TANUDJAJA v. ATTORNEYS GENERAL CANADA AND ONTARIO THE RIGHT TO HOUSING CHARTER CHALLENGE

2 Laurie Letheren ARCH DISABILITY LAW CENTRE Bloor St. E. Ste. 110 Toronto, Ontario M4W 3R4 Tel: or TTY: or Fax: or

Housing Situation in Canada Housing advocates claimed for many years that Canada is in the midst of a housing crisis In 2007 the United Nations Special Rapporteur on adequate housing, Miloon Kothari, “housing situation in Canada is very stark and very disturbing” Between 1993 and 2001, no new federal money had been provided for building new social housing 33

Housing Situation in Canada In Canada, more than a million people are in housing need and there are an estimated 200,000 people living homeless The core housing need is highest amongst Aboriginal households, single mothers, seniors living alone, and recent immigrants. Canada is the only one of the G8 countries that does not have housing strategy 44

Attempts to have Government Address Housing Issues Bill C- 400: The Secure, Adequate, Accessible and Affordable Housing Act The bill incorporated all of the key recommendations of UN Special Rapporteur on Adequate Housing Government was to develop goals and timelines for eliminating of homelessness Independent complaints procedure for violations of the right to adequate housing Community participation in development and evaluation A process for review and follow-up on any concerns or recommendations from United Nations Provision of financial assistance to those who cannot otherwise afford housing 55

Attempts to have Government Address Housing Issues Parliament was dissolved before the Bill reached a third reading vote. Bill was reintroduced as a private member’s bill in the subsequent Parliament under a Conservative majority. Despite widespread support from civil society organizations, the Bill was defeated by Conservative majority on February 27,

Charter Challenge Begins Notice of Application was filed in Ontario Superior Court on April 26, 2010 Applicants are Centre for Equality Rights in Accommodation, Jennifer Tanudjaja Janice Arsenault Ansar Mahmood Brian Dubourdieu Respondents are Attorney General of Canada and Attorney General of Ontario 77

TANUDJAJA v. ATTORNEYS GENERAL CANADA AND ONTARIO THE RIGHT TO HOUSING CHARTER CHALLENGE Unique case both in the nature of what is challenged and the remedy that is sought. The claim does not challenge a particular law or government action but rather the failure of two government to develop and implement housing strategies to effectively address homelessness. 88

TANUDJAJA v. ATTORNEYS GENERAL CANADA AND ONTARIO THE RIGHT TO HOUSING CHARTER CHALLENGE Governments’ failure it implement a national housing strategy and to adequately address and reduce the national housing crisis violates  the section 15 equality rights of the applicants  the applicants rights to life, liberty and security of the person as protected by section 7 99

TANUDJAJA v. ATTORNEYS GENERAL CANADA AND ONTARIO THE RIGHT TO HOUSING CHARTER CHALLENGE Housing is a necessity of life UN Declaration of Human Rights and other UN rights treaties which Canada has ratified guarantee the right to housing These UN treaties place positive obligations on Canada and Ontario to take reasonable action to ensure the right to adequate housing 10

TANUDJAJA v. ATTORNEYS GENERAL CANADA AND ONTARIO THE RIGHT TO HOUSING CHARTER CHALLENGE UN treaties are tools to interpreting the meaning of rights guaranteed by the Charter Charter rights should be presumed to provide protections that are as great as those provided under international treaties which Canada has ratified 11

TANUDJAJA v. ATTORNEYS GENERAL CANADA AND ONTARIO THE RIGHT TO HOUSING CHARTER CHALLENGE File 10, 000 pages of evidence in support of the alleged failures by Canada and Ontario Evidence includes:  3 sworn statements by persons with lived experience of homelessness  12 sworn statements of experts on the housing crisis in Canada including a sworn statement from Miloon Kothari, UN Special Rapporteur on Adequate Housing 12

TANUDJAJA v. ATTORNEYS GENERAL CANADA AND ONTARIO THE RIGHT TO HOUSING CHARTER CHALLENGE 13 Months after governments received all the evidence, they filed a MOTION TO STRIKE If successful, no court will hear the full arguments about The scope and meaning of section 15 rights The scope and meaning of section 7 rights The question “Do governments have positive obligation to ensure that rights guaranteed under the Charter are realized?” 13

TANUDJAJA v. ATTORNEYS GENERAL CANADA AND ONTARIO THE RIGHT TO HOUSING CHARTER CHALLENGE Government argues: Charter sections 7 and 15 do not guarantee a right to housing The application does not challenge any law The challenge is to governments social and economic policies and these are not matters to be dealt with by courts The remedy would involve too much court supervision of government decisions and is not manageable 14

Draws great attention from Equity Seeking Groups who Intervene The Dream Team 15

Intervenor Arguments Concern that striking before hearing all the evidence to consider the merits will create great barrier to advancing the scope and meaning of rights guaranteed by the Charter In particular, the meaning of right to life liberty and security of the person (section 7) has been slowing expanding beyond criminal context 16

Intervenor Arguments Cannot understand the importance of housing to Aboriginal people, new Canadians, people with disabilities, women without hearing evidence and understanding context “is right to housing a right to life” “does lack of affordable and accessible housing have a particular impact on these groups that amounts to a breach of section 15 equality rights?” 17

Justice Lederer decision the applicants had not attacked any particular piece of legislation, courts are ill-suited to review governments’ social priorities unlikely that government action is the cause of the homeless Canadian courts have been extremely reluctant to embrace such “positive rights.” 18

Ontario Court of Appeal Applicants get leave to Ontario Court of Appeal 19

Even More Equity Seeking Groups Intervene The Dream Team 20

ARCH Coalition arguments ARCH Coalition argued: UN Convention on the Rights of Persons with Disabilities is Important Interpretive Tool By ratifying the CRPD Canada has accepted obligations ”to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities including the right to adequate and appropriate housing clear judiciable issues regarding the violations of many Canadians’ “right to life, liberty and security of the person” that result from the Respondents’ failures to adopt effective strategies to address homelessness 21

ARCH Coalition arguments Analysis of s.7 rights must include an element of human dignity and adequate and appropriate housing is fundamental to achieving human dignity for people with disabilities For people with disabilities, the right to adequate housing also provides a “right to life” at its most basic meaning A proper section 15 analysis cannot be undertaken without a full understanding of the impact that the Governments’ failures have on people with disabilities especially since people with disabilities experience discrimination in ways that are often different and unforeseen 22

Court of Appeal Decision Court split 2-1 Majority state court cannot decide the issues because the Charter challenges under s. 7 and s. 15 do not apply to any specific law or specific application of a law Attacking complex policies and programs and not area for court to review 23

Court of Appeal Decision Dissent finds that lower court judge erred because: 1)he misunderstood the appellants’ s. 7 claim and stated it in an overly broad manner; 2) he erred in stating that the s. 7 jurisprudence on whether positive obligations can be imposed on governments to address homelessness is settled 3) he erred in purporting to define the law in a critical area of Canadian jurisprudence on a motion to strike; and 4) most importantly, he erred in concluding that the issue of whether the appellants had a potential claim under s. 7 could be decided without considering the full evidentiary record 24

Next Now seeking leave to SCC What will mean if succeed Years and resources 25

THANK YOU 26