Bringing the Right Home? Canada’s Domestic Recognition of the International Human Right to Adequate Housing
By Lauren Pinder
Tonight approximately 30,000 Canadians will spend the night homeless. 1 in 5 low-income Canadians spend more than 50% of their income on accommodation. Paradoxically, Canada has signed and ratified several international human rights treaties that identify the right to adequate housing as a fundamental human right. There is an inherent disconnect between recognition of the right to adequate housing and the persistence of homelessness and unaffordable housing in Canada.
In 2007, the UN Special Rapporteur of Adequate Housing visited Canada and published key findings and recommendations for the country. The report identified that a key obstacle in upholding the right in Canada is that the right is not recognized in any Canadian legislation. Eight years have passed since this evaluation took place. Has Canada made any steps towards recognition?
International Recognition of the Right
Article 11 of the International Covenant on Economic, Social, and Cultural Rights outlines ‘the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions’.
Article 25.1 of the Universal Declaration of Human Rights states ‘everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing…’
National Human Rights Act
Canada’s Human Rights Act does not outline a right to adequate housing. In regards to housing, the Human Rights Act states that the purchase of tenancy of accommodation cannot be denied based on prohibited discriminatory grounds. These include race, gender, source of income, etc. This is the only mention of accommodation of housing in the Act.
Provincial Human Rights Legislation
The Special Rapporteur’s Report identified that while no provinces outline a right to adequate housing in their human rights legislation, two provinces in some way addressed social and economic rights that are associated with housing.
Article 45 of Quebec’s Charter of Human Rights, short of directly including a right to adequate housing, guarantees for any person in need “the right for himself and his family to measures of financial assistance and to social measures provided to him by law, susceptible of ensuring such a person an acceptable standard of living.”
In Newfoundland and Labrador, the Human Rights Code was amended in 2006 to include ‘source of income’ – whether social assistance, employment insurance, wages, etc. – as a prohibited ground of discrimination for seeking occupancy.
Since the report was released, most provinces have amended their human rights legislation to include source of income and/or social class as a prohibited ground of discrimination along the lines of the national Human Rights Act and Newfoundland and Labrador. To this date, no province has taken the bigger step of including a specific right to adequate housing.
The Charter of Rights and Freedoms
In the report, the UN Special Rapporteur stated that since the 1982 induction of the Charter of Rights and Freedoms, the right to housing had seen advances. The Charter does not directly recognize a right to housing, or address housing in general. The report speculates that the section 7 right to life, liberty and security of the person or the section 15 equality right would provide an indirect route to addressing violations of the right to adequate housing.
Last year, this was put to the test with Tanudjaja v Canada Attorney General. Four homeless individuals challenged the constitutionality of the Canadian and Ontarian governments’ failure to implement strategies to address homelessness and provide affordable housing options. A successful challenge would have effectively created a positive duty for the government to create programs to provide affordable, adequate housing.
The case went to the Ontario Court of Appeal where it was dismissed in a 2-1 majority decision on two key grounds. First, the claimants did not identify legislation that violated their rights which is standard in a Charter Challenge. They instead argued that the failure to act was in violation of their right to housing. The decision states that in framing their argument this way, the claimants had made the issue one of politics and policy-making instead of a legal issue within the mandate of the judicial system. This framework could make any exploration of and determination regarding the issue resemble a public inquiry instead of a judicial application of law.
Second, the majority found that there is no law that confers a freestanding right to housing or a positive duty to establish programs that provide affordable housing. The court deferred to the legislature the ability to recognize the right to adequate housing.
In June of this year, the case was denied leave to the Supreme Court of Canada. This suggests that Canadian courts will likely only uphold the right to adequate housing if this right is directly recognized in legislation.
Building a Stronger Foundation
It does not appear that Canada has taken steps to recognizing the right to adequate housing in legislation since the Special Rapporteur’s report. However there have been positive advancements that could indicate a shift in approach. Last month a group of homeless people in British Columbia won a case at the B.C. Supreme Court that allowed them to set up tents and shelters in which to sleep in overnight. Within days of that judgement, Ontario announced that – following the recommendation from a panel of housing experts appointed in the spring – it has set a 10 year deadline to end homelessness in the province. This winter will mark the first point-in-time survey of the homeless population across Canada with the hopes of capturing the state of homelessness in Canada on any given day. The newly elected federal government ran on a platform that included a national housing strategy, which Canada does not currently have. Hopefully, these factors indicate that Canada is building a solid foundation for a future recognition of the right to adequate housing.