Does the right to housing belong in Canada's Charter of Rights and Freedoms?

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This week, the Ontario Court of Appeal is hearing an appeal of the 2013 court decision in Tanudjaja et. al. v. Attorney General (Canada) et al. dismissing an application -- of four individuals who identified as homeless, together with the Centre for Equality Rights in Accommodation (the Applicants) -- concerning the right to housing. The application in Tanudjaja asked the Ontario Superior Court of Justice to, among other things, make a declaration that the Government of Canada's and the Government of Ontario's failure to implement a national and provincial housing strategy violates the federal and provincial government's obligations under sections 7 and 15(1) of the Charter of Rights and Freedoms (the Charter). By seeking this declaration, the application put the issue of whether social and economic rights are embodied in the Charter squarely in front of the court. 

In response, the Attorney General of Canada and the Attorney General of Ontario successfully brought a motion to dismiss the application on the basis that it raised no reasonable cause of action. In granting the motion to dismiss, Justice Lederer of the Superior Court of Justice rejected the proposition that the Charter captures social and economic rights, effectively dismissing a dynamic, unsettled and ongoing debate concerning the status of social and economic rights in Canada.

Positive and negative rights

Social and economic rights are often described as positive rights. As fittingly described by former Supreme Court of Canada Justice Louise Arbour in Gosseline v. Quebec (Attorney General), positive rights differ from negative rights in that "they are not merely rights of non‑interference but also what might be described as rights of "performance"... they may be violable by mere inaction or failure by the state to actively provide the conditions necessary for their fulfilment." In other words, positive rights may impose obligations on the government to take certain action.

Charter violations have often been found in the negative rights context, where the government has carried out specific actions that have infringed on the Charter rights of an individual.  However, as pointed out by the applicants in Tanudjaja, Canadian courts have not conclusively settled whether there may be positive performance obligation on governments to ensure the fulfilment of Charter rights.


Charter rights and affordable housing

Section 7 of the Charter guarantees the right to right to life, liberty and security of the person. A person cannot be deprived of this right except in accordance with the principles of fundamental justice. Section 15(1) of the Charter guarantees the right to equality under the law and the right to the equal protection and equal benefit from the law.  

The Applicants' position is that government inaction, coupled with legislative changes that have led to homelessness and a shortage of adequate and affordable housing, has "created and sustained conditions which lead to, support and sustain homelessness and inadequate housing."

The Applicants contend that section 7 and section 15(1) Charter rights should be interpreted together with Canada's obligations under the International Covenant on Economic, Social and Cultural Rights, which includes the right to an adequate standard of living, including adequate housing, and to the continuous improvement of living conditions.

In response, both the province and the federal government took the position that Canadian courts have consistently held that there are no positive obligations in Canada to ensure that each individual enjoys the rights enshrined in sections 7 and 15(1) of the Charter. 

The Superior Court of Ontario decision

The court, undertaking a review of several decades of Charter challenges, found that while governments cannot take steps that would actively deprive individuals of their Charter rights, there was no positive obligation on governments to protect rights under section 7 of the Charter. 

With respect to section 15(1) equality rights, the court found that a breach would be found if the applicants were treated differently "in that they are denied a benefit provided to others or have a burden imposed on them that others do not." According to the court, government changes to legislation, policies and services leading to an increase in homelessness and inadequate housing would not result in a breach of section 15(1) of the Charter, because there is no positive obligation under the Charter which would require the state to take steps to actively protect constitutionally enshrined rights.  

Justice Lederer characterized the application as "misconceived" and concluded that it was plain and obvious that it could not succeed, particularly given the remedy being sought, which he described as a "a process initiated and supervised by the court, the implementation of which would cross institutional boundaries and enter into the area reserved for the Legislature."

The application was dismissed without a full hearing of the material facts and supporting evidentiary record.

The appeal

The Applicants appealed the decision of the Superior Court of Justice on a number of grounds including:

  • that the court made an error in dismissing the application given that the issues raised are novel and complex;
  • that it incorrectly applied sections 7 and 15(1) of the Charter in finding that there was no reasonable chance the application would succeed;
  • and that it improperly considered the appropriateness of the remedies requested without a full hearing of the application.

While arguably some of the remedies requested by the Applicants may push the boundaries of the appropriate role of the court versus that of the legislature, they raise important questions about whether governments attract positive obligations, pursuant to sections 7 and 15(1) of the Charter, to address homelessness and access to adequate and affordable housing. The issue of positive rights and their place in the Charter is worthy of serious consideration on the part of the court and the outcome of the Applicants' appeal will be an important indication of the justice system's willingness to engage in this important debate.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to [email protected]. Read past Pro Bono columns here.

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