TANUDJAJA

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

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• Laurie Letheren
• ARCH DISABILITY LAW CENTRE
• www.archdisabilitylaw.ca
• 425 Bloor St. E. Ste. 110
• Toronto, Ontario M4W 3R4
• Tel [phone] or 1-866-482-2724
• TTY 416-482-1254 or 1-866-482-2728
• Fax [phone] or 1-866-881-2723

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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 members 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 Tanudjaja
• Janice Arsenault
• Ansar Mahmood
• Brian Dubourdieu 
• Respondents are Attorney General of Canada and
  Attorney General of Ontario

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TANUDJAJA v. ATTORNEYS GENERAL CANADA AND
ONTARIOTHE 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.

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TANUDJAJA v. ATTORNEYS GENERAL CANADA AND
ONTARIOTHE 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

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TANUDJAJA v. ATTORNEYS GENERAL CANADA AND
ONTARIOTHE 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

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TANUDJAJA v. ATTORNEYS GENERAL CANADA AND
ONTARIOTHE 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

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TANUDJAJA v. ATTORNEYS GENERAL CANADA AND
ONTARIOTHE 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

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TANUDJAJA v. ATTORNEYS GENERAL CANADA AND
ONTARIOTHE 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?

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TANUDJAJA v. ATTORNEYS GENERAL CANADA AND
ONTARIOTHE 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

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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
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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

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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

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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
• 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