Housing, the Charter and International Law

Bruce Porter, Director of the Social Rights Advocacy Centre (and CERA’s founder!) discusses using the Charter to promote housing rights.

Four levels of human rights protections may be used to promote and enforce housing rights.  Each is different in its application and scope, but all contain similar prohibition of discrimination in housing.

The Ontario Human Rights Code applies to the provincial government and to municipal governments, as well as to private actors such as individual landlords and employers.  The Human Rights Code has a relatively broad list of prohibited grounds of discrimination.

The Canadian Human Rights Act applies to the Federal Government, federal agencies like Canada Mortgage and Housing Corporation, and federally regulated businesses, including railways, telecommunications and banks.  It also applies to the actions of Band Councils and on-reserve housing, but does not apply to distinctions created by the Indian Act.

The Canadian Charter of Rights and Freedoms (the Charter) applies to all levels of government in Canada, or to agencies or individuals which are delegated the authority to perform governmental functions. It does not, however, apply directly to private actors when they are acting in a private capacity. It is the pre-eminent law in Canada, and all other law must conform to it.  The Charter contains a shorter list of enumerated grounds of discrimination that are prohibited, including race, sex, disability and religion, but also prohibits other forms of discrimination where a court or tribunal finds these to be analogous to the listed grounds. Sexual orientation and family status have been found to be analogous to other forms of discrimination. It has not yet been decided by the Supreme Court of Canada whether poverty or social condition are prohibited grounds of discrimination under the Charter.

CERA’s former executive director and staff lawyer, Leilani Farha, discusses housing and international human rights law.

International human rights law, like the Charter, applies to all levels of government in Canada once it is “ratified” by Canada.  Like the Charter, it does not apply directly to individuals. Canada has ratified a broad range of international human rights instruments, including the International Covenant on Economic, Social and Cultural Rights, which recognizes the right to adequate housing.  Unlike the Charter, international law is not directly enforceable by courts or adjudicators, so one cannot go to court or to a human rights adjudicator to demand a remedy to a violation of the right to housing under international human rights law.  Each international human rights treaty has a special UN body or committee whose task is to review compliance of state parties. Canada is reviewed every five years or so under each human rights treaty, and the UN body issues concluding observations which identify particular concerns and recommend changes.  The “Concluding Observations” of the UN Committee on Economic, Social and Cultural Rights, the UN Human Rights Committee and other UN human rights bodies have identified a number of serious concerns about housing and homelessness in Canada. These Concluding Observations can be very useful in advocating for housing rights before courts, tribunals and directly with governments.

However, where adjudicators are interpreting the meaning of statutes or exercising their authority to make decisions, such as deciding who will have access to subsidized housing, these decisions must be consistent with the values enshrined in international human rights, including the recognition that housing is a basic human right.  Decisions that are made by government actors or administrators that are inconsistent with the right to housing under international law may be challenged for being “unreasonable” on this basis.

If discrimination that is being challenged relates to a private actor such as a landlord who is not performing any kind of governmental function, (such as administering government housing), then  only the Human Rights Code applies directly.  In these cases, the Charter and international human rights may be applied ‘indirectly’, to assist in interpreting what the Human Rights Code means and how it applies in particular circumstances.

Where action being challenged relates to policies or laws of governments, then claimants have a choice as to whether to proceed by using the Human Rights Code or by using the Charter.

This is a modified version of an chapter written for CERA by Bruce Porter of the Social Rights Advocacy Centre.