tanudjaja v. attorneys general canada and ontario the right to housing charter challenge

TANUDJAJA

v.

ATTORNEYS GENERAL CANADA AND ONTARIO

THE RIGHT TO HOUSING CHARTER CHALLENGE

2

Laurie Letheren

ARCH DISABILITY LAW CENTREwww.archdisabilitylaw.ca

425 Bloor St. E. Ste. 110Toronto, Ontario M4W 3R4Tel: 416-482-8255 or 1-866-482-2724TTY: 416-482-1254 or 1-866-482-2728Fax: 416-482-2981 or 1-866-881-2723

http://www.archdisabilitylaw.ca/

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

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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

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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

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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, 2013

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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 TanudjajaJanice ArsenaultAnsar MahmoodBrian Dubourdieu

• Respondents are Attorney General of Canada and Attorney General of Ontario

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TANUDJAJA v. ATTORNEYS GENERAL CANADA AND ONTARIO


• 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.

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• 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

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• 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

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• 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

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File 10, 000 pages of evidence in support of the alleged failures by Canada and OntarioEvidence 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

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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 rightsThe scope and meaning of section 7 rightsThe question “Do governments have positive obligation to ensure that rights guaranteed under the Charter are realized?”

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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

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Draws great attention from Equity Seeking Groups who Intervene

The Dream Team

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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

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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?”

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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.”

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Ontario Court of Appeal

Applicants get leave to Ontario Court of Appeal

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Even More Equity Seeking Groups Intervene

The Dream Team

2020

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

2121

ARCH Coalition argumentsAnalysis 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

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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

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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

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Next

• Now seeking leave to SCC

• What will mean if succeed

• Years and resources

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THANK YOU

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tanudjaja v. attorneys general canada and ontario the right to housing charter challenge

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