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In Canada, Housing Is a Right. Right?

Sure, on paper. In practice, feds fail to live up to 40-year-old UN commitment.

By Katie Hyslop 26 Feb 2016 | Tyee Solutions Society

Katie Hyslop reports on affordable housing for Tyee Solutions Society. Follow her on Twitter @kehyslop or read her previous reporting published on The Tyee here.

This series is produced by Tyee Solutions Society. It was made possible through the support of the Real Estate Foundation of B.C., the Catherine Donnelly Foundation, Vancity Credit Union, the Aboriginal Housing Management Association, the Vancouver Foundation, and in partnership with Columbia Institute. TSS funders neither influence nor endorse the particular content of TSS reporting. Other publications wishing to publish this story or other TSS produced articles, please visit www.tyeesolutions.org for contacts and information.

Attend almost any rally in support of housing in Canada, and you'll hear the chant or declaration from the mic: housing is a right, not a privilege.

But is it, really? Legally speaking?

There's definitely a moral argument to be made. Ron Basford, minister of urban affairs under Prime Minister Trudeau the elder, seemed to think so when he introduced Canada's then-new housing legislation in 1973: "When we talk about people's basic needs -- the requirements for survival -- society and the government obviously have an obligation to assure that these basic needs of shelter are met," Basford, a Vancouverite, said then.

But a moral claim isn't the same as a legal one. And there it gets murkier.

Nothing in Canada's constitution establishes a right to housing, and courts haven't declared one to exist. However, Canada has signed and ratified the 1976 United Nations' International Covenant on Economic, Social, and Cultural Rights (ICESCR), and in Article 11 it does recognize "the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions."

"Parties will take appropriate steps to ensure the realization of this right," the next sentence of the covenant says.

Pivot Legal Society housing lawyer DJ Larkin says although Canada has no law protecting a right to housing on the books, since signing these covenants Canada has repeatedly told the international community our existing laws and policies should be "interpreted in a way that is in keeping with our covenant obligations."

Mind you, Canada declined to sign the covenant's optional protocol that would have allowed a covenant body to hold our country accountable when it violates those rights.

Then again, Canada has also ratified the UN's International Convention on Women's Rights, and had a hand in drafting the Universal Declaration on Human Rights. Both of these also mention a right to housing, either as part of a right to "a standard of living adequate for the health and well-being of himself and of his family," or on a basis of equity with men who enjoy a right to adequate housing.

"Essentially, Canada has committed on the international scene to respecting a right to adequate housing for every resident in Canada," said Margot Young, law professor at the University of British Columbia.

"So one can quite credibly argue that signing onto these treaties has obligated all levels of government in Canada to recognize [that commitment] in their actions, and also to implement in domestic law the right to adequate housing."

Failing to deliver

Evidence that Canada is failing to deliver on that right is in our overcrowded shelters, tent cities, or sidewalk camps, where an estimated 235,000 people experience homelessness every year. By definition, it would seem, their right to housing as guaranteed by the covenants Canada has signed, is being denied.

But not everyone accepts the idea that those covenant commitments are binding.

In 1998, the Liberal government of the time, led by Jean Chretien, took the position that our Charter of Rights and Freedoms doesn't include economic rights like adequate housing.

In 2009, then-UN special rapporteur on adequate housing, Miloon Kothari, found that Canada had no official definition of homelessness, far less a national housing strategy; had decimated national social housing programs; downloaded housing to provinces and cities without funding; and stood by while housing prices and homelessness rose, and incomes failed to keep pace.

Kothari's position is filled now by Leilani Farha, also executive director of Canada Without Poverty (CWP), one of many organizations that sent representatives to Geneva Feb. 22-23 to testify at an international review of Canada's ICESCR adherence. Her group called on the federal government to take "new, different and more forward-looking positions" on the right to housing.

But when the Canadian delegation addressed the UN this week, despite renewing its commitment to affordable housing, including on First Nations reserves, Canada did not commit to adopting right to housing laws or policies.

A 'strategic moment'?

Canadian courts have generally viewed Canada's covenant commitments as interpretive tools for reading meaning from our constitution, says Young. They've also historically shrunk from appearing to interfere in political decisions, and so far have resisted appeals by Canadian NGOs to declare housing a clear-cut legal right in this country.

In 2010, the Advocacy Centre for Tenants Ontario made an application to the Ontario Superior Court on behalf of four homeless or precariously housed people, arguing that both the federal and provincial governments had violated their right to adequate housing under sections seven ("right to life, liberty, and security of person") and 15 ("equality") of the Charter of Rights and Freedoms.

Both governments moved to dismiss the application, which the court did in 2013, before the case came to trial. The Advocacy Centre appealed, first to the Ontario Court of Appeal and then the Supreme Court of Canada. Both upheld the original dismissal, killing the case for good in 2015.

"The position of the government of Canada is that housing has been a purely policy issue," said Pivot's Larkin, "and that policy initiatives alone will be sufficient to meet their obligations to provide for housing."

The international community and legal experts disagree. They argue that Canada needs a housing policy based on its human rights commitments so that, as Larkin says, "we can actually assess how Canada is doing, and [so] people have recourse through the courts when their rights are violated."

But while the Conservative government may have dodged a day in court over the issue, the Canadian electorate tossed them out, notes Helen Luu, outreach coordinator for the Ontario tenants advocacy centre.

"We're thinking of it as a strategic moment: we've got this new government in power that's trying to distance itself from the Harper government," Luu said. But she believes it will take public pressure, more than an unenforceable UN report, to get the new government to recognize housing as a right.

Billions in savings

Housing every Canadian adequately sounds like it might be an expensive proposition, but advocates argue that the cost of leaving people homeless or precariously housed is much higher.

The Canadian Homelessness Research Network estimated in a 2014 report that a comprehensive national housing strategy that included maintaining and expanding social and indigenous housing, as well as rental and home owner subsidies, could be implemented for about $4 billion a year -- twice what the federal government has been spending on social housing in recent years. Offsetting that, however, would be annual savings in emergency and social services that the Network estimated at $7 billion.

But the pay off would be more than financial, Larkin says. "One of my hopes would be that it would change the social structure of our cities," she says, "to accept that we should have diversity in all of our cities, that people who are not the richest of the rich should also be allowed to live in Vancouver, and that people should be able to age in place."

Meanwhile, Canadians may have a moral right to adequate housing enshrined in international covenants -- and our federal government has signed on in principle. But 40 years later, it's still not ready to put that principle into action. Getting it to do so, experts agree, will be a job for politics rather than the law.  [Tyee]

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