A Human Rights Approach to Housing
June 14, 2018 Housing
The Clinic recently wrote a brief in response to a consultation by the Federal government on the whole idea of a Human Rights approach to Housing. This consultation is part of the development of a National Housing Strategy. Here is an edited version of our response.
The Clinic has long called for a national housing strategy so we were pleased when one was announced in November 2017.
Several years ago, in 2012, Bill C-400 was introduced. We reached out to Members of Parliament to support this long awaited national housing strategy that would have “ensure(d) secure, adequate, accessible and affordable housing for Canadians.”
Obligations under International Law
That bill made specific references to Canada’s obligations under international human rights law, as well as the interdependence and indivisibility of human rights. It included provisions to ensure that the cost of housing would not compromise the enjoyment of other rights (i.e. housing would not be so expensive that one could not afford adequate food), that it would be accessible to individuals living with disabilities, and that it would offer priority to groups particularly vulnerable to housing issues.
Canada is a signatory to the United Nations backed International Covenant on Economic, Social, and Cultural Rights. Article 11 of the Covenant recognizes the right of everyone to an adequate standard of living, which is stated as including “including adequate food, clothing and housing, and to the continuous improvement of living conditions.” Canada has lent its signature to the Covenant, which recognizes that housing is a fundamental human right. It is time that Canada implements this into positive change, such as recognizing that the right to an adequate standard of living should be a right protected under the Canadian Charter of Rights and Freedoms.
Recent Court Case
In a recent Ontario Court of Appeal decision Tanudjaja v Canada, the issue of the right to housing as a Charter protected right was raised. The case was brought forward by a group of activists and those who had experienced issues in obtaining safe and affordable housing. They essentially argued that the right to safe and affordable housing was protected under section 7 (the right to life, liberty, and security of the person), and section 15 (the right to be free from discrimination) of the Charter.
The Ontario Court of Justice found that “there is no positive obligation raised by the Charter that requires Canada and Ontario to provide for affordable, adequate, accessible housing.” The Court of Appeal did not consider this point because it stated there was no reasonable cause of action, and the Supreme Court of Canada refused to grant leave. Tanudjaja is indicative of the troubling attitude policy makers in Canada have towards the issue of homelessness; the appellants introduced hundreds of pages of affidavit evidence to support their argument that housing is a fundamental human right which was never heard by Canada’s highest court.
The Canadian Charter of Rights and Freedoms
Under section 15 of the Charter, every Canadian is forbidden to be treated differently on the basis of factors such as race, ethnicity, religion, sex, or mental and physical disability. There also exist analogous grounds which a claimant can prove to argue discrimination on a ground that is not formally listed under section 15. It is time that the Canadian government recognize homelessness as an analogous ground to discrimination and ensure that the rights of the homeless are protected.
Bill C-400 was defeated in 2013. The Clinic, though, has continued to support the need for Canada to ensure housing as a right as it is defined under international law.
As far as the current consultation, we are concerned that the focus on what is called a “human rights approach” is not a strong one that would actually meet international obligations.
While Canada has a system in place to file human rights complaints, there is significant room for improvement. Under the Canadian Human Rights Commission, you can file a complaint only if you work or receive services from a business that is controlled by the federal government. The Canadian Human Rights Commission uses the definitions of discrimination as set out in the Canadian Human Rights Act to determine if an individual has experienced discrimination. Under the Act, discrimination can be based upon your race, national or ethnic origin, religion, sex, or disability to list a few. The Act does not name homelessness as grounds for discrimination, and thus it appears that an individual facing issues stemming from lack of adequate shelter is unable use the Commission as recourse. On the Commission’s website, it clearly states that 45% of Canada’s homeless have a physical or mental disability . The Canadian government must recognize the discrimination that can result from an individual not having a fixed place of residence and amend the Canadian Human Rights Act to reflect this.
A case for discrimination can be heard before the Canadian Human Rights Tribunal, but only if it is referred by the Canadian Human Rights Commission. Under section 5 of the Canadian Human Rights Act:
It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public:
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
We believe this does not go far enough in protecting the rights of people who are experiencing homelessness to ensure that they do not face discrimination when they attempt to access safe and adequate shelter. If a case is not referred to the Canadian Human Rights Tribunal, it will not be heard by members of the Tribunal. There must be another avenue where complaints related specifically to housing issues can be heard, such as the Civil Resolution Tribunal which is a recently established online forum that allows British Columbia citizens to resolve condominium disputes and small claims issues online. There is no reason why a similar tribunal relating to discrimination stemming from homelessness should not be established and nurtured as well.
The Canadian government must recognize that the definition of homelessness is not singular. Jesse Thistle an Indigenous scholar from Saskatchewan has argued that Indigenous homelessness is not merely about a lack of shelter. In his paper Definition of Indigenous Homelessness in Canada, Thistle argues that Indigenous homelessness is a result of being without “All My Relations.” Thistle explores how this term encompasses aspects of life such as relationships with family, plants, spirits, and elements, and how colonization has destroyed these connections. It is important for the Canadian government to understand how the harmful legacy of colonization has contributed to the rise of Indigenous homelessness, and how the government must resist a one size fits all solution to this issue. It is crucial to consult Indigenous leaders and academics to understand how best to change our legislation to address the issue of homeless Indigenous and Indigenous youth.
It is important that the Canadian government recognize that housing is a human right as protected under the Charter and listed as a ground for discrimination under the Canadian Human Rights Act. It is time for Canada’s leaders to enact changes to our legislation that reflect housing to be a fundamental human right, paving the way for future reform.
Read more about the National Houising Strategy at https://www.placetocallhome.ca/
Tanudjaja v Canada (Attorney General)  ONCA 852 at para 71
Economic, Social, and Cultural Rights, Canadian Human Rights Commission, http://www.chrc-ccdp.gc.ca/eng/content/youth-and-education.
Canadian Human Rights Act, RSC 1985, c. H-6 at s. 5.
Civil Resolution Tribunal, https://civilresolutionbc.ca/how-the-crt-works/getting-started/small-claims-solution-explorer/.
Jesse Thistle, Definition of Indigenous Homelessness in Canada (Canadian Observatory on Homelessness Press: 2017) http://www.homelesshub.ca/sites/default/files/COHIndigenousHomelessnessDefinition.pdf.