The National Housing Strategy and Canada’s Progression Towards Positive Rights

The recently released National Housing Strategy, A Place to Call Home (the “Strategy”), puts housing policy, especially for those in core housing need, squarely in the national conversation. The Strategy explicitly takes a human rights focus, which is welcome news for many housing advocates.

The Strategy describes this focus in the following terms:

Canadians deserve safe and affordable housing. That is why the federal government is taking these additional steps to progressively implement the right of every Canadian to access adequate housing. Our plan is grounded in the principles of inclusion, accountability, participation and non-discrimination, and will contribute to United Nations Sustainable Development Goals and affirm the International Covenant on Economic, Social and Cultural Rights.

Progressive Implementation

The interpretation of Canada’s Constitution and Charter of Rights and Freedoms (the “Charter”) so far has excluded the recognition of positive rights. However, the language in the Strategy suggests that the current government is willing to move toward positive rights. At this point, it is not possible to say whether these rights would be more like legislative entitlements, or more like quasi-constitutional guarantees (like those found in Ontario’s Human Rights Code).

Making this change could also signal to courts that the government is endorsing a positive-rights model of Charter interpretation, while bringing the nation more closely into step with countries with more modern constitutions, such as South Africa. The South African Supreme Court has interpreted the socio-economic rights under the South African constitution not to impose a strict duty on the government to supply any given good, but instead to implement “a reasonable program for ensuring access to housing for poor people, including some kind of program for ensuring emergency relief.”[1]

In the Canadian housing context, a similar interpretation would not require the government to house every person, but rather that it develop and implement policies at a reasonable pace to achieve that goal. This is consistent with the language used in the Strategy.

Principles of Inclusion, Accountability, Participation and Non-discrimination

The Strategy intends to achieve the above principles through five initiatives.

Inclusion and Accountability are supposed to be enhanced by new legislation and a Federal Housing Advocate. The legislation “will require the federal government to maintain a National Housing Strategy that prioritizes the housing needs of the most vulnerable”, while “vulnerable groups, low-income Canadians, and people with lived experience of housing need” will soon be able to advise government and the Canada Mortgage and Housing Corporation (“CMHC”) of systemic issues and barriers.

Participation and Non-discrimination will be encouraged through a National Housing Council, made up of housing sector stakeholders. A Community-Based Tenant Initiative will fund local organizations that assist people in housing need to participate in local housing policy and housing project decision making. Finally, a public engagement campaign will attempt to reduce discrimination and stigma directed towards low income housing, with the ultimate goal of supporting socially inclusive housing.

Since the initiatives are all in development, it is not possible to predict whether they will succeed at fostering any of these principles. There are many questions about policy implementation (like, how will minority voices in housing co-operatives be protected) that will be crucial to whether the Strategy will effectively curb housing need.

International Covenant on Economic, Social and Cultural Rights (ICESCR)

Canada became a party to the ICESCR on May 19, 1976, just after it came into force. The right to housing is included in the Covenant as part of the right to an adequate standard of living.[2] While governments have taken various actions in line with the ICESCR, and have gone through six reporting phases, the United Nations has been critical of Canada’s actions with respect to the Covenant, given its relative wealth.[3] The development of the Strategy and its goal of progressive implementation, however, is directly supportive of the vision of positive rights found in the ICESCR.

Only time will tell how the Strategy’s direct linkage to the ICESCR will play out in jurisprudence. While it is non-binding, the Supreme Court of Canada has referred at least fifteen times to the ICESCR in its decisions, most often in the context of labour disputes. The Supreme Court regularly refers to Canada’s international commitments when making decisions related to the social and environmental protections (e.g. Baker v. Minister of Citizenship and Immigration; Spraytech v. Hudson). It would not be surprising, when the next positive rights case makes its way to the Supreme Court, if the Justices explicitly connect federal policy to a recognition of positive rights through the ICESCR and the Strategy. 

Conclusion

The Strategy is set to put Canada on a course to actualize its commitments under the ICESCR and open the door to positive economic rights as envisioned by that covenant. This has the potential to be a watershed moment in Canada’s movement toward the recognition of progressive rights in housing, and potentially other ICESCR areas. Before that happens, though, it will be important to watch, and influence how the details of the current strategy develop.

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