Right to Housing Legislation in Canada
An overview of the right to housing legislation in Canada
The National Housing Strategy (NHS), introduced on November 22, 2017, promised rights-based legislation to implement the government’s commitment to the progressive implementation of the right to housing, as guaranteed in the International Covenant on Economic, Social and Cultural Rights. That promised legislation, the National Housing Strategy Act, received Royal Assent on June 21, 2019.
The NHS Act brings Canada in line with international standards, which require the right to housing to be ensured not only through policies and programs but also through independent monitoring and access to hearings and effective remedies. It does so through a unique model that does not rely on courts but on alternative, accessible and participatory mechanisms that give a meaningful voice and role to rights-holders and provide for investigation, hearings and recommendations to ensure compliance with the commitment to the progressive realization of the right to housing.
This legislation affirms that the government’s housing policy is based on the recognition of the right to housing as it is understood in international human rights law. This means recognizing that all people have the “right to live somewhere in security, peace and dignity,” according to the United Nations. It requires the government to implement reasonable policies and programs to ensure the right to housing for all within the shortest possible timeframe. It also means priority must be given to vulnerable groups and those in greatest need of housing.
After the NHS Act was first introduced in late 2017, on August 14, 2018, advocates released an open letter to Prime Minister Justin Trudeau, signed by over 170 organizations and prominent Canadians (totaling 1,100 signatories), urging him to enshrine the right to housing in the Act. On April 8, 2019 the NHS Act was introduced in the Budget Implementation Act, 2019 (Bill C-97). The legislation, as first introduced, affirmed a commitment to the progressive realization of the right to housing as recognized under international human rights law, requires that future governments adopt and maintain a national housing strategy, and established a National Housing Council and federal Housing Advocate. It lacked, however, any meaningful accountability for the commitment to the right to housing and didn’t provide for hearings.
The Right to Housing Campaign—building off of over 30 years of grassroots advocacy, engagement with UN human rights bodies and court challenges proposed critical amendments pressing for a stronger commitment to the right to housing and the addition of appropriate rights-based accountability mechanisms, including access to hearings into important systemic issues. Our proposed changes were eventually supported in large part by the government and the government introduced amendments to clarify and enhance the rights-based approach.
Amendments to the Act were tabled on May 31, 2019 in the House of Commons to clarify and enhance the rights-based approach, reflecting many of the recommendations made by a broad range of civil society organizations, housing experts, as well as by United Nations human rights bodies.
After Bill C-97 received Royal Assent on June 21, 2019, the National Right to Housing Network formed to mobilize a broad-based, grassroots civil society network to fully realize the right to housing in Canada.
The NHS Act recognizes housing as a “fundamental human right” as it is defined under international human rights law. The right to housing was recognized in the 1948 Universal Declaration of Human Rights. Canada formally agreed to comply with the right to housing under international human rights law in 1976 when it ratified the International Covenant on Economic, Social and Cultural Rights.
The right to housing under international human rights law is understood as the right to a safe and secure home in which to live in security, peace and dignity, meeting standards of adequacy, including standards relating to legal security of tenure, affordability, habitability, availability of services, accessibility, location and culture.
The NHS Act does not entrench the right to housing as an individual right that can be enforced in courts, but rather commits the government to the progressive realization of the right to housing through a rights-based housing strategy and ensures meaningful participation of rights-holders in identifying systemic issues and appropriate remedies. The individual right to access housing necessary for dignity and security is also recognized under international law and in other jurisdictions as necessary to the right to life, which is guaranteed under the Canadian Charter of Rights and Freedoms, along with the right to security of the person. Homelessness and inadequate housing is also often caused by discrimination against particular groups and by failures of governments to address the particular needs and circumstances of groups such as Indigenous women and girls, women escaping violence, persons with disabilities (including dependency on alcohol or drugs); persons needing support for independent living), young people, racialized groups, LGBTQ2I and others. Violations of the right to housing should also, therefore, be challenged in courts and before tribunals as violations of Charter rights and of rights under human rights legislation. The NHS Act does not in any way replace courts or human rights tribunals as the appropriate for a in which to enforce our human rights. Rather, it provides an important parallel means to claim the right to housing, to hold governments accountable to their obligations under international human rights law, and to address systemic issues that courts in Canada have failed to address.
The right to housing under international human rights law does not mean that the government must provide everyone with housing. It recognizes that all people have the “right to live somewhere in security, peace and dignity” and that governments must implement reasonable policies and programs which will ensure that everyone has access to adequate housing by one means or another, as soon as this can be achieved within available resources. The NHS Act affirms that that this commitment must guide housing policy and programs, prioritizing those in the greatest need.
Under international human rights law, the right to housing means that governments must, among other things:
- Refrain from actions that violate the right to housing, such as criminalizing those who are homeless or discriminating against particular groups;
- Protect the right to housing through appropriate legislation and regulation;
- Implement housing policies and programs focused on those most in need as well as on progressively ensuring access to housing for all;
- Prohibit all forms of discrimination and address systemic barriers to access to housing facing women, racialized groups, persons with disabilities, young people, LGBTQ, elderly people, and other groups; and
- Fulfil the right to housing over time through rights-based housing strategies and programs.
- Protect affordable housing and ensure security of tenure, including protection from unreasonable rent increases
- Ensure that any upgrading of existing housing or new developments are administered with meaningful participation of existing residents in their design and planning, ensuring that they are able to remain in, or return to their communities and are ensured access to adequate housing during any necessary relocation.
Some of these aspects of the right to housing are already protected in provincial, territorial or federal legislation in Canada. The NHS Act does not affect existing protections of security of tenure, non-discrimination property standards or planning law, though it is hoped that all levels of government may be encouraged to improve existing laws and regulations so as to conform with international human rights.
International human rights law recognizes that governments in most countries cannot be expected to ensure that everyone has access to adequate housing immediately. It recognizes that inadequate housing and homelessness are complex, structural and systemic problems that must be addressed and solved over time, through comprehensive strategies with achievable goals and timelines, engaging multiple levels of government and other actors. International law also requires that priority be given to vulnerable groups and those in greatest need of housing. The National Housing Strategy Act is founded on the government’s explicit policy commitment to this understanding.
It requires that the housing strategy establish national goals, timelines and outcomes relating to housing and homelessness consistent with the commitment to the progressive realization of the right to housing; ensures that housing barriers or systemic issues related to access to housing will be identified through the Housing Advocate, National Housing Council and Review Panel by engaging meaningfully with affected groups and communities; and requires that these issues will be addressed in an ongoing process to fully implement housing as a human right.
The NHS Act also requires that the needs of those in the most desperate circumstances of homelessness or housing need are prioritized. Across Canada, an estimated 235,000 people experience homelessness each year, 35,000 experience homelessness on any given night.
The legislation will ensure that the housing strategy is responsive to both the immediate needs of those who are homeless and to the structural causes of homelessness and inadequate housing as well as to emerging issues and challenges moving forward.
The role of the Housing Advocate is to promote and ensure compliance with the government’s policy commitment to the progressive realization of the right to housing through a number of explicit mechanisms and mandates. The Advocate will assess and advise the Federal Government, through the designated Minister, on the implementation of the housing policy; initiate inquiries into incidents or conditions in a community, institution, industry or economic sector; and monitor progress in meeting goals and a timeline.
Most importantly, the Housing Advocate will ensure a meaningful voice and role for affected individuals and communities. The Advocate will receive submissions identifying systemic housing issues and measures necessary for compliance with the right to housing, conduct investigations, adopt opinions and make concrete recommendations about how to address identified problems. Recommendations with respect to actions to be taken by the federal government will be submitted to the designated Minister, who must provide a response within 120 days.
Where appropriate, the Advocate can also refer systemic housing issues to a three-person review panel, which will hold hearings, issue opinions and make recommendations to the Minister about what measures are required for compliance with the policy commitment to the right to housing. The members of the panel will be chosen based on expertise or experience in human rights and housing matters as well as lived experience of housing need or homelessness and members of vulnerable groups. Hearings will be public and conducted in an open and accessible manner and the Housing Advocate will work with communities that are affected by the issue being considered in presenting the issue to the panel.
Through these processes, the Housing Advocate will be able to ensure that information is brought to light about systemic issues faced by vulnerable groups, as well as their lived experience. The Advocate will also draw on other experts and the results of investigations and research in order to put forward practical, evidence-based recommendations to deal with specific problems as they emerge.
The rights-based approach put in place through the Housing Advocate is oriented around solving problems, making policies and programs more effective and responsive, engaging meaningfully with those affected and working collaboratively with multiple stakeholders.
The National Housing Council will further the National Housing Strategy and the right to housing by monitoring progress and effectiveness of the National Housing Strategy and providing advice to the federal Minister.
The council will include two co-chairpersons, the Housing Advocate, the Deputy Minister of housing, the Deputy Minister of Indigenous Services, and the President of the Canadian Mortgage and Housing Corporation. The appointment of other members by the federal Minister must consider representation of vulnerable groups, people with lived experience of housing need as well as homelessness. Three of the members of the Housing Council will also be appointed as members of the review panels convened to hold hearings into systemic housing issues identified by the Housing Advocate.
This puts affected people into a position where they will not only be heard but will be actively involved in critical decisions, in monitoring compliance with the right to housing, and able to build momentum toward the progressive realization of the right to housing. The Council should make certain that all housing policies and programs are consistent with the commitment to the progressive realization of the right to housing, building a new human rights culture into housing policy and ensuring that rights-based approaches are embedded in all programs.
The review panel will only hear selected systemic issues regarding the progressive realization of the right to housing as referred by the Housing Advocate. It will not hear individual complaints about housing rights. It will hold hearings that offer the public, particularly members of affected communities and groups with expertise and experience in human rights and housing, an opportunity to participate and contribute effectively to ensuring that housing policy and programs are consistent with the recognition of housing as a human right.
After a hearing into a particular issue is completed, the panel will prepare a report for the federal Minister that states the panel’s conclusions and its recommendations regarding the measures that must be taken to ensure compliance with the government’s commitment to the right to housing. The Minister must then provide a response within 90 days, outlining what will be done, which then must be tabled in the Senate and House of Commons.
This innovative approach to rights claiming is designed to be efficient and targeted to the most important systemic issues, giving a meaningful voice to rights holders in identifying the most critical issues and the appropriate responses.
As noted earlier, the NHS Act does not entrench the right to housing as an individual right that can be enforced in courts, but rather commits the government to the progressive realization of the right to housing through a rights-based housing strategy and ensures meaningful participation of rights-holders in identifying systemic issues and appropriate remedies.
The Advocate can also receive submissions from affected groups identifying systemic issues. These issues will be investigated by the Housing Advocate, who will either make findings and recommendations directly, or, where appropriate, refer the issue to the Review Panel for a public hearing. Although the Review panel will not hear individual complaints, issues that are referred to it will lead to hearings where the public, particularly members of affected communities and groups with expertise and experience in human rights and housing, will have an opportunity to participate and contribute.
The rights-based approach helps people in several important ways:
- It requires the federal government to maintain a National Housing Strategy based on the recognition of housing as a human right. This prevents housing issues from being ignored and ensures a coordinated and comprehensive approach.
- It empowers those affected by homelessness and inadequate housing as rights holders with a right to participate in a strategy to realize their rights, rather than as persons in need of charity.
- It commits the government to implement reasonable policies and programs aimed at ensuring the right to housing for all. This commitment will be subject to ongoing, effective monitoring and accountability and engagement with affected communities.
- It means priority in housing policy must be given to vulnerable groups and those in greatest need of housing, recognizing homelessness as a violation of human rights and committing to addressing it as a human rights violation, eliminating it in the shortest possible time.
- It gives affected groups a voice and a role in the policy process and a means to get action in response to their circumstances.
- It creates accountability and independent oversight for the National Housing Strategy so that it will be constantly adjusted and altered to be made more effective and responsive to emerging issues.
- It changes the culture and political discourse around housing, because the government has now accepted in law that housing is a fundamental human right and committed itself to complying with its obligations under international human rights. It provides a basis for participatory and evidence-based decision-making that will make programs and policies more effective at addressing housing need.
International human rights require the right to housing to be ensured not only through policies and programs but also through independent monitoring and access to hearings and effective remedies. The NHS Act, if properly implemented, achieves this through a unique model that relies on accessible and participatory mechanisms that give a meaningful voice and role to rights-holders and provide for investigation, hearings and recommendations to ensure compliance with the commitment to the progressive realization of the right to housing.
This legislation affirms that the government’s housing policy is based on the recognition of the right to housing as it is understood in international human rights law.
There are, however, many other elements of Canada’s obligations with respect to the right to housing under international law that are not covered by the NHS Act. Protections from evictions, rent increases, health and safety requirements, from development-based displacement, discrimination, inclusive zoning and planning and many other components of the right to housing fall under other laws, many of them provincial or municipal. Many of these laws need to be improved in order to comply with the international law. It is hoped that the NHS Act and the procedures created by it will encourage many other initiatives and changes to other areas of law and policy to comply with the right to housing.
International human rights law does not treat the right to housing as a mere policy goal or aspiration. It imposes serious obligations on governments to move toward the fulfillment of the right to housing “by all appropriate means” and applying “the maximum of available resources.” In other words, it requires governments to address inadequate housing and homelessness not just as policy issues but as human rights violations requiring urgent and concerted action. The Act is potentially transformative because it affirms this understanding of the right to housing based on international human rights.
Progressive realization has been interpreted in international human rights law as requiring that “reasonable” measures must be adopted, recognizing that there may be a variety of policy options that are available. It requires that reasonable goals and timelines be set out for achieving identified goals for the progressive realization of the right to housing.
The legislation is a practical, concrete approach that recognizes that the key to solving the housing crisis in Canada is to recognize it as a human rights crisis, give a meaningful voice to rights holders, engage with multiple stakeholders, identify and address systemic problems and develop practical solutions. This should occur through the National Housing Council, the submissions and hearings process through the Federal Housing Advocate and through many other rights-based processes in a range of housing and program areas.
The legislation requires ongoing inclusion and engagement of civil society, stakeholders, vulnerable groups and persons with lived experience of housing need, as well as those with lived experience of homelessness in all aspects of the housing strategy, with diverse membership on the National Housing Council and participation of persons with lived experience both as members of the panel and as petitioners in hearings into systemic issues.
It ensures that the circumstances of vulnerable groups will be brought to light through effective participation and prioritized in policy responses. At the same time, it will ensure that policies and programs adequately address broader systemic issues that affect housing markets that make housing unaffordable for low- and middle-income people.
The legislation will also ensure rights-based participation by:
- Hearing from those who are affected by the housing crisis, to better understand the problems they are facing;
- Ensuring their meaningful engagement with decision-makers in both the public and private sectors, facilitated by the Housing Advocate.
This participatory rights-based approach will take good faith on all sides. It will be based on the right to housing as a shared value and commitment in Canada that requires active engagement by civil society, different levels of government, tenants, housing providers and other stakeholders.
This legislation is a statement of a federal government housing policy based on the commitment to the right to housing. It establishes mechanisms to promote that policy and to hold the government accountable to it. It does not encroach on any areas of provincial/territorial jurisdiction in relation to housing.
The legislation responds to the need for more effective federal leadership in promoting compliance with the commitment to the right to housing under international human rights law.
It offers a rights-based process that provinces, territories and local government should affirm and join, since the right to housing under international human rights law also applies to provinces, territories and municipalities in Canada. We anticipate that the federal commitment to the right to housing will be translated in federal negotiations and expectations in future agreements under the National Housing Strategy and that, in addition, provinces, territories and municipalities will create and adopt similar approaches through which to be held accountable to their obligations with respect to the right to housing.
There is no legal requirement in the legislation that provinces, territories or municipalities respond to the recommendations from the Federal Housing Advocate or the Review Panel. It is hoped, however, that these recommendations will be considered by all levels of government, and that provinces and territories will choose to participate in a meaningful, multi-stakeholder engagement for the progressive realization of the right to housing, in a collaborative effort across jurisdictions. It is also expected that the rights-based model implemented by this legislation will give rise to similar initiatives and legislation in provinces, territories and municipalities.