Ottawa takes a historic step forward
How has Canada strayed so far from the human rights it claims to protect? Walk any city street and you will see a heart-stopping number of people without homes — without the basic elements needed to live with dignity. We hear a lot about Canada’s housing crisis, but it’s actually something bigger. It is a human rights crisis.
As a nation, we have made international commitments to uphold housing as a fundamental human right. Some components of this right are legislated. Federal, provincial, and territorial laws guarantee equal treatment without discrimination, for example. Other laws lay out our rights as tenants and homeowners and protect us from unlawful eviction and unsafe housing. Courts have, in rare cases, invoked the Canadian Charter of Rights and Freedoms to strike down municipal bylaws that prevent homeless people from creating temporary shelters of plastic or cardboard in parks. But courts have not addressed the failure of governments to ensure access to more than a cardboard box.
In 2012, Jennifer Tanudjaja and four others challenged this failure. They brought a case before the Ontario Superior Court, alleging that federal and provincial governments had violated their Charter rights. They argued that homelessness dramatically shortens and irrevocably damages lives, and that it disproportionately harms such specific populations as Indigenous people and persons with disabilities. They wanted the government to develop and implement a strategy to address homelessness — and within a reasonable period of time. An extensive team of supporting organizations and experts compiled 10,000 pages of evidence, including thirteen expert affidavits, but it was never considered by the courts. Instead, Ontario’s Court of Appeal ruled, in a controversial 2-1 decision, that homelessness is too complex an issue to adjudicate and beyond the mandate of courts.
The case was dismissed in December 2014. But it was a catalyst for civil society to redouble its efforts.
In June 2019, five years after the Court of Appeal’s decision, Parliament adopted a new law that grants what the courts had denied Tanudjaja. The National Housing Strategy Act affirms, for the first time in Canadian law, that “the right to adequate housing is a fundamental human right . . . essential to the inherent dignity and well-being of the person and to building sustainable and inclusive communities.” While Ottawa has committed Canada to “the progressive realization of the right to adequate housing,” the legislation passed with little fanfare — surprising, as it represents a historic reclaiming of our international commitment to human rights.
It was a Canadian, John Humphrey, who led the drafting of the Universal Declaration of Human Rights seventy years ago. The declaration affirms civil, political, economic, social, and cultural rights as essential to the dignity and worth of every person. We all have these rights, regardless of the laws that exist or don’t exist where we live.
During the Cold War, particularly the 1950s and ’60s, human rights became politicized. Civil and political rights came to be associated with capitalist freedom from government interference, and economic and social rights were linked to socialism. The unified set of rights in the UDHR was divided into two covenants, the International Covenant on Civil and Political Rights, or ICCPR, and the International Covenant on Economic, Social and Cultural Rights, or ICESCR. Some countries, including the United States, opted to recognize only civil and political rights. Canada, however, signed both covenants in 1966, and they went into effect in 1976.
Throughout this period, the human rights movement in Canada played off the civil rights movement in the United States, but it took a more holistic approach rooted in the international system. Human rights commissions were established in all provinces, and key protections of social rights were developed. The Canada Assistance Plan Act, adopted in 1966, required provinces to help anyone in need meet certain basic requirements, including food, shelter, and clothing, as a condition of federal funding. Individual recipients could seek public-interest standing to challenge inadequate rates in court. Economic and social rights were thus embedded in the Canadian social contract — in policy and in law.
Then, in 1982, Canada adopted the Charter, which also drew from a comprehensive approach. Section 7, for example, guarantees the “right to life, liberty and security of the person,” using language from article 3 of the UDHR rather than U.S.-style phrasing. Section 15 guarantees “equality rights” that include the equal “benefit” of the law. This was a result of advocacy by women, people with disabilities, and others who worked to ensure that governments would address socio-economic deprivation and inequality, with measures like income assistance programs and maternity benefits. Such protections are in line with international obligations.
Early jurisprudence from the Supreme Court of Canada followed suit. In 1989, two separate cases, one addressing workers’ rights (the Slaight Communications case) and the other the economic property rights of corporations (the Irwin Toy case), led the court to comment on economic and social rights. In the first ruling, it affirmed that the Charter should be presumed to provide at least the same level of protection as the international human rights laws that Canada had ratified; in the second, it cautioned that “rights to social security, equal pay for equal work, adequate food, clothing and shelter” should not be excluded from section 7 at such an early stage of Charter interpretation. The Supreme Court clearly recognized the importance of a holistic rights framework as the foundation for the interpretation and application of the Charter.
Twenty years later, the court considered a challenge to social assistance rates: Louise Gosselin claimed that the rate for recipients under thirty left her destitute. She lived in an unheated apartment in Montreal and often had to scrounge for food. Surprisingly, Chief Justice Beverley McLachlin, writing for the majority, found that the “evidence of actual hardship [was] wanting” and left for future cases the question of whether governments are obliged to address poverty or homelessness when they threaten life or security of the person. In her dissenting opinion, Louise Arbour, supported by Claire L’Heureux-Dubé, found that section 7 of the Charter does indeed impose a positive obligation on governments to ensure access to basic necessities. Yet one of the most critical questions of Charter interpretation — the extent to which it protects life, security, and equality for those affected by poverty and homelessness — remains unanswered to this day.
The lack of effective judicial response to homelessness as a human rights violation echoed into the void that was federal housing policy. After the Canada Assistance Plan was repealed in 1995, the federal government abandoned its role in creating social housing and basically ignored housing for the next twenty years. Housing policy was to defer to the market. But the housing market was failing.
Leading up to the 2015 election, the sense of urgency had been growing across the country and across the income spectrum. Middle-income earners were feeling priced out of home ownership, particularly in Vancouver and Toronto. But the sharp end of this reality was the growing crisis of homelessness, felt most acutely in big cities but experienced in many communities. Increasing numbers of households were defined as being in “core housing need” — meaning that they would have to spend 30 percent or more of their before-tax income to pay the median rent of appropriate shelter. One in six households in Vancouver and Toronto were in core housing need. Further, purpose-built rental stock was in a state of disrepair. And by 2015, federal operating agreements with social housing providers and co-ops were winding down. A public policy response was urgently needed.
The Liberals campaigned on a range of policy commitments: a Housing First program for homeless people; investments in affordable housing, both new builds and renewals; support for rent subsidy programs; incentives for rental developments; review of available federal lands for affordable housing development; and other tools for improving overall affordability. The platform described a ten-year investment in social infrastructure, although not yet a national housing strategy per se.
Following the election, Justin Trudeau sent a mandate letter to Jean-Yves Duclos, the minister responsible for the Canada Mortgage and Housing Corporation. It outlined an overall series of deliverables, framed as developing “a strategy to re-establish the federal government’s role in supporting affordable housing.”
In addition to the mandate’s “what,” the letter outlined the “how.” It required the minister to collaborate and engage with political colleagues and the public service, and to engage in “constructive dialogue with Canadians, civil society, and stakeholders, including business, organized labour, the broader public sector, and the not-for-profit and charitable sectors.” The commitment was just vague enough — a window of opportunity had opened.
Civil society — including academics, industry organizations, foundations and non-profit groups, and others — quickly mobilized to build relationships and find ways to have its collective expertise incorporated in the emerging policy landscape. The National Housing Collaborative was formed in early 2016, comprising a wide range of organizations that had not previously worked together. Over the next year and a half, the collaborative consolidated a set of evidence-based policy ideas that the government’s new strategy would incorporate to varying degrees. At a political level, Duclos’s office was open to hearing from experts and to including their suggestions. And this involved a serious consideration of what recognition of housing as a human right would actually mean.
As early as 1993, the UN Committee on Economic, Social and Cultural Rights commented on the state of homelessness in Canada. In its 1998 review, the committee again expressed alarm that “such a wealthy country as Canada has allowed the problem of homelessness and inadequate housing to grow to such proportions that the mayors of Canada’s ten largest cities have now declared homelessness a national disaster.” In 2016, housing groups and human rights activists, including people with lived experience of homelessness, made submissions and engaged directly with the committee, which continued to admonish Canada for not acting on its recommendations. In March 2017, Leilani Farha, the UN special rapporteur on the right to housing and a Canadian human rights activist, submitted a formal letter to the federal government. Her concerns prompted parliamentary debate and direct conversation with the minister.
Finally, in November 2017, Ottawa announced the National Housing Strategy, with a commitment “to progressively implement the right of every Canadian to access adequate housing.” It promised to reduce homelessness by 50 percent within a decade and to introduce legislation that would require future governments to implement rights-based strategies. Many advocates deemed the budgetary and program commitments inadequate, and it was not clear what a rights-based approach would mean in practice. But this commitment to a legislated housing strategy — one based on the right to housing — was unprecedented.
Led by the Canadian Alliance to End Homelessness, and with the support of coalitions that had organized around the Tanudjaja case, nearly a thousand individuals and organizations campaigned to include the right to housing under the new law. They presented detailed proposed language to Duclos, but when the legislation was introduced in the Budget Implementation Act of 2019, it fell dramatically short. Advocates believed that the wording, as drafted by government lawyers, showed more concern with protecting the government from accountability than with ensuring human rights. Civil society mobilized once more, and with support from the Prime Minister’s Office, Duclos, and MP Adam Vaughan, the minister’s parliamentary assistant, the government drafted amendments that would affirm housing as a fundamental human right — subject to meaningful accountability mechanisms.
The National Housing Strategy Act of 2019 is a novel and creative piece of legislation that has garnered considerable international, if not domestic, attention. Indeed, it appropriately focuses on the government’s overarching obligation under the ICESCR to the “progressive realization” of the right to housing. This is significant. But what does it actually mean?
Recognizing “housing as a human right” is not merely symbolic. A true human rights approach is guided by an internationally recognized framework and requires governments to undertake specific types of activities. Canadian law has already addressed some of these areas. For example, governments have obligations to provide protection from arbitrary eviction, discrimination, and fire, health, and safety risks. These protections are implemented, albeit imperfectly, through a range of municipal, provincial, territorial, and federal statutes and are subject to enforcement by administrative bodies and the courts. Under international human rights law, they fall within Canada’s obligations to respect and to protect the right to housing.
Those obligations do not, however, ensure effective responses to systemic issues like homelessness, nor do they ensure that governments will establish the necessary programs and policies to actually make the right to housing a reality for people. Legislation has fallen tragically short when it comes to Canada’s obligation to fulfill the right to housing through “progressive realization.”
The obligation to fulfill is often misunderstood. It does not mean that governments must “provide” housing directly to anyone who demands it. Social housing and other programs are a central component of this obligation, but governments must also “facilitate” and “promote” the right through a range of measures. Governments can require private developers to include affordable housing in proposed developments, for example.
Progressive realization also recognizes that obligations must be commensurate with capacity. Impoverished countries may experience more homelessness and inadequate housing than Canada does in absolute terms, but failing to address widespread homelessness in a prosperous country is a more egregious violation under international law, because it derives from complacency and neglect — not incapacity. Canadian governments have spent less on housing programs, have cut programs altogether, and have allowed affordable housing to be replaced by luxury homes.
In order to comply with international human rights law, housing strategies must satisfy a number of criteria. They must be developed with meaningful engagement of affected groups. They must set clear and reasonable goals and timelines for the reduction and elimination of homelessness and for ensuring adequate housing. They must establish mechanisms to independently monitor progress and recommend corrective action, and they must provide access to effective remedies so that emerging challenges can be addressed as they arise.
Strategies must also be transparent and participatory, so that people can access information and be involved in developing the policies and programs that will affect their lives. Finally, they must address the breadth of policies and decisions that impact the overall housing ecosystem — beyond just “housing programs.”
The new legislation meets most of these criteria. The act requires the development and maintenance of a rights-based strategy that sets out a long-term vision and establishes goals, priorities, initiatives, timelines, and desired outcomes. It provides for participatory processes to ensure the inclusion and engagement of civil society, stakeholders, vulnerable groups, and persons with lived experience of housing need and homelessness. It does this through mechanisms such as the National Housing Council, which is intended to advise the government and will be made up of a diverse membership.
The act also creates the role of federal housing advocate, supported by the Canadian Human Rights Commission, to monitor progress, receive submissions on systemic issues and barriers faced by vulnerable groups, and initiate studies into conditions that affect the system. The advocate will submit findings and recommendations, through a designated minister, who must respond within ninety days. The advocate can also refer selected systemic issues (not individual cases) to a three-person review panel, whose members will be selected based on human rights expertise, membership in a vulnerable group, and lived experience.
What the legislation does not do is create a right to housing that an individual may claim before a court. Rather, it carves out a middle ground between a hard law and softer commitments. It provides access to hearings and other mechanisms to hold the government accountable for its international obligations without relying on binding court orders. This model creates a supplementary, parallel process for rights claiming and adjudication. It does not, however, replace the need for an ultimate recourse to courts, which international law obliges Canada to ensure. There’s more work to be done.
The National Housing Strategy Act specifies goals that are more than aspirational. It describes a set of principles and actions that move us toward adequate housing for all. Indeed, it supports the development of a new culture of human rights and has an immense transformative potential to address systemic inequities.
Will the “soft law” approach ultimately work? That will depend on the commitment and effectiveness of a range of actors, including all levels of government, the National Housing Council, the federal housing advocate, and civil society. Reliance on inclusive participation is the model’s strength. The courts alone do not wield the transformative power of this shared commitment.
On its own, the National Housing Strategy Act does not “achieve” housing as a human right. Rather, it provides a platform from which to launch a renewed commitment to a right that has been long recognized by Canada internationally but has languished at home. It provides a framework to guide policy makers toward a new approach.
Whatever the outcome of the 2019 election, the new government must work to develop, maintain, and invest in policies and programs that support the right to housing. Many advocates question whether the funding commitments made by the federal government in 2017, before the passing of the act, are sufficient to make meaningful progress. Indeed, this is something that we must continue to monitor, using the act’s accountability mechanisms. Nonetheless, policy makers and civil society have a strong foundation upon which to advocate for further action and investment and for the progressive realization of our rights.
Jennifer Tanudjaja’s case was dismissed by the courts five years ago. That’s an eternity to live without an adequate home. A home is a fundamental building block of human dignity, and the National Housing Strategy Act is a milestone for human rights in Canada. It affirms that our government must actively work toward ensuring that people have not just the rudiments of shelter but decent and adequate homes.
We must all continue this work. We must be vigilant in our efforts to turn the principles outlined in this historic legislation into actions that ensure that all persons in Canada may realize their human right to housing.