On March 28, 2014, the Women’s Legal Education and Action Fund (LEAF) presented its arguments for its motion for leave to intervene in the appeal of Tanudjaja v. Attorney General (Canada).
“Social and economic rights are integral to women’s equality. From LEAF’s perspective, the Tanudjaja case will have potentially significant impacts on the role of the courts and the Charter on the development of social policy and the delivery of social programs.” Kim Stanton, LEAF Legal Director
Why this is important
In May 2010, an application was started in the Ontario Superior Court (the “OSC”) by four homeless individuals and a public interest group called the Centre for Equality Rights on Accommodation. It named the Attorneys General of Ontario and Canada (the “AGs”) as respondents and sought to challenge the “changes to legislation, policies, programs and services, which have resulted in homelessness and inadequate housing”.
In their Application, the plaintiffs sought a declaration that the governments of Canada and Ontario have obligations to implement effective national and provincial strategies to reduce and eventually eliminate homelessness and inadequate housing. Further, the plaintiffs sought a declaration that the failure to implement such strategies violates the Applicants’ rights to life, liberty and security of the person contrary to s. 7 of the Canadian Charter of Rights and Freedoms (Charter), and their right to equality contrary to s.15 of the Charter.
As remedies, the Applicants sought: a declaration that the Applicants’ s.7 and s.15 rights had been infringed; an order that Canada and Ontario must implement effective strategies to reduce and eliminate homelessness and inadequate housing in consultation with those affected by the policies; and that the court should retain a supervisory function in the implementation of the strategies.
The application asserted that the governments’ “decisions, programs, actions and failures to act” created conditions that fostered homelessness and that the governments’ failure to implement effective strategies to address homelessness violated the s.7 and s.15 Charter rights of the Applicants and were not saved by s.1.
In November 2011, the Applicants served their supporting record, which was over 9000 pages in length and included affidavits of the Applicants and expert witnesses.
In June 2012, two years after the application was filed and over six months after the record was filed, the Attorneys General filed a motion to strike the application because, they argued, it failed to disclose a cause of action because the Charter does not impose positive obligations on the state. The motion to strike was argued in May 2013 and on September 6, 2013, Justice Lederer granted the motion and struck the application. On October 4, 2013, the Applicants filed an appeal of the decision of Justice Lederer in the Ontario Court of Appeal.
Justice Lederer found that the Charter does not impose positive obligations on governments to address the effects of homelessness where the effects contravene Charter-protected rights, and that homelessness is not an analogous ground for the purposes of s.15 interpretation.
LEAF believes that these conclusions are antithetical to our view of substantive equality and the broad role of the Charter to remedy government action that perpetuates inequalities.
LEAF’S Plan to Stand Up for Women
Before the Court of Appeal, LEAF’s arguments are focused on the following:
- The Court’s interpretation of s.15(1) of the Charter, specifically the issue of homelessness not being an analogous ground, the scope for positive obligations, how to address complex forms of inequality, and how such interpretations affect the determination that it was ‘plain and obvious’ that no such Charter rights exist and the application couldn’t succeed.
- The Court’s need to remain open to novel arguments in Charter applications and the preferred approach to applying the test for motions to strike in that context. Applications such as this require a full hearing on the merits rather than being struck on a preliminary motion.
LEAF knows that access to affordable housing plays a critical role in the lives of elderly women (20% live in poverty), female sole parents (33% of whom live in poverty), women who face discrimination in accessing rental housing, and women leaving situations of domestic violence (for whom having somewhere to live with their children is often a critical deciding factor in leaving the violent home).
Women suffer disproportionately when they are homeless, and so do their children. Sexual abuse is a major cause, as well as a consequence, of homelessness, especially among young women. Women may offer sex in exchange for a place to sleep and often children are taken by child protection agencies because of inadequate housing. Statistics Canada studied one day in April 2010 and found that 426 women were turned away from emergency shelters for abused women that day, most often because the shelter was full.
LEAF has called for a national housing strategy since a comprehensive approach is crucial to address the disproportionate representation of particular groups among those living in poverty or without adequate housing, including Indigenous people, people with disabilities, sole parents (mostly women), and immigrants and refugees. LEAF is adamant that homelessness and poverty must be understood as intersecting with other grounds of discrimination, including gender and race.
LEAF believes that its breadth of experience in respect of Charter litigation will assist the Court in adjudicating the motion to strike test in the context of novel Charter claims.
Since 1985, LEAF has assisted the courts in numerous cases with the interpretation and application of equality rights under the Canadian Charter of Rights and Freedoms. LEAF’s mandate has also driven its active involvement in matters of public policy and law, particularly with respect to issues involving human rights and discrimination. Please support LEAF’s work and donate today at leaf.ca