Rights-Based Strategies to Address Homelessness and Poverty in Canada. The Charter Framework

• Author: Martha Jackman and Bruce Porter
• Profession: Professor, Faculty of Law, French Common Law Program, University of Ottawa and Co-Director (Academic) of the SSHRC-CURA Research Project 'Reconceiving Human Rights Practice,'/Executive Director, Social Rights Advocacy Centre and Co-Director (Community) of the SSHRC-CURA Research Project 'Reconceiving Human Rights Practice'
• Pages: 65-106

► 65

► ► ► ►

chapter 2

RIGHTS-BASED STRATEGIES TO ADDRESS

HOMELESSNESS AND POVERTY IN CANADA

THE CHARTER FRAMEWORK*

Martha JackMan† and Bruce porter‡

A. INTRODUCTION

The interdependence and overlap between socio-economic rights recog-

nized under international human rights treaties ratif‌ied by Canada, includ-

ing the right to adequate housing and to an adequate standard of living

guaranteed by the Internat ional Covenant on Economic, Social and Cultural

Rights,1 and the rights that are explicitly included in the Canadian Charter

of Rights and Freedoms,2 such as the right to life, liber ty, and security of the

person and the right to equal ity, are widely acknowledged.3 As Bruce Porter

* This chapt er is a revised version of a longer paper w ritten for the Population He alth

Improvement Research Ne twork. The authors gra tefully acknowledge t he funding

support provided by t he Social Sciences and Hu manities Resea rch Council of Canad a

Community-Un iversity Research A lliance program .

† Mar tha Jackman, P rofessor, Faculty of Law, French Common Law Pr ogram, Univer-

sity of Ottawa a nd Co-Director (Academ ic) of the SSHRC-CURA Res earch Project

“Reconceiving Hu man Rights Prac tice,” online: www.soc ialrightscu ra.ca.

‡ Bruce Porter, Execut ive Director, Social R ights Advocacy Centre a nd Co-Director

(Community) of the SS HRC-CURA Resea rch Project “Reconceivin g Human Rights

Practice,” online: www.socialrightscura.ca.

1 16 December 1966, 993 U NTS 3, Can TS 1976 No 46 (entered int o force 3 January 1976,

accession by Cana da 19 May 1976) [ICESCR].

2 Pa rt I of the Constitution Act, 19 82, being Schedu le B to the Canada Act 1982 (UK), 1982,

c 11 [Charter].

3 Louise Arb our, “‘Freedom from Want’ — From Char ity to Entitlement” (La Fontaine-

Baldwin L ecture delivered in Quebec Cit y, 3 March 2005), online: ww w.ohchr.org

66 ► martha jackman and bruce p orter

notes in Chapter 1, an enhanced u nderstanding of the indivisibilit y of these

rights was a key factor in overcoming the historic divide between civ il and

political rights and economic and social rights at the international level.4

The UN Human R ights Committee has armed t hat positive measures are

required to address homelessness in Canad a in order to respect right to life

guarantees under article 6 of the International Covenant on Civil and Polit-

ical Rights (ICCPR).5 The committee has also pointed out that poverty dis-

proportionately af‌fects women and other disadva ntaged groups in Canada

and that, as a consequence, soci al program cuts have had a discriminatory

impact on those groups.6 From an internat ional standpoint, C anadian con-

stitutional gua rantees are seen to be directly engaged by Canada’s failure

to implement ef‌fective strategies to address poverty and homelessness. As

the UN Committee on Economic, Social and Cultural Rights notes in its

General Comment No 9 on the domestic application of the ICESCR, “[t]he

existence and furt her development of international procedures for the pur-

[Arbour, “Freedom from Want ”]; David Robitaille, Nor mativité, interprétation et

justif‌ication des dr oits économiques et sociaux : les cas q uébécois et sud-africain (Br us-

sels: Éditions Br uylant, 2011); John Currie , “International Hu man Rights Law in t he

Supreme Court’s Charter Jur isprudence: Commitment , Retrenchment and Retrea t —

In No Partic ular Order” in Sand a Rodgers & Sheila McInty re, eds, The Supreme Court

of Canada and Social Jus tice: Commitment, Retrenchment or Retre at? (Markham, ON:

LexisNexi s, 2010) 458 [Rodgers & McIntyre, T he Supreme Court of Canada and Social

Justice]; Margot Young, “Rig hts, the Homeless, and Soci al Change: Ref‌lection s on

Victoria (City) v. Adams (BCSC )” (2009–2010) 164 BC Studies 103 [Young, “Rig hts, the

Homeless, and Soci al Change”]; Malcol m Langford, “Justic iability of Socia l Rights” in

Malcolm La ngford, ed, Social Rights Jurisprudence (Cam bridge: Cambridge Universit y

Press, 2008) 3; Gwen Brod sky & Shelagh Day, “Beyond the Soci al and Economic Rights

Debate: Substant ive Equality Spea ks to Poverty” (2002) 14:1 CJWL 185 .

4 S ee Chapter 1. See also Br uce Porter & Martha Ja ckman, “Intern ational Human

Rights and St rategies to Address Homelessne ss and Poverty in Can ada: Making t he

Connection,” Working Pap er (Social Rights Advo cacy Centre, September 2011), on line:

CURA http://socialrightscura.ca [Porter & Jackma n, “Making the Con nection”].

5 Unit ed Nations Human Right s Committee, Considerat ion of Reports Submitted by

States Parties under A rticle 40 of the Covenant. Concluding Obser vations of the Human

Rights Committee: Canada, U NHRCOR, 65th Sess, UN Do c CCPR/C/79/Add.105,

(1999) at para 12 [UNH RCOR, Concluding Observations, 1999].

6 Ibid at para 20. See a lso United Nations Commit tee on Economic, Social a nd Cultural

Rights, Con sideration of Reports Submitted by S tates Parties under Articles 16 a nd 17 of the

Covenant. Concluding Obser vations of the Committee on Economic, So cial and Cultural

Rights: Canada, UNCESCROR, 36 th Sess, UN Doc E/C.12/CA N/CO/4 & E/C.12/CAN/

CO/5, (2006) [UNCESCROR , Concluding Observations, 2006].

Rights-Based Strategies to Address Homelessness and Poverty in Canada ► 67

suit of individual claims is importa nt, but such procedures are ultimately

only supplementary to ef‌fective nationa l remedies.”7

In its 2009 report, In from the Margins: A Call to Action on Poverty,

Housing and Homelessness, the Senate Subcommittee on Cities observes

that international human rights continue to be viewed by Canadian gov-

ernments as “closer to moral obligations than enforceable rights.”8 In this

context, the subcommittee points to the use by Canadian courts of inter-

national human r ights to interpret the provisions of the Char ter as the

primary means through which Canada’s international human rights obli-

gations ach ieve domestic legal enforceability.9 In his dissenting judgment

in Reference Re Public Service Employee Relations Act (Alberta), former Chief

Justice Dickson declared that “t he Charter should generally be presumed to

provide protection at least as great as th at af‌forded by similar provisions in

international human rights documents which Canada has ratif‌ied.”10 In ap-

plying this interpretive presumption, which was endorsed by the majority

in Slaight Communications v David son11 and rearmed in Health Services an d

7 United Nations Comm ittee on Economic, Socia l and Cultural Rig hts, General Com-

ment 9: The Domesti c Application of the Covenant, UNCESCROR, 19t h Sess, UN Doc

E/C.12/1998/24, (1998) at pa ra 4 [UNCESCROR, General Comment 9, 1998].

8 Senate, Subcommitte e on Cities of the Standing Sen ate Committee on Socia l Af‌fairs,

Science, and Technology, In from t he Margins: A Call to Action on Poverty, Housing

and Homelessness (December 200 9) (Chair: Hon Art Egg leton, PC) at 69, online:

Parliament of C anada www.parl. gc.ca [In from the Margins]. See a lso United Nations

Committee on Econom ic, Social and Cultu ral Rights, Consi deration of Reports Sub-

mitted by States Partie s under Articles 16 and 17 of the Covenant. Con cluding Observations

of the Committee on Economic, Soc ial and Cultural Rights: Canada, UNCES CROR, 19th

Sess, UN Doc E/C. 12/1/Add.31, (1998) at paras 14–15; United Nation s Committee on

Economic, Socia l and Cultural R ights, Consideration of Repor ts Submitted by States

Parties under Art icles 16 and 17 of the Covenant: Concluding Observa tions of the Com-

mittee on Economic, Socia l and Cultural Rights: Canada, UNCESCROR , 36th Sess, UN

Doc E/C.12/CAN/CO/5, (200 6) at para 11(b); Shelagh Day, “Mindi ng the Gap: Human

Rights Comm itments and Compliance” [D ay, “Minding the Gap”] in Ma rgot Young et

al, Poverty: Rig hts, Social Citizenship, and L egal Activism (Vancouver: U BC Press, 2007)

201 [Young et al, Povert y]; Gwen Brodsky, “The Su bversion of Human Right s by Gov-

ernments in C anada” in Young et al, Povert y, ibid at 355.

9 In from the Margins, above note 8 at 6 9.

10 Reference Re Public Ser vice Employee Relations Act (Albe rta), [1987] 1 SCR 313 at para 59

[Alberta Reference]. See, generally, Ruth Su llivan, Driedger on t he Construction of Stat-

utes, 3d ed (Markh am, ON: Butterworth s, 1994) at 330.

11 Slaight Communications Inc v Da vidson, [1989] 1 SCR 1038 [Slaight Communications]. See

also Baker v Canada (Mini ster of Citizenship and Immigration), [1999] 2 SCR 817 at par a

70 [Baker]; R v Ewanchuk, [1999] 1 SCR 330 at para 73 [Ewanchuk].