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Joanna Baron: Establishing a right to housing is a bad idea


Canada’s housing and mental health crisis is obvious to anyone who has seen the sprawling tent cities that have mushroomed in cities across the country. These illegal encampments have been countenanced with controversial enforcement decisions like the Toronto Police Services’ 2021 decision to send in a small army to clear Trinity Bellwoods Park. In that instance, police offered all encampment residents the option to relocate to a hotel shelter; still, homelessness advocates argued that the lack of adequate safety in shelters made it cruel to forcibly clear encampments.

Many residents, meanwhile, support this kind of enforcement. The camps encroach on their ability to access taxpayer-funded public green spaces and for children to safely enjoy playgrounds. Given the prevalence of mental health disorders and substance abuse in the encampments, they present serious threats to community safety. Propane tanks and BBQs are common, creating fire hazards. The hygiene conditions tend to be atrocious.

Not surprisingly, these disputes have wound up in the courts, where a series of questionable legal precedents are being set that threaten to expand the Charter’s ambit to include more so-called “positive rights”—rights that create positive obligations upon the government to act rather than the so-called “negative rights” that the Charter’s drafters had envisioned, which instead require governments to avoid acting in ways the infringe our freedom.

The Coalition for Justice and Human Rights in Alberta is the latest group attempting to create such positive rights where they don’t belong. The coalition has commenced a legal action against the City of Edmonton, claiming the city’s continual displacement of individuals in encampments has placed vulnerable communities in dangerous situations. They say that Edmonton, “despite being aware of the inadequate number of safe and accessible shelter spaces available to a rapidly increasing unhoused population, … continues to displace and destroy encampments with nowhere for people to go”. They argue that this enforcement is not only dangerous but violates several Charter rights, including s. 7 (life, liberty and security of the person), s. 12 (cruel and unusual punishment), and s. 15 (equality).

While the claim is immediately seeking an injunction against forcibly clearing encampments, the underlying issue is the government’s ability to adequately provide shelter beds, they say. While the Coalition does not deny that the police have the jurisdiction to clear illegal encampments from public spaces, they submit that doing so within the context of a shelter shortage is a violation of constitutional rights.

This type of argument succeeded in January when a judge of the Ontario Superior Court found Waterloo Region’s decision to clear illegal encampments violated a “right to shelter” which he had deciphered from previous section 7 jurisprudence. Citing a line of case law that has developed over the last few years in B.C., Justice Valente held that there was a right “to shelter oneself when the number of homeless persons exceed the number of available and accessible indoor shelter spaces within a given jurisdiction.” The idea seems to be that although there is no positive right to shelter, when there aren’t enough beds in homeless shelters or public housing available the City is interfering with the security of the person by making people pack up their tents since that creates a risk to bodily integrity.

The reason the ruling was framed in this roundabout way—as a negative right not to be put at greater risk of physical harm by cities who make you move your tent rather than a positive right to shelter—is because there is already clear legal precedent that a positive right to shelter does not exist. But it is merely a positive right claim in disguise. In the 2014 decision in Tanudjaja v Canada, the Ontario Court of Appeal found that a claim by a coalition of applicants that actions and inaction on the part of Canada and Ontario resulted in homelessness and inadequate housing was not even justiciable. The Court underscored that the government had no positive legal obligation to provide equitable housing and that the dispute was for policymakers to resolve.

The proscription against finding positive legal obligations under the Charter was also emphasized in 2002’s Gosselin v Quebec, where the Supreme Court of Canada rejected an argument that s. 7 of the Charter requires the provision of a minimum level of social assistance adequate to meet basic needs. There are good reasons for this. The judiciary is not democratically accountable and not representative of the local community or political spectrum. It may not levy taxes nor formulate budgets. The notion of a court dictating to governments the precise number of shelter beds they must provide in order to avoid running afoul of the Constitution effectively inserts the judiciary within the dynamic activity of governing

Asserting a constitutionally protected right to shelter is not only doctrinally questionable, it’s also impractical. In New York City, the City has had a “right to shelter” policy since the 1980s. The policy mandates the City to provide a bed for anyone who requests one. But it hasn’t worked. That policy is currently beleaguered due to a high influx of migrants exceeding the city’s shelter capacities. The City has apparently decided that “right to shelter” or not, there are limits to how many people taxpayers can afford to house. 

New York’s current shelter space crisis exemplifies why it is governments and not the judiciary that can rightfully commit itself to a policy as onerous as a “right to shelter”: it is the City that must assess whether to slash other social programs, request federal funding, raise taxes, or decide the policy is simply no longer viable. None of which are powers judges possess. The Charter is a classical liberal document that grants individuals rights against the state: to refrain from interfering with an individual’s right to express herself, move about, exercise free conscience, and be free from discrimination. Judges are well positioned to play referee when government actions wade into private life without sufficient justification. They are very poorly positioned to decide how best to resolve complex policy debates.

Trevor Tombe: Labour disruptions are on the rise and inflation is to blame


Labour disruptions are on the rise.

Recent strikes have closed Metro stores and B.C. ports. Universities, Ontario construction sites, Vancouver hotels, and Canada’s largest cemetery have seen the same. Work stoppages at Air Canada and WestJet, which would have had massive spillover effects throughout the economy, were only narrowly avoided. Even Federal public servants went on strike to demand higher pay and flexible work arrangements. 

These are not isolated incidents.

Last year, over 2.1 million work days were lost to labour disputes—almost double the amount in 2019 before the pandemic hit and the highest since 2009. This year, we’re on track for even more. From January to June, we’ve already experienced over 1.6 million lost work days. That’s more disruption in the first half of any year since 2002.

And there’s more to come. The United Auto Workers, along with their Canadian counterparts in Unifor, for example, have voted overwhelmingly in favour of a strike if a deal isn’t reached soon.

This may not be too surprising. Inflation rose last year to highs not seen since the 1980s and did so faster than at any point since the 1950s. Rising prices mean wages and salaries can buy less than before, so the real value of pay is down. 

And while inflation has eased considerably, affordability challenges remain. In recent analysis for The Hub, I showed that price levels are over six percent higher than they would have been had inflation remained on target. 

Workers are naturally going to push hard to recover this lost purchasing power. With tight labour markets, they often have the power to demand just that.

Indeed, we’re already seeing wage settlements agreed to in recent collective agreements rise sharply. Of the 26 major settlements reached in the first half of this year, the average annual wage increase was nearly three percent per year. That’s double the roughly 1.5 percent annual increases normally agreed to in the years prior to the pandemic, but still below inflation. 

We should expect this trend to continue. Business leaders surveyed by the Bank of Canada expect wage increases over the coming year to average roughly 4.5 percent.

But as more contracts come due while broader economic conditions weaken, it may become increasingly difficult for many employers to meet rising wage demands. This could lead to more strikes, work stoppages, and disruptions throughout the economy.

We’ve seen this before. 

Historically, the frequency and scale of work stoppages tracked very closely with overall inflation. 

Starting in the late 1960s, inflation gradually rose. By the 1970s, it exceeded ten percent at some points and remained uncomfortably and persistently high until the early 1990s. Strikes and other labour disputes dramatically increased. From less than half a million days per quarter lost to work stoppages in the early 1960s, disruptions rose sharply to over four million days per quarter by 1974. 

Such disruptions took a significant economic toll. In 1976, there were nearly 12 million days of work lost. That’s possibly around 80 to 90 million hours where workers earned no wages and firms produced no output—equivalent to nearly as much as two to three percent of all hours worked in the entire economy.

Today’s situation is less bleak, with disruptions accounting for approximately 0.5 percent of total work hours. But even a modest increase could be a drag on Canada’s already weak economic growth.

There’s some reason for optimism, though. The rise in strike action in the 1970s and early 1980s was due to more than just rising inflation. It was also due to uncertainty around what future inflation would be. Some, such as former Bank of Canada governor David Dodge, have argued that many wage demands at the time were made as insurance against unexpected increases in inflation over the life of the employment contract. Uncertainty itself was therefore a driver of rising wage demands and resulting strike actions.

Today, things are different. The Bank of Canada—along with central banks around the world—is aggressively moving to get inflation back to a clearly defined target of two percent. Some may not believe that they will succeed, of course, but overall inflation expectations today are far better anchored than they were a half-century ago. 

Over the next five years, Canadian consumers expect inflation to average roughly three percent per year. And businesses expect almost as much. With less uncertainty around future inflation, it may be easier to negotiate and agree to more gradual adjustments to worker pay and conditions. 

If the Bank of Canada can successfully and sustainably return to normal rates of inflation soon, then its credibility may improve and bargaining may become easier. 

But if it cannot, then turbulent times for both employers and workers alike may be ahead.