By a 2-1 majority, a provincial appellate court has halted proceedings in Tanudjaja v Canada (Attorney-General) which sought to recognise a constitutional obligation on provincial and federal governments to provide citizens with affordable and accessible levels of housing. Consequently, 10,000 pages of proposed evidence on this novel claim will remain idle pending appeal.

The original application was brought by four individuals and a public interest group (the “applicants”) in the Canadian province of Ontario. The applicants alleged that various decisions of the Ontario government and the federal government have resulted in homelessness and inadequate provision of housing.

Specifically, the applicants claimed that the actions of both governments violated their right under section 7 of the Canadian Charter of Rights and Freedoms (“Charter”) to “life, liberty and security of the person” and their right under section 15 of the Charter to the “equal protection and equal benefit of the law without discrimination”. They sought a number of remedies, including mandatory orders that strategies be developed in consultation with affected groups to provide adequate housing and that monitoring regimes be established.

Two aspects of the applicants’ claim made it unique in Canadian jurisprudence. First, the applicants did not challenge the constitutionality of a particular legislative program or scheme by either level of government; instead, the applicants made a more holistic claim that overall changes to legislative policies, programs and services have resulted in greater levels of homelessness and inadequate housing.

Secondly, to date, the Supreme Court of Canada has interpreted section 7 of the Charter as “restricting the state’s ability to deprive people” of life, liberty and security of person, as opposed to imposing an obligation on the state to ensure these rights are fulfilled.

Prior to proceeding to trial, counsel for the Attorney General of Canada and the Attorney General of Ontario successfully had the applicants’ claim struck on the basis that it was “plain and obvious” that their claim could not succeed.

Justice Lederer of the Ontario Superior Court of Justice stated: “The Application seeks the subsequent implementation of programs designed to ensure that housing which satisfies these requirements is made available, by Canada and Ontario, to the poor, disadvantaged and vulnerable members of our society. This is a desirable end. …  The question is whether the court room is the proper place to resolve the issues involved. It is not; at least as it is being attempted on the Application.”

A majority of the Ontario Court of Appeal upheld the decision, preventing the case from being heard on its merits. Justice Pardu, for the majority, held that the applicants’ claim that section 7 of the Charter confers a free standing right to adequate housing is doubtful in light of the fact that Court has previously declared the Charter does not confer a freestanding right to health care. For similar reasons, she concluded it was not necessary to decide whether homelessness can be viewed as a ground of discrimination under section 15 of the Charter.

In dissent, Justice Feldman noted that while the Charter does not provide any freestanding right to housing, Canada’s constitution, which includes the Charter, has always been interpreted as a “living tree” which is capable of growth and expansion.

Accordingly, she concluded the application ought to be heard on its merits, stating: “It has been brought by counsel on behalf of a large, marginalized, vulnerable and disadvantaged group who face profound barriers to access to justice … the [applicants] put together a significant record to support their application. That record should be put before the court”.

While Canada’s national statistics agency does not track homelessness on an annual basis, a recent report estimates that 235,000 Canadians, or just under 7 percent of Canada’s population, experience some form of homelessness every year.