Meaningful Engagement in Housing Law: Québec’s New Approach to Informal Settlements?

by | Apr 18, 2023

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About Marie-Hélène Lyonnais

Marie-Hélène Lyonnais is an MJur candidate at the University of Oxford, as a McCall MacBain Scholar. She completed her BCL and JD degrees at McGill University in 2020, and worked as a clerk for Justice Nicholas Kasirer at the Supreme Court of Canada in 2021-2022. Her main research interests lie in the theoretical foundations of human rights law, federalism, and governance in the digital age.

The city of Montreal is facing a growing crisis of homelessness. Individuals who are unhoused face several social and economic challenges, including the constant threat of displacement. In March 2023, the city of Montreal declared its intention to dismantle an informal settlement located under a highway to allow the Québec Ministry of Transport to undertake an infrastructure project. It is estimated that the settlement, which has existed for more than 10 years, hosts 15 individuals who now face serious physical and mental health issues.

Following the eviction threat, an NGO (‘Clinique Juridique Itinérante’ or ‘CJI’) defending the rights of individuals in situations of homelessness initiated proceedings before the Superior court, seeking an injunction preventing the dismantlement of the settlement. The NGO argued that the occupiers had the right to be provided with long-term housing that would meet their particular needs.

The morning before the hearing for the injunction, the CJI and the government announced they had reached an agreement to suspend the proceedings and to engage in meaningful negotiations in order to find housing for the occupiers. The goal of the negotiations was to find not only temporary, but permanent housing that responds to the affected persons’ individual needs.

Towards a recognition of a right to meaningful engagement?

The Québec Government’s unprecedented decision to engage in formal negotiations with the CJI in order to provide long-term housing merits the attention of Canadian human rights advocates: neither the Canadian Charter nor the Quebec Charter provide for a constitutional right to housing. While both documents have been interpreted as guaranteeing the right not to be discriminated against in the provision of housing (through section 15 of the Canadian Charter and Article 12 of the Québec Charter), courts have never recognized that the section 7 right to life, liberty and security included a stand-alone socio-economic right to housing. In this context, the Québec government, in requiring the eviction of the occupiers, had no formal obligation to provide alternative long-term housing.

What should spark our interest is that the government’s decision to negotiate with the occupiers gives the impression that it did recognise that the occupiers benefited from some type of right. The right implicitly recognised, in my view, is not a substantive, general and positively-construed right to housing (i.e. to provide suitable shelter to everyone in need), but instead a right to meaningful engagement preceding eviction (akin to that recognised in South African law).

The right to meaningful engagement, in South African courts, has been understood as requiring public authorities to engage in meaningful discussions ‘both individually and collectively’ with occupiers (Occupiers of 51 Olivia Rd [13]). The objectives of the ‘two-way process’ are, namely, to determine what the ‘consequences of the eviction might be’, and how the ‘city could help in alleviating’ them (Occupiers of 51 Olivia Rd [14]). As the Constitutional Court explains in this case, the main benefit of engagement is that it ‘has the potential to contribute towards the resolution of disputes and to increased understanding and sympathetic care if both sides are willing to participate in the process’ [15].

Another advantage of the right to meaningful engagement is that it is attractive to states that are not prepared to recognise a full-blown, substantive right to housing. Such states may nevertheless be ready to take an incremental step in this direction by embracing a right to meaningful engagement. The Québec government’s approach is an illustration of this, although it bears noting that the negotiations with the NGO did lead to an agreement to relocate each occupier in long-term housing, thereby raising questions as to whether Québec went further than just recognizing a right to meaningful engagement.

What also remains to be seen is whether the government’s approach will set a precedent for meaningful engagement, and whether Québec courts, as in South Africa, will issue engagement orders in cases where the government fails to engage. The absence of constitutional anchoring for the right to housing in Canada might make this difficult. In any event, Québec lawyers will benefit from engaging in an interjurisdictional dialogue with South African legal scholars on the question of housing and meaningful engagement.

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