Right to Housing Charter Challenge in the Courts

The right to housing in Canada is under the microscope today as the Ontario Superior Court reviewed a landmark Charter Challenge that considers whether homeless persons have had their rights violated by the Ontario provincial government and federal government.

Originally launched in 2010 by the Centre for Equality Rights in Accommodation (CERA) and a number of homeless individuals, the ‘Right to Housing challenge’ argues that the governments of Canada and Ontario are in violation of the Charter of Rights and Freedoms for their failure to address, and their contribution to, the growing crisis of homelessness and inadequate housing. Almost 10,000 pages of expert witness evidence were submitted to support this case on National Housing Day in the fall of 2011.

Today was an important day in the case as the both the government of Ontario and the Canadian government was seeking to have the case quashed before it is heard by a judge.  The argument is that housing is a matter of policy and politics, not courts.  CERA, alongside Advocacy Centre for Tenants Ontario (ACTO) argues that under the Charters section 7 (life, liberty and security of the person) and section 15 (equality), both governments have failed to implement policies that protect the rights of homeless people.

Looking at Canada’s international human rights obligations, which are meant to be integrated into domestic policy and law, all human beings have a right to housing which is safe, affordable and accessible.  This is stated in the International Covenant on Economic, Social and Cultural Rights, and more explicitly outlined in General Comment 4 from the Committee on Economic, Social and Cultural Rights.  Numerous UN treaty monitoring bodies have recommended that Canada adopt a national housing strategy to ensure this right is fulfilled (most recently, at the Universal Periodic Review of Canada’s human rights record in Geneva) but the government continues to ignore this call.

ACTO noted in an email release that,

“This case is historic: The Centre for Equality Rights in Accommodation and the individual applicants – who have experienced poverty and homelessness, are asking for more than the simple right to shelter. They hope that the Court will declare that homelessness and inadequate housing violate the Charter of Rights and Freedoms and that the government must develop a national strategy to end homelessness.”

Following today’s presentation by government lawyers it is clear that there is a divide between the applicants who state that the government has a role to play in protecting the country’s most vulnerable people, and the government who seems ready to opt-out of any responsibility to the most disadvantaged in society.

CWP’s Executive Director, Leilani Farha, was in the courtroom and reported that government arguments essentially said that the Charter does not protect the right to life of homeless people.

Peter Rosenthal, a lawyer for the applicants in the case, argued that what Canada and Ontario have done to harm people without housing is unconstitutional.  He is referring to the fact that homeless people suffer greater mental stress, greater health issues and die sooner than the average person. (See the Homeless Hub website for a number of great sources).   Homelessness does affects a person’s right to life.  If the Charter of Rights and Freedoms does not protect the most disadvantaged, then who does it protect?  If provincial and federal governments believe they are not responsible for assisting homeless people, then who is there to help those who have fallen amongst us?  Is this not what a social safety net is for?

The government does not believe they need to assist homeless people. Today ON and Canadian government lawyers argued that they don’t need to actively do anything to end homelessness, as long as they don’t make it worse (which reminds me – should they mention recent austerity budgets, cuts to EI, changes to OAS/GIS, lower funding to the Homelessness Partnership Strategy?).  Sounds like a different tune from LAST WEEK when Premier Kathleen Wynne stated that she is ‘determined’ to see more affordable housing built, and this is in complete contrast to the fall when Wynne supported the development of a national housing strategy.

Is the Premier aware of what her lawyers are saying on her behalf?

Tomorrow the case continues, and while a decision isn’t expected for some time, Judge Lederer acknowledged the importance of the case to a packed court room.  It is clear that the outcome will affect the future application of human rights in Canada.

For more information on the case see the Social Rights CURA and ACTO websites.  Also see the Toronto Star article out today, “Landmark homeless Charter Challenge may never be heard if government wins bid to quash case”.