The Human Right to Adequate Housing and the Canadian Charter: A Case Comment on Tanudjaja v. Canada (Attorney General).

Abstract

The case of Tanudjaja v. Attorney General, represents an unprecedented opportunity for Canadian legal scholars to examine the right to adequate housing in the Canadian human rights context. It is, thus far, the only legal appeal that broaches directly the right to adequate housing under Canadian law, basing its arguments on two key elements contained in Charter of Rights and Freedoms: section 7 & 15. Moreover, the case represents an attempt, by the claimant, to bolster a Charter claim with reference to housing rights found in international treaties and other unconventional sources of international human right’s law. For the Canadian housing rights scholar, therefore, this decision, though ultimately quite negative in its conclusions, demonstrates the need for a better understanding of the intersection between international public law instruments concerned with human rights, on the one hand, and the Charter, on the other. It does not, however, adequately portray the full extent of the former’s influence on the latter, as Justice Lederer of the Ontario Superior Court, failed to address the importance of international legal doctrine with respect to the interpretation of positive social rights in the Canadian legal context. In particular, he ignored the growing body of Charter related cases and historical precedents in Canadian jurisprudence that shed light on the complex relationship between fundamental human rights enshrined in various international legal documents and the recognized positive obligations they impose on the government of Canada to implement them, under such long established treaties as the Covenant of Economic Social and Cultural Rights and the United Nations Declaration of Human Rights (both of which are binding on the government of Canada). In this comment, the author makes a critique of the analysis undertaken by Judge Lederer (or lack of) with regards to the relevance of international human rights norms in the context of Tanudaja, by making reference to past Charter jurisprudence involving the impact of these norms on Canadian human rights claims. Specifically, in section II he provides an overview of the case law with respect to the interface of Canadian and International public law, which will place particular emphasis on those past cases that invoked international human rights law in their interpretation of the Charter. He then contrasts, in section III, Lederer J’s approach in Tanudjaja to previous cases that examined the implications of international human right norms for section 7 of the Charter. Finally, in part two of the same section, he analyses the Section 15 jurisprudence which considered the implications of international human rights norms for the interpretation of the Charter’s equality rights, with the goal of drawing comparisons with Lederer’s approach in Tanudjaja.