(English) Right to housing legal challenge launched today

(English) Everyone in Canada has the right to a home – and the federal government has a responsibility to realize that right. That’s the basis of a legal challenge http://www.newswire.ca/en/releases/archive/May2010/26/c6474.html launched today by a coalition of housing and legal advocates. The Wellesley Institute is providing policy support to the new coalition, including expert evidence on funding and legislative decisions by the federal government over the past two decades. I’ve provided detailed numbers on housing funding, programs and policy decisions that have been incorporated into the affidavit of Dr David Hulchanski, who is the leading expert witness for the coalition.

The Globe and Mail featured the legal challenge in a newspaper article http://www.theglobeandmail.com/news/national/charter-challenge-aims-to-force-governments-to-create-public-housing/article1580971/. In February of last year, the United Nations’ Human Rights Council conducted a Universal Periodic Review <http://www.ohchr.org/EN/HRBodies/UPR/Pages/CASession4.aspx> of the federal government’s role in meeting its international housing rights obligations, and set out 68 specific recommendations. In Canada’s formal response to the UPR
http://www.pch.gc.ca/pgm/pdp-hrp/inter/101-eng.cfm, the federal government acknowledged that it needs to do more on housing and homelessness policy.

While legal challenges on the right to housing have been launched in a number of countries around the world over the past few decades, and some have been successful in moving policy and funding, Canadian courts tend to be a bit more reluctant to be “judicial activists”. They tend to defer to legislatures and say that policy and funding are the province of politicians, not the courts. However, there have been a couple of recent Charter cases in which the Supreme Court has left an open door in terms of reading into the Canadian Charter of Rights and Freedoms a more fulsome understanding of the federal obligation to realize fundamental human rights. For instance, it has been long recognized in international law that the right to housing is a subsidiary right of the right to an adequate standard of living which is, in turn, a subsidiary right of the right to life. Canada’s Charter of Rights and Freedoms does, indeed, set out the right to life and certain court decisions have held that this right needs to be understood in the context of international jurisprudence.

The legal challenge being launched today is complicated. First, you have to get some litigants who will “stand in” for the entire class of Canadians who are homeless or precariously housed. The first step for the courts will be to determine whether the challenge can proceed based on the particular facts of the unique litigants. The federal government will be expected to argue that the circumstances that led to the housing insecurity experienced by the litigants was entirely due to their lifestyle choices and that there
is no obligation on the federal government. The panel of law professors and lawyers who have developed the legal basis for the challenge have done a formidable piece of work drawing on Canadian and international jurisprudence to build the case.

There continues to be a lively debate about whether the courts are the best forum to advance critical social policy objectives – like the need for a new national housing plan for Canada and for effective strategies to end homelessness. At the same time that the legal challenge is moving forward, Parliament is also preparing for third (and final) debate and reading on Bill C-304 – and the Wellesley Institute has also played an important supporting role in this work. There are some interesting developments on that front that suggest there may be some positive movement. And, of course, the Wellesley Institute and others have long been using the human
rights forums of the United Nations (including last year’s Universal Periodic Review by the UN Human Rights Council of Canada’s human rights obligations, including the right to housing) as another practical mechanism to move the housing policy agenda forward in Canada.

My own view tends to lean towards the pragmatic: Use whatever works, and don’t waste a lot of time on initiatives that are not likely to yield results.

If the challenge moves forward, then it will likely be several years before it makes its way to the Supreme Court for final decision.

The Wellesley Institute has no formal role in the litigation (ie we are not a party to the challenge), but I expect that I will be called as
an expert witness on government funding and policy at some point in the proceedings.

Source: Michael Shapcott | Director, Affordable Housing and Social Innovation
|Wellesley Institute

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