About this Article: This article examines Canadian Constitutional provisions that can be used to protect the right to adequate housing and freedom from poverty, both of which contribute to population health. Four key Canadian constitutional sections provide a basis to challenge governments to protect these rights.
About This Series: The É/Exchange working paper series is designed to facilitate sharing of results and to encourage discussion of concepts, practices, and policies in applied health. This series provides a way to disseminate well-written, but not yet published, reports of research. It is also a way to make research conducted by affiliated community members accessible to a wider readership. The series is co-sponsored by The Population Health Improvement Research Network (PHIRN), Réseau de recherche appliquée sur la santé des francophones de l'Ontario (RRASFO); and the Ontario Health Human Resources Research Network (OHHRRN).
A “rights-based” approach to poverty places social rights as equal to civil and political rights, and thus subject to the same remedies. In addition to being officially enforceable within the UN system, social rights are claimable in Canadian courts. They are also recognized through participatory rights in program and policy design and in the implementation and monitoring of related strategies.
The UN has clarified governments’ obligations to adopt coherent and effective strategies to reduce and eliminate homelessness and poverty, with measurable goals, standards and time lines, reasonable budgetary allocations, legislative provisions, and social rights complaints procedures. A recent paper by Jackman and Porter explores the extent to which a Canadian constitutional framework exists for a rights-based approach to housing and anti-poverty strategies in Ontario. This paper builds on the international human rights law and jurisprudence discussions outlined in previous paper: A Human Rights Context for Addressing Poverty and Homelessness (É/Exchange. February, 2012).
Four key Canadian constitutional provisions can be used to protect the right to adequate housing and freedom from poverty:
- Section 36 of the Constitution Act, 1982 outlines the constitutional commitment of Canadian governments from all levels to provide essential public services of reasonable quality, promote equal opportunity and further economic development to reduce disparity in opportunities to all Canadians.
- Section 7 of the Charter of Rights and Freedoms guarantees the right to life, liberty and security of the person and provides a solid basis for claiming both a substantive right to fair and reasonable housing and anti-poverty strategies, and procedural rights to meaningful, rights-based participation in the design, implementation, monitoring and evaluation of such strategies.
- Section 15 of the Charter provides for the right to equal protection and equal benefit of the law without discrimination and focuses attention on the situations of disadvantaged and marginalized groups and on equal citizenship and inclusion, rather than on 'impairment' requiring assistance or charity. This Section goes beyond addressing economic and physical needs by providing an avenue for challenging structural and systemic injustice and exclusion of those who are homeless or living in poverty.
- Section 1 of the Charter calls for governments and their decision-makers to balance and limit rights in a manner that is reasonable and demonstrably justifiable. It obligates compliance with international law to implement and realize social and economic rights through the adoption of reasonable measures, with the expectation that the government balances it with the constraints of available resources and competing needs. As such, the onus lies with governments to demonstrate that an infringement of a Charter right is reasonable and demonstrably justified.
International human rights norms suggest that domestic laws and regulations must, wherever possible, be interpreted by courts, governments and decision-makers, in a manner consistent with international human rights law. Under these various constitutional provisions, rights claimants have the right to expect various levels of government to cooperate and provide coherent strategies that are focused on affirming and realizing fundamental social rights.
Characterizing homelessness or poverty as including not only economic deprivation, but also a socially created identity, encourages an appreciation of the systemic or structural obstacles which prevent equal participation, including prevailing patterns of marginalization, stereotype and social exclusion linked to the devaluation of the group's rights and, as a consequence, unmet needs.
Discrimination as a Barrier to Equality
Government neglect of the needs of this vulnerable group can be linked to false stereotypes about homeless people and the devaluing of their rights. Governments at every level are dissuaded from reasonably addressing the needs of the homeless on the basis of the stereotype that the group's moral unworthiness and laziness means that, the more their needs are addressed, the more of a 'problem' they will become.
The Supreme Court has recognized that discrimination occurs when a policy fails to takes into account "the actual needs, capacity, or circumstances of the claimant and others with similar traits in a manner that respects their value as human beings and members of Canadian society." Housing and antipoverty strategies must similarly recognize and address the unique needs, capacities and circumstances that arise from economic deprivation. At the same time, such strategies must remedy the devaluing of rights and capacity.
The fact that adequate housing, or an adequate standard of living, are not explicitly recognized as constitutional rights in Canada does not mean that there is no domestic constitutional framework to protect and guarantee these rights. The domestic constitutional rights framework can be embraced by rights claimants, civil society organizations and legislators. It is up to citizens and those who are designing and implementing strategic responses to these widely recognized human rights violations to reclaim Charter rights.
Reference: Jackman, M. & Porter B. Rights Based Strategies to Address Homelessness and Poverty as Social Determinants of Health in Ontario: The Constitutional Framework. Exchange Working Paper Series, Volume 3, Number 4. University of Ottawa, Ottawa, Canada. Available at rrasp-phirn.ca.