In a recent ABlawg post, Joshua Sealy-Harrington argues that the Ontario Court of Appeal two-justice majority decision in Tanudjaja v Canada (Attorney General), 2014 ONCA 852 (CA) is less compelling than Feldman JA’s dissent–which would have recognized section 7 of the Charter of Rights and Freedoms as granting positive rights. Sealy-Harrington points out that the wording of section 7 clearly anticipates the creation of positive rights, when viewed in comparison, for example, with the wording of section 9 (Section 7 gives us “the right to life, liberty and security of the person” as well as the right “not to be deprived thereof;” section 9 grants only the rights not to be subject to certain government action). The plaintiffs in the case, all Ontario residents struggling with homelessness or extremely precarious housing, sought declarations that the Ontario government was violating their Charter rights by failing to provide adequate housing. While the majority dismissed the case as too vague and political, Sealy-Harrington argues that the issue at bar was no more political or vague than many other questions courts routinely consider. This issue of whether we have a positive right to a minimum standard of housing is highly relevant in Alberta, where social housing is at such a premium as to be virtually inaccessible, and the rental vacancy rate is so low that affordable housing has all but ceased to exist. Sealy-Harrington’s post may be of interest to housing law practitioners across the province, and is available here. If the Supreme Court elects to hear the appeal which has been filed, it will be a case to watch.
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