me to learn about so many facets of different housing issues. It definitely made up for missing out on in-person connections. It has been great experience for someone like me interested in a career in government.

Multiple actors will always be involved in fulfilling the right to housing because housing is cross-jurisdictional, not falling squarely within either provincial or federal jurisdiction. Building a new office in government clearly requires connections between federal government departments, and our office is also required to consult with civil society organizations, members of vulnerable groups, and people with lived experience of housing need and homelessness. Having a mandate grounded in international human rights law means that we also need to talk to experts in those areas. These relationships are crucial for the inherently collaborative implementation of the right to adequate housing.

Hopefully, the Advocate will be appointed soon – some team members had even speculated they could be appointed before my internship started. But this way, I was able to see everything that goes into building an office from scratch – an experience that not many people working for the federal government have. If everything goes according to plan, next year’s intern will enter a fully-staffed OFHA and jump into all the projects we teed up this summer. Legislatively, there are many things we can’t even do without the appointment of the Advocate and we have been working within those limitations. COVID-19 has only exacerbated the housing crisis in Canada and many people are looking to the OFHA for action. Housing touches everyone, and helping set the groundwork for the OFHA this summer is a tangible contribution that I’ll be able to look back on.

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