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Last month, the federal government released what it is calling the country’s first national housing strategy(NHS). Some highlights include establishing a National Housing Co‑Investment Fund, providing support to provinces and territories to build a community-based housing sector, developing a First Nations National Housing and Infrastructure Strategy, and creating a portable rent supplement to assist families who are waiting for social housing.
Given the dismal outlook in Canada for access to affordable housing, there are many reasons to look skeptically at the commitments in the NHS. But from a legal perspective, the government has actually made a very significant acknowledgment that housing rights are human rights, and through the NHS, has affirmed Canada’s commitment to the International Covenant on Economic, Social and Cultural Rights, a multilateral treaty adopted by the United Nations General Assembly in 1966. This acknowledgment opens up a very real path to push for recognition that positive rights under the Charter of Rights and Freedoms exist. Achieving this would be a dramatic change to the human rights landscape in Canada.
Positive and negative rights revisited
Social and economic rights are often described as positive rights, meaning that fully realizing them requires government action, not just a commitment by the government to not interfere with these rights. This positive obligation in terms of housing is clear from the wording of Article 11 of the International Covenant on Economic, Social and Cultural Rights, which states:
The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for [themselves] and [their] family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.
In Canada, violations of our Charter rights have historically been found in cases where the government has carried out specific actions that have infringed on the Charter rights of an individual. Courts in Canada have consistently shied away from finding a violation of our Charter rights where the government has failed to “take appropriate steps to ensure the realization of” a Charter-protected right.
Housing as a human right
Back in 2014, we wrote a column about the Tanudjaja et. al. v. Attorney General (Canada) et. al. case. This was an application by four individuals, who identified as homeless, requesting that the Ontario Superior Court of Justice make a declaration that the Government of Canada’s and the Government of Ontario’s failure to implement a national and provincial housing strategy violated federal and provincial government’s obligations under Sections 7 and 15(1) of the Charter. Section 7 guarantees the right to right to life, liberty and security of the person and Section 15(1) guarantees the right to equality under the law and the right to the equal protection and equal benefit from the law.
The applicants in Tanudjaja also argued that Section 7 and Section 15(1) Charter rights should be interpreted together with the International Covenant on Economic, Social and Cultural Rights.
The Tanudjaja application was dismissed by the Ontario Court of Appeal in a split decision. Two judges of the Court of Appeal found that there was no reasonable cause of action raised in the application. In particular, the majority decision written by Justice Pardu found that there was “no sufficient legal component to engage the decision‑making capacity of the courts,” meaning that the absence of any action or legislation related to housing in Canada left the court with nothing to scrutinize from a Charter perspective. Accordingly, the government’s failure to act to ensure that rights under the Charter were fully realized was not an issue that could be dealt with by Canadian courts.
The dissenting judge, Justice Feldman, found that it was premature to dismiss the application at a preliminary stage, stating, correctly, that the Supreme Court of Canada has left open the possibility that the Charter could impose positive obligations on a government.
Charter rights and the NHS
Three years after the Tanudjaja application was summarily dismissed by the courts, the government has created a national housing strategy based on the principle that housing rights are human rights in Canada. The NHS has also used a Gender‑Based Analysis Plus framework (which is further set out in the NHS) which is meant to incorporate an intersectional lens into the NHS, recognizing the barriers women in particular face in accessing adequate housing. It also analyzes how gender intersects with other identities to compound the effects of housing instability and homelessness, engaging equality rights protections under Section 15(1) of the Charter. The NHS’s explicit endorsement of social and economic rights and the underlying rights‑based framework is exciting because it creates an opening to make positive obligations (or rights) part of our Charter rights.
The rights‑based framework of the NHS could also be used as a tool to ensure that housing remains a national priority, even with changing governments and changing priorities. Where past Charter challenges based on positive obligations have been dismissed by Canadian courts, there is now an indication from the government itself, that it in fact recognizes that it has positive obligations. This is a significant step to ensuring a lasting commitment by the government to provide adequate housing in Canada.
