Law Times

Law Times • June 2, 2014 Page 5 www.lawtimesnews.com Appeal to consider courts' role in social policy Groups challenge earlier ruling on governments' actions on homelessness By yamri Taddese Law Times fter the Superior Court dismissed their con- stitutional challenge last year, advocates for the homeless were at the Ontario Court of Appeal last week in a bid to revive a case against the provin- cial and federal governments for failing to protect the "security of the person" of homeless people. Justice Thomas Lederer dis- missed the challenge at the gov- ernments' request last year after finding it was "plain and obvi- ous" the application would fail. The challenge under the Charter of Rights and Freedoms, he said, amounted to "inviting the court to cross institutional boundaries into an area that should be re- served for the legislature." But Peter Rosenthal, one of the two pro bono lawyers repre- senting the applicants, argued on appeal that the application would have a reasonable chance of succeeding if they could bring evidence before the court. "Poor people have done poorly under the Charter," Rosenthal tells Law Times. "It's our view that it's time to change that." The challenge seeks a declara- tion that the provincial and fed- eral governments' failure to cre- ate the proper laws, policies, and programs to address homeless- ness breaches ss. 7 and 15 of the Charter. They're also asking the court to order the governments to undertake a collaborative housing strategy to rectify the situation. The case raises legal and philo- sophical questions about the role of the courts and the limits to their roles. According to the appellants, federal and provincial govern- ments have, for many decades, made affordable housing avail- able through laws and policies but actions taken by the respon- dents to amend them "have cre- ated and sustained increasingly widespread homelessness and in- adequate housing, and produced severe health consequences and death among the most marginal- ized groups in society, contrary to Charter s. 7 and s. 15." The appeal court asked the appellants about how the courts could remedy a systemic problem as opposed to a single law or pol- icy that are the traditional targets of Charter challenges. Although the issues are com- plex, the remedies could be as simple as telling the governments to take whatever action they see fit, says Rosenthal. "We can't be saying this law or that law is un- constitutional. There's no one law that can be unconstitutional; it's the cumulative or systemic effect of all of them that we say is un- constitutional because it's leaving these people in the cold." He adds: "One of the things we claim and have evidence about is that being homeless reduces your life expectancy in and of itself. Compared to other poor people, homeless people have low life expectancy. . . . So say in a situation where a num- ber of laws act systemically to create a situation where a group of people have reduced life ex- pectancy, then that violates s. 7 and s. 15 of the Charter." Tracy Heffernan of the Ad- vocacy Centre for Tenants On- tario, the organization leading the Charter application, says the provincial and federal govern- ments have reduced funding for affordable housing, fallen behind on building co-operative housing, and curtailed rent control. "And more recently, the federal govern- ment has said we are no longer going to provide money towards these co-ops, which means that if this actually happens . . . we're go- ing to lose 100,000 subsidized co- op units in Ontario alone." For their part, the govern- ments argued the court was cor- rect to strike the application. "As the court below concluded, there is no case in the s. 7 jurisprudence that has found there to be a cause of action based on a claim to a positive right to economic ben- efits," the attorney general of Can- ada said in its factum. Section 7 "does not provide a positive right to affordable, ad- equate, accessible housing." Two of the eight interveners in the case, Amnesty International Canada and the ESCR-Net Co- alition, argued the court should consider international treaties Canada has ratified in deciding what its Charter values cover. Ratifying treaties with sections on affordable housing is "indica- tive of the values protected by the Charter," says Molly Reynolds of Torys LLP, who represented the organizations. At the lower court, Lederer dismissed international treaties as irrelevant instead of providing an analysis of what they could indicate, she adds. In his ruling last year, Lederer found governments didn't have an obligation to create policies and laws that would reduce or eliminate homelessness. "As it presently stands, there can be no positive obligation on Canada and Ontario to act to put in place programs that are direct- ed to overcoming concerns for the 'life, liberty and security of the person,'" he wrote. "In this con- text, there is no fundamental right to affordable, adequate, and acces- sible housing provided through s. 7 of the Charter." He added: "Who could not be sympathetic to any proper effort to confront the issue of inadequate housing in all Canadian commu- nities? The question is whether the courtroom is the proper place to resolve the issues involved. It is not; at least as it is being attempted on the application." But the David Asper Centre for Constitutional Rights, another intervener in the case, submitted that "the relief sought is justiciable and within the jurisdiction of this honourable court." "The attorney general for Canada writes that the relief requested is that Canada elimi- nates 'inadequate housing' and is therefore not justiciable or judicially manageable. The centre will submit that this misconstrues the applicant's remedial request and that an order requiring the government to develop a housing policy, as distinct from one eliminating inadequate housing, is within the broad remedial discretion of provincial superior courts," it said in its factum. LT NEWS In The Canadian Law of Toxic Torts, leading experts Lynda M. 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