Challenging Canada’s Denial Of Health Care: A Path To Housing Rights?

Ontario’s Superior Court has issued a decision in a case with significant implications for the right to adequate housing. The case involves Nell Toussaint, who has been challenging the Canadian government’s interpretation of the Canadian Charter of Rights and Freedoms (The Charter) since 2010. Judge J. Perrell, who heard the case, agreed with Toussaint and rejected all of the defenses advanced by the Government of Canada.

A post at the National Right To Housing Network describes Toussaint’s case and Perrell’s decision¹. There are several reasons why the case and the decision are important to claims for the right to adequate housing. Here is one:

Toussaint’s case involved health services and centred on The Charter’s commitments to security of the person and equality rights. Toussaint (and 10 intervenors) argued successfully that deprivations of access to health care were grounds for the courts to consider violations of The Charter.

Perrell’s decision opens the door for claims under The Charter that involve housing and homelessness. Until now, the courts have refused to consider such claims because The Charter doesn’t yet explicitly include the right to housing². With the Toussaint case, the courts will need to consider claims from people who are deprived of access to housing.

Following Perrell’s decision, one might expect a court challenge about access to housing as a human right in short order. But, Martha Jackman and Bruce Porter, who wrote the post, do not think that Nell Toussaint’s case will necessarily lead to more litigation. Instead, they hope that Canada’s governments will be encouraged to be more responsive to recommendations to reform the systems and structures that perpetuate homelessness and precarious housing.

This story includes a legal argument that links access to basic needs (such as housing, food and health care) with human rights (even when they are not explicitly included in Charters or declarations). It is obviously relevant in Canada, but should also be of interest to other countries with a common law tradition.

You can read more at the National Right To Housing Network: The Housing Tell: Toussaint’s Ground-Breaking Victory For Human Rights In Canada

1. The posts, which are published under the banner The Housing Tell, present ‘noteworthy perspectives, solutions, and ideas from across Canada’s right to housing movement.’
2. Many are aware that Canada explicitly linked housing rights to international housing rights in 2019. This does not provide the full force of Canadian law which comes from inclusion in The Charter.