Recovering from the Inequality Virus by Linking Rights: Gimme Shelter or Protection for Lack Thereof

Abstract

The right to shelter has seen a markedly turbulent evolution in the jurisprudence. On the one hand, there is doctrinal optimism as to the possibilities left open by Gosselin and Adams. On the other hand, there is judicial confusion on whether such a right exists and how such a right might look. Trial and appellate courts in British Columbia and Ontario continue to oscillate between reliance on section 7 guarantees to enforce negative non-interference rights in striking down anti-encampment bylaws, with a reticence to heed any ground on equality claims advanced based on section 15 or similar provincial rights legislation. The judicial oscillation has led to inconsistency across provincial borders on what the Charter guarantees Canadians.

This article clarifies what such a right might look like and why it is both legally defensible and morally justified. I aim to draw a coherent picture of the underlying values of dignity and non-domination that animate considerations relating to housing and homelessness. To arrive at the argument, I survey extant case law, tracing the evolution of section 7 Charter cases and propose an argument based on a substantive account of equality and analogous grounds. The paper draws on Canada’s international law obligations, including its domestically ratified commitments in the National Housing Strategy Act, provincial and federal case law, as well as relevant scholarship to argue for the necessity of linking rights within the constitutional framework where it concerns non-commercial human rights of a socioeconomic nature, such as adequate shelter and housing. These varied sources consider human rights as interrelated, giving renewed significance to the interpretation and merits of linking Charter rights. I use the Quebec COVID-19 Curfew Order as a case study to provide a glimpse of the socially constructed dimensions of homelessness.