Court File No.: C57714

COURT OF APPEAL FOR ONTARIO

BETWEEN:

JENNIFER TANUDJAJA, JANICE ARSENAULT, ANSAR MAHMOOD , BRIAN DUBOURDIEU, CENTRE FOR EQUALITY RIGHTS IN

ACCOMMODATION Applicants

(Appellants) -and-

ATTORNEY GENERAL OF CANADA and

ATTORNEY GENERAL OF ONTARIO Respondents

(Respondents on Appeal)

FACTUM OF THE INTERVENERS: CHARTER COMMITTEE COALIT ION

(Charter Committee on Poverty Issues, Pivot Legal Society, Justice for Girls)

On Appeal from the Ontario Superior Court of Justice

(To be heard May 26-27, 2014)

DATE: April 15, 2014 Faculty of Law, University of Ottawa 57 Louis Pasteur Private, Room 383 Ottawa, Ontario K1N 6N5 Martha Jackman (LSUC # 31426C) Tel: (613) 562-5800 ext. 3299 Fax: (613) 562-5124 Email: mjackman@uottawa.ca Neighbourhood Legal Services 333 Queen Street East Toronto, Ontario M5A 1S9 Benjamin Ries (LSUC # 58717T) Tel: (416) 861-0677, ext. 722 Fax: (416) 861-1777 Email: riesb@lao.on.ca

Lawyers for the Interveners, Charter Committee Coalition

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TO: Advocacy Centre for Tenants Ontario 425 Adelaide Street West, 5th Floor Toronto, Ontario M5V 3C1

Tracy Heffernan (LSUC # 37482C)

Tel: (416) 597-5820, ext. 5152 Fax: (416) 597-5821 Email: heffernt@lao.on.ca Roach, Schwartz and Associates 688 St. Clair Avenue West Toronto, Ontario M6C 1B1 Peter Rosenthal (LSUC # 330440) Tel: 416-657-1465 Fax: 416-657-1511 Email: rosent@math.toronto.edu Fay Faraday (LSUC # 37799H) Barrister and Solicitor 860 Manning Avenue Toronto, Ontario M6G 2W8 Tel: 416-389-4399 Fax: 647-776-3147 Email: fay.faraday@faradaylaw.com Lawyers for the Appellants AND TO: Ministry of the Attorney General, Constitutional Law Branch McMurtry-Scott Building 720 Bay Street, 4th Floor Toronto, Ontario M5G 2K1

Janet E. Minor (LSUC # 14898A) Shannon Chace (LSUC # 46285G) Tel: (416) 326-4137 / 4471 Fax: (416) 326-4015 Email: janet.minor / shannon.chace @ontario.ca

Lawyers for the Respondent, Attorney General of Ontario

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AND TO: Department of Justice, Ontario Regional Office The Exchange Tower 130 King Street West, Suite 3400, Box 36 Toronto, Ontario M5X 1K6 Gail Sinclair (LSUC # 23894M) Michael Morris (LSUC # 34397W) Tel: 416-954-8109 / 973-9704 Fax: 416-952-4518 Email: gail.sinclair / michael.morris @justice.gc.ca

Lawyers for the Respondent, Attorney General of Canada AND TO: Law Office of Mary Eberts 95 Howland Avenue Toronto, Ontario M5R 3B4 Mary Eberts (LSUC # 14197F) Tel: (416) 923-5215 Email: eberts@ebertslaw.ca Metro Toronto Chinese & Southeast Asian Legal Clinic 180 Dundas Street West, Suite 1701 Toronto, Ontario M5G 1Z8 Avvy Yao-Yao Go (LSUC # 31861E) Tel: (416) 971-9674 Fax: (416) 971-6780 Email: goa@lao.on.ca Lawyers for the Interveners, Colour of Poverty/Colour of Change Network AND TO: Norton Rose Fulbright Canada LLP Royal Bank Plaza, South Tower, Suite 3800 200 Bay Street, P.O. Box 84 Toronto, Ontario M5J 2Z4 Vasuda Sinha (LSUC # 55005B) Rahool Agarwal (LSUC # 54528I) Lauren Posloski (LSUC # 62733K) Tel: (416) 216-3921 / 1924 / 3930 Fax: (416) 216-3930 Email: vasuda.sinha / rahool.agarwal / lauren.posloski @nortonrosefullbright.com Lawyers for the Interveners, Women’s Legal Education Action Fund

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AND TO: Ontario Human Rights Commission Public Interest Inquiries Branch 180 Dundas Street West, Suite 900 Toronto, Ontario M7A 2R9 Anthony D. Griffin (LSUC # 23064S) Tel: (613) 536-7250 Fax: (416) 326-9867 Email: tony.griffin@ohrc.on.ca Lawyer for the Intervener, Ontario Human Rights Commission AND TO: ARCH Disability Law Centre 425 Bloor Street East, Suite 110 Toronto, Ontario M4W 3R4 Laurie Letheren (LSUC # 35968K) Tel: (416) 482-8255 ext. 232 Fax: (416) 482-2981 Email: letherel@lao.on.ca

HIV & AIDS Legal Clinic Ontario 400-65 Wellesley Street East Toronto, Ontario M4Y 3G7 Renée Lang (LSUC # 42051Q) Tel: (416) 340-7790 Fax: 416-340-7248 Email: langr@lao.on.ca Lawyers for the Interveners, ARCH Disability Law Centre, The Dream Team, Canadian HIV/AIDS Legal Network, and HIV & AIDS Legal Clinic Ontario AND TO: Income Security Advocacy Centre 425 Adelaide Street West, 5th Floor Toronto, Ontario M5V 3C1 Jackie Esmonde (LSUC # 47793P) Marie Chen (LSUC # 31780G) Tel: (416) 597-5820 ext. 5153 Fax: (416) 597-5821 Email: esmondja / chenmel @lao.on.ca Lawyers for the Interveners, the Income Security Advocacy Centre, ODSP Action Coalition, and Steering Committee on Social Assistance

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AND TO: Torys LLP TD Centre, Box 270 79 Wellington Street West, Suite 3000 Toronto, Ontario M5K 1N2 Molly M. Reynolds (LSUC # 57239P) Ryan Lax (LSUC # 63740E) Tel: (416) 865-8135 / 8166 Fax: (416) 865-7380 Email: mreynolds / rlax @torys.com Lawyers for the Interveners, Amnesty International Canada and ESCR-Net AND TO: David Asper Centre for Constitutional Rights University of Toronto Faculty of Law 39 Queen’s Park Crescent East Toronto, Ontario M5S 2C3 Cheryl Milne (LSUC # 27022C) Tel: (416) 978-0092 Fax: (416) 978-8894 Email: cheryl.milne@utoronto.ca Lawyer for the Intervener, David Asper Centre for Constitutional Rights

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TABLE OF CONTENTS

PART I – OVERVIEW .................................................................................................... 1

PART II – FACTS ............................................................................................................ 3

PART III – ISSUES AND ANALYSIS ........................................................................... 3

(a) Ensuring the Full Benefit of the Charter for

Disadvantaged Groups ..............................................................................4

(b) The Rule of Law and Constitutionalism ..................................................4

(c) The Relevance of Canada’s International Human

Rights Commitments .................................................................................6

(d) The Justiciability of the Section 7 Claim in this Case.............................7

(e) The Justiciability of the Section 15 Claim in this Case.........................10

(f) The Charter Claims in this Case Should Be Decided on

the Evidence..............................................................................................15

PART IV – ORDER SOUGHT...................................................................................... 15

SCHEDULE A – LIST OF AUTHORITIES

SCHEDULE B – LEGISLATION

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PART I – OVERVIEW

1. At the heart of the Superior Court decision to strike the Applicants’ claim for relief under

the Canadian Charter of Rights and Freedoms (“Charter”) is Justice Lederer’s concern about the

proper role of the courts vis-à-vis the legislature. However, the issues in the present appeal

involve more than the relationship between courts and legislatures. They bear directly on the

relationship between members of the most marginalized groups in Canadian society and the

constitutional rights and values that underpin Canada’s constitutional democracy.

2. For the Charter Committee Coalition (“Coalition”),1 Justice Lederer’s willingness to

seriously limit the scope of Charter protections for members of disadvantaged groups, in order to

preserve what he sees as the proper “institutional boundaries” of the courts, is the most critical

issue in the present appeal. Justice Lederer found that Charter claims emerging from experiences

of socio-economic exclusion with multiple causes – advanced by those who, because of their

disadvantaged circumstances, rely on positive government measures to protect their rights –

belong in “committee rooms and Legislatures”2 and not in the courts.3 Such a finding

undermines, rather than reinforces, the legitimacy of judicial review – and misapprehends the

critical function of the courts within our constitutional order.

3. The Coalition agrees that courts are not the appropriate venue for political campaigns

seeking better housing or income support programs. That is not, however, the nature of this case.

The question in this case is a legal issue, not a policy matter. The court is being called upon to

1 The Charter Committee on Poverty Issues, Pivot Legal Society and Justice for Girls have been granted leave to intervene in this appeal as a coalition: Charter Committee Coalition Book of Authorities (“CCC Authorities”), Tab 1: Tanudjaja v. Attorney General (Canada), (31 March 2014), Docket No. M43549 (ONCA), Feldman J. in chambers. 2 Appeal Book and Compendium (“Appeal Book”), Tab 10: Tanudjaja v. Attorney General (Canada), 2013 ONSC 1878 at para. 6 (ruling on intervention motions). 3 “General questions that reference, among many other issues, assistance to those in poverty, the levels of housing supports and income supplements, the basis on which people may be evicted from where they live and the treatment of those with psycho-social and intellectual disabilities are important, but the courtroom is not the place for their review.” Appeal Book, Tab 3: Tanudjaja v. Attorney General (Canada) (Application), 2013 ONSC 5410 at para. 120; see also paras. 4, 83-90, 135, 140-148.

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interpret and apply constitutional rights in a particular factual context. Hearing and deciding the

Applicants’ legal claim, based on a full evidentiary record, falls squarely within the

constitutionally assigned role of the judiciary in Canada’s constitutional democracy.

4. It is accepted as fact (for the purposes of the motion to dismiss) that the Respondents’

policies have created and sustained conditions of homelessness and inadequate housing, causing

serious harm to life and to security of the person, including physical and mental illness,

shortened lives and even death.4 It is also accepted that the Respondents have failed to

accommodate the needs of people with disabilities and other section 15 protected groups, and

that these groups have suffered disproportionately adverse effects of homelessness – including

negative stereotypes, prejudice, and social and political marginalization – as a result.5

5. These types of harms have, in other circumstances, been subject to judicial review under

sections 7 and 15 of the Charter. However, in the context of homelessness, Justice Lederer held

that the Applicants’ claims are “misconceived” and not justiciable.6 Justice Lederer came to this

conclusion because the harms at issue were caused not by a single governmental act, but rather

by a number of inter-related laws, programs and policies – and because an effective remedy to

these harms would require the Respondents to take positive measures in the form of a coherent

strategy to reduce and eliminate homelessness.7 If his reasoning and conclusions are upheld,

those living in poverty and homelessness would become, in Chief Justice McLachlin’s words,

“constitutional castaways.”8

4 Appeal Book, Tab 5: Amended Notice of Application at p. 88, paras. 27- 30. 5 ibid at paras. 25-26, 30-32. 6 Appeal Book, Tab 3: Tanudjaja (Application), supra at paras. 4, 83-88, 119-121, 135, 142-148. 7 ibid at paras. 3, 26, 31, 34, 40-55, 58-59, 65, 81-83, 109-111, 147-148. 8 CCC Authorities, Tab 6: R. v. Prosper, [1994] 3 S.C.R. 236 at para. 102.

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6. The courts have a constitutional mandate to interpret and apply the Charter in a manner

that secures every individual in Canada the full benefit of the Charter’s protection.9 This, rather

than a preconceived idea of what kinds of issues (and, by definition, what types of claimants)

belong in the courtroom, should be the starting point of any Charter analysis. On that basis, the

Coalition urges this Court to reverse Justice Lederer’s decision, allowing those who suffer

deprivations of rights because of homelessness and inadequate housing to obtain a full and fair

hearing of their legitimate Charter claims in this case.

PART II – FACTS

7. The facts set out in the Amended Notice of Application are assumed to be true.

PART III – ISSUES AND ANALYSIS

8. The Coalition will make the following submissions:

(a) Sections 7 and 15 must be interpreted in a manner that ensures the full benefit of

the Charter’s protection for vulnerable groups, including the homeless;

(b) Constitutionalism and the rule of law expose all exercise of government authority

to Charter scrutiny, including housing policy;

(c) Canada’s international human rights commitments are a persuasive source for

interpreting the Charter rights at issue in this case;

(d) Supreme Court jurisprudence supports the justiciability of the section 7 claim;

(e) Supreme Court jurisprudence supports the justiciability of the section 15 claim;

(f) The section 7 and 15 claims in this case should be decided on the evidence.

9 CCC Authorities, Tab 5: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344; “The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection.” CCC Authorities, Tab 3: Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157 at para. 19.

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(a) Ensuring the Full Benefit of the Charter for Disadvantaged Groups

9. The Supreme Court of Canada noted in Irwin Toy v. Canada that “[v]ulnerable groups will

claim the need for protection by the government whereas other groups and individuals will assert

that the government should not intrude.”10 The Court warned against allowing the Charter to

become an instrument privileging the advantaged. Since the inception of the Charter, the Court

has been adamant that the Charter must be responsive to the most disadvantaged in society.11

10. Further, the Court was careful in Irwin Toy to distinguish corporate-commercial economic

rights from “such rights included in various international covenants, as rights to social security,

equal pay for equal work, adequate food, clothing and shelter…” The Court affirmed that it

would be “precipitous” to exclude such rights from the scope of section 7 at an “early moment in

the history of Charter interpretation.”12

11. Rights deprivations suffered by disadvantaged groups often relate to more than one law,

policy or program and can only be effectively addressed through positive remedies. Justice

Lederer’s restriction of the courts’ role to the adjudication of negative rights claims involving

singular acts by governments would preclude disadvantaged groups from advancing Charter

claims to address the most serious deprivations of life, security and equality that they experience.

(b) The Rule of Law and Constitutionalism

12. Contrary to Justice Lederer’s approach in this case, the Supreme Court of Canada has been

clear that the Charter should not be read in a way that immunizes particular spheres of

10 Respondents’ Joint Book of Authorities (“Respondents’ Authorities”), Tab 59: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927 at 993. 11 ibid at 993, citing R. v. Edwards Books and Art Ltd., [1986] 2 SCR 713 779 12 ibid at 993, 1003.

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government policy from Charter scrutiny, or that categorizes particular types of rights claims as

non-justiciable.13 The Supreme Court’s “primordial direction”14 is that Charter rights be defined

generously, “avoiding what has been called ‘the austerity of tabulated legalism,’ suitable to give

to individuals the full measure of the fundamental rights and freedoms referred to.”15 Adherence

to these interpretive principles is especially important in a motion to dismiss, by which the

Respondents seek to foreclose the possibility of novel interpretations of Charter rights.

Moreover, these are claims informed by Canada’s international human rights obligations and

advanced by marginalized groups who rarely appear before the courts as Charter claimants.

13. Justice Lederer failed to distinguish political decisions about social policies from judicial

determinations as to whether such policies respect the Charter. In doing so, he erroneously

translated deference to the legislature in the design and implementation of policy into outright

abdication of the responsibility, incumbent on courts, to interpret and apply the Charter to

government social policy where the rights of disadvantaged groups are most often engaged. As

Justice Binnie explained in Newfoundland (Treasury Board) v. N.A.P.E.,

The “political branches” of government are the legislature and the executive. Everything that they do by way of legislation and executive action could properly be called “policy initiatives”. If the “political branches” are to be the “final arbitrator” of compliance with the Charter of their “policy initiatives”, it would seem the enactment of the Charter affords no real protection at all to the rightsholders the Charter, according to its text, was intended to benefit. Charter rights and freedoms, on this reading, would offer rights without a remedy.16

13 It is settled law, since the Operation Dismantle case that: “where there is an issue which is appropriate for judicial determination the courts should not decline to determine it on the ground that because of its policy context or implications it is better left for review and determination by the legislative or executive branches of government.” CCC Authorities, Tab 4: Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607 at para. 33; Respondents’ Authorities, Tab 85: Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Respondents’ Authorities, Tab 54: Health Services and Support – Facilities Subsector Bargaining Assn.v. British Columbia, [2007] 2 S.C.R. 391 at para. 26; CCC Authorities, Tab 2: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 (CanLII), [2012] 2 SCR 524 at para. 40. 14 CCC Authorities, Tab 3: Divito, supra at paras 19, 22. 15 Respondents’ Authorities, Tab 39: Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624 at para. 53, citing Lord Wilberforce in Minister of Home Affairs v. Fisher, [1980] A.C. 319 (P.C., Bermuda), at p. 328. 16 Appellants’ Book of Authorities (“Appellants’ Authorities” – tab numbers unavailable as of the date of this factum): Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 SCR 381 at para. 111.

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Justice Lederer thus ignored the fundamental principle of constitutionalism: that all exercise of

governmental authority must be subject to the strictures of the constitution.

(c) The Relevance of Canada’s International Human Rights Commitments

14. In the twenty five years since Irwin Toy, the Supreme Court has made increasing use of

international human rights law and authoritative commentary as indicia of the scope of Charter

guarantees. In the words of Chief Justice McLachlin and Justice Lebel, “the Charter, as a living

document, grows with society and speaks to the current situations and needs of Canadians. Thus

Canada’s current international law commitments and the current state of international thought on

human rights provide a persuasive source for interpreting the scope of the Charter.”17

15. As Professor Craig Scott has noted, a range of UN treaty monitoring bodies have concluded

that the failure by Canadian governments to take positive measures to address homelessness

places Canada in serious non-compliance with its international human rights obligations – not

only with respect to economic, social and cultural rights but also with respect to the right to life

and the right to non-discrimination.18 In an era when, as former Supreme Court Justice La Forest

described it, “we are absorbing international legal norms affecting the individual through our

constitutional pores”,19 the growing concern from international human rights bodies about the

17 Respondents’ Authorities, Tab 54: B.C. Health Services, supra at para. 78; CCC Authorities, Tab 3: Divito, supra at paras. 22-23. 18 As Scott comments: “we cannot, if we act at all in good faith, relegate the committees' concerns to some rarefied international space. If taken seriously within Canada, the two Concluding Observations could represent a legal landmark for the evolution of our statutory and constitutional protection of human rights.” Book of Authorities for the Interveners, Amnesty/ESCR-Net (“Amensty Authorities”), Tab 21: Craig Scott, “Canada’s International Human Rights Obligations and Disadvantaged Members of Society: Finally into the Spotlight?” (1999) 10 Constitutional Forum 97-111 at 99-100. See also, in particular, Appellants’ Authorities: United Nations Human Rights Committee, Concluding Observations: Canada, UNHRCOR, 65th Sess, UN Doc CCPR/C/79/Add.105, (1999) at para. 12; Appellants’ Authorities: United Nations Committee on Economic, Social and Cultural Rights, Concluding Observations: Canada, E/C.12/1/Add.31 (10 December 1998) at para. 15. See also CCC Authorities, Tab 8: Bruce Porter, “Social Rights in Anti-Poverty and Housing Strategies: Making the Connection” and Martha Jackman and Bruce Porter, “Rights-based Strategies to Address Homelessness and Poverty in Canada: The Charter Framework” in Martha Jackman and Bruce Porter (eds), Advancing Social Rights in Canada (Toronto: Irwin Law, forthcoming 2014). 19 Amnesty Authorities, Tab 21: Craig Scott, supra at p. 110 citing The Hon. Mr. Justice Gerard La Forest, "The Expanding Role of the Supreme Court of Canada in International Law Issues" (1996) 34 Can. Y. B. Int'l L. 89 at 98.

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lack of positive government action to address homelessness in Canada, and the need to ensure

access to effective remedies for those affected, constitute relevant and persuasive authority in

support of allowing the Application in the present case to proceed to a full hearing.

(d) The Justiciability of the Section 7 Claim in this Case

16. The serious harms experienced by the Applicants and others who are homeless include

threats to life, health, physical and psychological security, personal inviolability and the integrity

of the family, all of which have been recognized by the Supreme Court of Canada as core

components of the section 7 right to life, liberty, and security of the person.20 The knowing

failure by governments to address such harms has been characterized by the Court as arbitrary,

and so not in accordance with section 7 principles of fundamental justice.21

17. Justice Lederer erred in finding that “[t]he law is established. As it presently stands, there

can be no positive obligation on Canada and Ontario to act to put in place programs that are

directed to overcoming concerns for the ‘life, liberty and security of the person.’”22 There is no

jurisprudential basis for such a finding.

18. A direct parallel can be drawn between the section 7 violations outlined by the Applicants

in relation to housing policy in this case, and those violations challenged under section 7 in the

context of the legal aid system in New Brunswick (Minister of Health and Community Services)

v. G. (J.); the social assistance system in Gosselin v. Quebec (Attorney General); the health care

20 Respondents’ Authorities, Tab 26: Chaoulli v. Quebec (Attorney General), 2005 SCC 35 at para. 34; Respondents’ Authorities, Tab 50: Gosselin v. Québec (Attorney General), [2002] 4 SCR 429 at paras. 80, 311; Respondents’ Authorities, Tab 22: Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 (“Insite”) at para. 93; Appellants’ Authorities: New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 SCR 46 at paras. 58-62. 21 Respondents’ Authorities, Tab 26: Chaoulli, supra at paras. 104, 153 Respondents’ Authorities, Tab 22: Insite, supra at para. 132; Appellants’ Authorities: G. (J.), supra at paras. 91-93. 22 Appeal Book, Tab 3: Tanudjaja (Application), supra at para. 59; CCC Authorities, Tab 11: Margot Young, “Rights, the Homeless, and Social Change: Reflections on Victoria (City) v. Adams (BCSC)”, Case Comment (2009) 164 BC Studies 103.

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system in Chaoulli v. Quebec (Attorney General); and the overlapping public health and public

safety systems in Canada (Attorney General) v. PHS Community Services Society (“Insite”).23

Governments insisted in each of these cases, as the Respondents do in the present case, that

section 7 claims requiring positive measures to address systemic deprivations are non-justiciable.

The Supreme Court of Canada has consistently rejected this argument.

19. In G. (J.) the Supreme Court rejected the government’s claim that there is no positive

obligation to provide legal aid under the Charter.24 The Court found that publicly funded legal

representation had to be made available, where this was necessary to meet the fundamental

justice requirements of section 7, and that the Respondent could itself choose the means of

providing the requisite services, either within our outside the province’s legal aid program.25

20. In Gosselin, governments argued that a claim to an adequate level of social assistance is

non-justiciable under the Charter and that section 7 imposes no positive obligations on

governments. The Supreme Court accepted the justiciability of the claim in Gosselin and, as the

Applicants and other interveners have documented, the majority of the Court explicitly left open

the possibility that inadequate social assistance rates can violate section 7 where there is

evidence of “actual hardship.” As Justice Arbour summarized the Court’s position,

This Court has never ruled, nor does the language of the Charter itself require, that we must reject any positive claim against the state – as in this case – for the most basic positive protection of life and security. This Court has consistently chosen instead to leave open the possibility of finding certain positive rights to the basic means of subsistence within s. 7.26

23 Appellants’ Authorities: G. (J.), supra; Respondents’ Authorities, Tab 50: Gosselin, supra; Respondents’ Authorities, Tab 26: Chaoulli, supra; Respondents’ Authorities, Tab 22: Insite, supra. 24 Appellants’ Authorities: G. (J.), supra at paras. 81, 108. 25 ibid at paras. 96,-97, 102. 26 Respondents’ Authorities, Tab 50: Gosselin, supra at para. 309 (per Arbour J.); para. 83 (per McLachlin C.J.).

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21. In Chaoulli, the Respondent Attorneys General of Quebec and Canada asserted that the

Appellants’ section 7 claim was not justiciable. Both the minority and the majority of the Court

rejected this argument. As Chief Justice McLachlin and Justice Major affirmed,

While the decision about the type of health care system Quebec should adopt falls to the Legislature of that province, the resulting legislation, like all laws, is subject to constitutional limits, including those imposed by s. 7 of the Charter. The fact that the matter is complex, contentious or laden with social values does not mean that the courts can abdicate the responsibility vested in them by our Constitution to review legislation for Charter compliance when citizens challenge it.27

22. Justice Deschamps noted that there had been numerous commissions and reports examining

problems within the health care system; that the government had many years to act; and that it

had “lost sight of the urgency of taking concrete action.” As she affirmed,

For many years, the government has failed to act; the situation continues to deteriorate … While the government has the power to decide what measures to adopt, it cannot choose to do nothing in the face of the violation of Quebeckers’ right to security. The government has not given reasons for its failure to act. Inertia cannot be used as an argument to justify deference.28

23. In the Insite case, the Respondent Attorney General for Canada argued that the appellants’

section 7 claim was not justiciable, insisting that “the decision to allow supervised injection is a

policy question, and thus immune from Charter review.” Chief Justice McLachlin rejected this

argument in the following terms:

The answer, once again, is that policy is not relevant at the stage of determining whether a law or state action limits a Charter right … It is for the relevant governments, not the Court, to make criminal and health policy. However, when a policy is translated into law or state action, those laws and actions are subject to scrutiny under the Charter.29

24. In summary – and contrary to Justice Lederer’s holding – the Supreme Court of Canada has

consistently rejected arguments that section 7 claims requiring positive action are non-justiciable.

27 Respondents’ Authorities, Tab 26: Chaoulli, supra at paras. 107 (McLachlin & Major); 96 (Deschamps); 183 (Binnie & LeBel). 28 ibid at paras. 96-97. 29 Respondents’ Authorities, Tab 22: Insite, supra at paras. 103-105.

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(e) The Justiciability of the Section 15 Claim in this Case

25. Justice Lederer found the Applicants’ section 15 claim non-justiciable because it affirms

positive obligations on governments to address the needs of disadvantaged groups and because

the Applicants seek a “wide examination of policy” – rather than challenging a singular law,

policy or denial of a specific benefit.30 However, Supreme Court jurisprudence clearly

establishes that neither feature of the Applicants’ section 15 claim renders it non-justiciable.

26. The Respondents submitted in Vriend v. Alberta, as Justice Lederer held in this case, that

the Charter applies only to governments’ actions, and not to governments’ failures to act. The

Supreme Court of Canada unanimously rejected this argument, based on what it described as the

“problematic” distinction between government action and inaction.31 Quoting Professor Dianne

Pothier on this point, the Court affirmed that “section 32 is worded broadly enough to cover

positive obligations on a legislature such that the Charter will be engaged even if the legislature

refuses to exercise its authority.”32

27. The Court held in Vriend that the failure to address the needs of protected groups creates a

distinction between those groups and others in Canadian society, and constitutes adverse effects

discrimination within the meaning section 15. As Justice Cory explained, “[t]he exclusion of the

ground of sexual orientation, considered in the context of the social reality of discrimination

against gays and lesbians, clearly has a disproportionate impact on them as opposed to

heterosexuals.”33

30 Appeal Book, Tab 3: Tanudjaja (Application), supra at paras 103, 108-109, 113, 115-118, 121. 31 Respondents’ Authorities, Tab 114: Vriend v. Alberta, [1998] 1 S.C.R. 493 at para. 59. 32 ibid at para. 60 (quoting Dianne Pothier, “The Sounds of Silence: Charter Application when the Legislature Declines to Speak” (1996) 7 Const Forum Const 113 at 1150). 33 ibid at para. 82.

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28. Contrary to Justice Lederer’s conclusion that there is no valid comparison upon which to

base a section 15 claim in the present case,34 the Applicants’ claim is consistent with the

substantive equality analysis adopted by the Supreme Court of Canada in Vriend. The

Application documents the vulnerability to homelessness of particular groups in comparison to

more advantaged members of society – hence the disproportionate effect of the Respondents’

failures to implement housing strategies. As the Applicants state, “Canada’s and Ontario’s failure

to implement effective strategies to address homelessness and inadequate housing therefore

constitutes adverse effects discrimination against these groups under s. 15.”35

29. In Eldridge v. British Columbia, the Respondents asserted, as they do in the present case,

that section 15 does not impose positive obligations on governments to address societal

disadvantage that is not caused by the impugned government program or action. A unanimous

Supreme Court characterized this argument as bespeaking a “thin and impoverished vision of s.

15(1)” that “is belied, more importantly, by the thrust of this Court’s equality jurisprudence.”36

30. The Respondents in Eldridge argued that the Appellants’ section 15 claim should fail

because the provision of free health care benefited, rather than harmed them, and the health care

system did not exacerbate existing disparities between the disadvantaged group and the general

population.37 The Supreme Court of Canada rejected this argument as being based on the false

premise that “government is not obliged to ameliorate disadvantage that it has not helped to

create or exacerbate.”38 The Court instead agreed with the Appellants that positive measures

were required to bring the system into compliance with section 15. The Coalition submits that

34 Appeal Book, Tab 3: Tanudjaja (Application), supra at paras. 107-108. 35 ibid at para. 111; Appeal Book, Tab 5: Amended Notice of Application, paras. 35-36. 36 Respondents’ Authorities, Tab 39: Eldridge, supra at para. 65. 37 ibid, at para. 72. 38 ibid at para. 66.

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the same reasoning should be applied by this Court with respect to Justice Lederer’s finding

there is no discrimination in the present case because “[i]t is not the housing programs that are

the cause of the difficulties these groups confront in looking for appropriate housing.”39

31. The Supreme Court of Canada also recognized in Eldridge that a section 15 violation need

not be tied to a particular program, policy or legislation.40 The Court found that the equality

rights violation in that case was not the result of the province’s health or hospital insurance

legislation, but rather lay in the Respondents’ general failure to address the needs of deaf patients

for interpreter services. On that basis the Court concluded that, “there are myriad options

available to the government that may rectify the unconstitutionality of the current system.”41

32. The Court’s decision in Eldridge makes clear that, when governments are engaged in an

inter-locking system of programs and policies that deprives protected groups of substantive

equality, the appropriate question is not whether the systemic inequality can be linked to a

singular law or the denial of a specific benefit. Rather, the question is whether there are

reasonable measures available to governments to remedy the inequality. Finding that positive

measures are required does not, as the Respondents argue in this case, require courts to define

universal minimum entitlements. Rather, a court may choose to provide general direction to

governments regarding reasonable measures to ensure Charter compliance, as the Court did in

Eldridge and as the Applicants request in this case.42

33. Professor David Wiseman has commented, in relation to the present case, that by declining

to ground the alleged unconstitutionality in a particular program or benefit, the Applicants have 39 Appeal Book, Tab 3: Tanudjaja (Application), supra at para. 115. 40 Respondents’ Authorities, Tab 39: Eldridge, supra at paras. 23-24. 41 ibid at para. 96. 42 In Eldridge, the Court left it to the government to “take into consideration such factors as the complexity and importance of the information to be communicated, the context in which the communications will take place and the number of people involved.” ibid at para. 82.

13

provided the court with the necessary flexibility to address institutional competence concerns in

a polycentric area of social policy. As Wiseman explains,

The primary means by which the Homelessness Challenge may be attempting to do this is in emphasizing that the rights violations lie in the lack of results of governmental decision-making relating to homelessness and housing as a whole, rather than having the violations lie in any particular decision or choice of policy means.43

34. This aspect of the Applicants’ claim ensures that, as in Eldridge, the court is able to

exercise its competence in assessing whether systemic exclusion of protected groups from access

to housing violates section 15, while deferring to governments to determine how inter-related

programs and policies should be adjusted in order to remedy the unconstitutional effects.

Wiseman points out that

This framing is more straightforward than one that would require a court to determine whether responsibility for the harms or inequalities can be attributed to a single isolated decision. In an admittedly complex social policy area, attributing such results to one instance of decision-making seems unreal and, more importantly, difficult to substantiate with a sufficient degree of confidence and competence.44

35. While Justice Lederer describes the Applicants’ approach as “ill-conceived”, the

Application has in fact been framed in a manner that appropriately relies on the respective

competence and responsibilities of courts and legislatures. The Application documents the

adverse effects on protected groups of governments’ failures to address systemic inequality

within the existing affordable housing system. The question of whether the Respondents have

failed to adopt reasonable measures to ensure that the needs of section 15 protected groups are

taken into account and addressed is clearly justiciable and within the scope of section 15 as it has

been interpreted and applied by the Supreme Court of Canada.

43 CCC Authorities, Tab 10: David Wiseman, “Managing the Burden of Doubt: Social Science Evidence, the Institutional Competence of Courts and the Prospects for Anti-poverty Charter Claims” (Forthcoming: 2014) 33:1 National Journal of Constitutional Law at p. 45. 44 ibid.

14

36. Justice Lederer’s finding that homelessness cannot constitute an analogous ground of

discrimination is also unsupported by jurisprudence. While courts have yet to consider this issue,

there is significant authority in favour of the Applicants’ claim. The Nova Scotia Court of

Appeal has found that public housing residency is an analogous ground under section 15.45

Aboriginal residency status has similarly been found to constitute an analogous ground by the

Supreme Court of Canada.46 International human rights jurisprudence has recognized

homelessness as a ground of discrimination which should be prohibited by states.47 Protection

from discrimination because of homelessness has been included under the ground of “social

disadvantage” or “social condition” in provincial human rights legislation.48

37. In R v. Clarke,49 the Ontario Superior Court considered evidence of discrimination and

prejudice against the homeless in deciding whether to permit challenges for cause in jury

selection on this ground. Justice Ferrier concluded that “there is widespread prejudice against the

poor and the homeless in the widely applied characterization that the poor and homeless are

dishonest and irresponsible and that they are responsible for their own plight.”50 He further found

that “the prejudice against the poor and homeless is similar to racial prejudice.”51 In the

Coalition’s submission, homelessness as a prohibited ground of discrimination under section 15

45 CCC Authorities, Tab 7: Sparks v. Dartmouth/Halifax County Regional Housing Authority, 1993 CanLII 3176 (NS CA) 46 Respondents’ Authorities, Tab 34: Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203. 47 Amnesty Authorities, Tab 36: United Nations Committee on Economic, Social and Cultural Rights, General Comment 20: Non-discrimination in economic, social and cultural rights (art 2 para 2), UNCESCROR, 42d Sess, UN Doc E/C.12/GC/20, (2009). Along with grounds such as disability and sexual orientation, the Committee lists “economic and social situation,” noting that “[a] person’s social and economic situation when living in poverty or being homeless may result in pervasive discrimination, stigmatization and negative stereotyping.” 48 See, for example, [Manitoba] Human Rights Code, CCSM, c. H-175. s. 9(2)(m). ‘Social disadvantage' is defined in s. 1 to mean “diminished social standing or social regard due to (a) homelessness or inadequate housing; (b) low levels of education; (c) chronic low income; or (d) chronic unemployment or underemployment.”’ Other provinces prohibit discrimination on the ground of “social condition”: [Quebec] Charter of Human Rights and Freedoms, RSQ, c. 12, s.10; [New Brunswick] Human Rights Act, RSNB 2011, c. 171 ss. 2, 5-8; [Northwest Territories] Human Rights Act, SNWT 2002, c. 18, s.1. 49 Appellants’ Authorities: R v. Clarke (2003), 61 WCB (2d) 134, [2003] OJ No 3883 (QL). 50 ibid at para 18. 51 ibid.

15

is an issue that deserves a full hearing on the evidence, including evidence from those who have

experienced the kinds of prejudice described by Justice Ferrier in the Clarke case.

(f) The Charter Claims in this Case Should Be Decided on the Evidence

38. In summary, the Applicants have framed a credible and defensible Charter claim based on

existing Supreme Court jurisprudence. The claim is critically important, not only for the

Applicants, but for other disadvantaged groups in Canada. The Applicants ask this Court to

permit one of the most egregious deprivations of equality in Canadian society to be subjected to

Charter review, and to permit a full and fair hearing for those whose rights have long been

ignored. Far from being misconceived, the Applicants’ claim is fully consistent with the broader

purposes of the Charter and the historic expectations of equality-seeking groups.52 The proper

role of the Court in this case is, as it was described in Chaoulli, to provide the “last line of

defense for” some of the most marginalized and powerless members of Canadian society.53

PART IV – ORDER SOUGHT

39. The Coalition respectfully requests that the appeal be granted.

40. The Coalition further requests that it not be granted costs, nor costs be ordered against it.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 15th day of April 2014.

________________________ Benjamin Ries and Martha Jackman

Lawyers for the Interveners, the Charter Committee Coalition

52 CCC Authorities, Tab 9: Bruce Porter, “Expectations of Equality” (2006) 33 Sup Ct L Rev 23. 53 Respondents’ Authorities, Tab 26: Chaoulli, supra at para 96.

SCHEDULE A – LIST OF AUTHORITIES

Legal Authorities

Tanudjaja v. Attorney General (Canada), (31 March 2014), Docket No. M43549 (ONCA), Feldman J. in chambers

Tanudjaja v. Attorney General (Canada), 2013 ONSC 1878 (intervention motions)

Tanudjaja v. Attorney General (Canada) (Application), 2013 ONSC 541

R. v. Prosper, [1994] 3 S.C.R. 236

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295

Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927

Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607

Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441

Health Services and Support – Facilities Subsector Bargaining Assn.v. British Columbia, [2007] 2 S.C.R. 391

Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 (CanLII), [2012] 2 SCR 524

Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624

Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 SCR 381

United Nations Human Rights Committee, Concluding Observations: Canada, UNHRCOR, 65th Sess, UN Doc CCPR/C/79/Add.105, (1999)

United Nations Committee on Economic, Social and Cultural Rights, Concluding Observations: Canada, E/C.12/1/Add.31 (10 December 1998)

Chaoulli v. Quebec (Attorney General), 2005 SCC 35

Gosselin v. Québec (Attorney General), [2002] 4 SCR 429

Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 (“Insite”)

New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 SCR 46

Vriend v. Alberta, [1998] 1 S.C.R. 493

ii

Sparks v. Dartmouth/Halifax County Regional Housing Authority, 1993 CanLII 3176 (NS CA)

Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203

United Nations Committee on Economic, Social and Cultural Rights, General Comment 20: Non-discrimination in economic, social and cultural rights (art 2 para 2), UNCESCROR, 42d Sess, UN Doc E/C.12/GC/20, (2009)

R v. Clarke (2003), 61 WCB (2d) 134, [2003] OJ No 3883 (QL)

Academic Authorities

Craig Scott, “Canada’s International Human Rights Obligations and Disadvantaged Members of Society: Finally into the Spotlight?” (1999) 10 Constitutional Forum 97-111

Bruce Porter, “Social Rights in Anti-Poverty and Housing Strategies: Making the Connection” and Martha Jackman and Bruce Porter, “Rights-based Strategies to Address Homelessness and Poverty in Canada: The Charter Framework” in Martha Jackman and Bruce Porter (eds), Advancing Social Rights in Canada (Toronto: Irwin Law, forthcoming 2014)

Margot Young, “Rights, the Homeless, and Social Change: Reflections on Victoria (City) v. Adams (BCSC)”, Case Comment (2009) 164 BC Studies 103

David Wiseman, “Managing the Burden of Doubt: Social Science Evidence, the Institutional Competence of Courts and the Prospects for Anti-poverty Charter Claims” (Forthcoming: 2014) 33:1 National Journal of Constitutional Law

Bruce Porter, “Expectations of Equality” (2006) 33 Sup Ct L Rev 23

iii

SCHEDULE B – LEGISLATION

CANADIAN CHARTER OF RIGHTS AND FREEDOMS , Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11

s. 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

. . . s. 15(1) Every individual is equal before and under the law and has the right to the equal

protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The [Manitoba] Human Rights Code, C.C.S.M. c. H-175

s. 9(1) In this Code, “discrimination” means . . . (b) differential treatment of an individual or group on the basis of any characteristic referred to in subsection (2); or . . . (d) failure to make reasonable accommodation for the special needs of any individual or group, if those special needs are based upon any characteristic referred to in subsection (2).

. . . s. 9(2) The applicable characteristics for the purposes of clauses (1)(b) to (d) are

. . . (m) social disadvantage.

s. 9(2.1) It is not discrimination on the basis of social disadvantage unless the discrimination is

based on negative bias or stereotype related to that social disadvantage.

[Quebec] Charter of Human Rights and Freedoms, C.Q.L.R. c. C-12

s. 10 Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

Discrimination exists where such a distinction, exclusion or preference has the effect

of nullifying or impairing such right.

iv

[New Brunswick] Human Rights Act, R.S.N.B. 2011, c. 171

s. 2 The following definitions apply in this Act. . . . “social condition”, in respect of an individual, means the condition of inclusion of the individual in a socially identifiable group that suffers from social or economic disadvantage on the basis of his or her source of income, occupation or level of education. . . .

s. 5(1) No person directly or indirectly, alone or with another, by himself, herself or itself or by the interposition of another, shall, because of race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, sexual orientation, sex, social condition or political belief or activity, (a) deny to any person or class of persons the right to occupy a commercial unit or a dwelling unit, or (b) discriminate against any person or class of persons with respect to any term or condition of occupancy of a commercial unit or a dwelling unit.

s. 5(2) No person who offers to sell property or any interest in property shall, because of

…social condition…, (a) refuse an offer to purchase the property or interest made by a person or class of persons, or, (b) discriminate against any person or class of persons with respect to any term or condition of the sale of any property or interest in property.

s. 5(3) No person shall impose, enforce or endeavour to impose or enforce, any term or

condition on any conveyance, instrument or contract, whether written or oral, that restricts the right of any person or class of persons, with respect to property because of …social condition…

s. 5(4) Despite subsection (1), a limitation, specification, exclusion, denial or preference

because of …social condition… shall be permitted if the limitation, specification, exclusion, denial or preference is based on a bona fide qualification as determined by the Commission.

. . . s. 6(1) No person, directly or indirectly, alone or with another, by himself, herself or itself or

by the interposition of another, shall, because of …social condition…, (a) deny to any person or class of persons any accommodation, services or facilities available to the public, or (b) discriminate against any person or class of persons with respect to any accommodation, services or facilities available to the public.

s. 6(2) Despite subsection (1), a limitation, specification, exclusion, denial or preference

because of …social condition… shall be permitted if the limitation, specification, exclusion, denial or preference is based on a bona fide qualification as determined by the Commission.

. . . s. 7(1) No person shall

(a) publish, display, or cause to be published or displayed, or

v

(b) permit to be published or displayed on lands or premises, in a newspaper, through a television or radio broadcasting station, or by means of any other medium that the person owns or controls, a notice, sign, symbol, emblem or other representation indicating discrimination or an intention to discriminate against any person or class of persons because of …social condition…

. . . s. 7(3) Despite subsection (1), a limitation, specification, exclusion, denial or preference

because of …social condition… shall be permitted if the limitation, specification, exclusion, denial or preference is based on a bona fide qualification as determined by the Commission.

. . . s. 8(1) No professional association or business or trade association shall exclude any person

from full membership or expel or suspend or otherwise discriminate against any of its members because of …sexual orientation…

. . . s. 9 Despite any provision of this Act, a limitation, specification, exclusion, denial or

preference on the basis of social condition shall be permitted if it is required or authorized by an Act of the Legislature.

[Northwest Territories] Human Rights Act, S.N.W.T. 2002, c. 18

s. 1(1) In this Act, . . . “social condition”, in respect of an individual, means the condition of inclusion of the individual, other than on a temporary basis, in a socially identifiable group that suffers from social or economic disadvantage resulting from poverty, source of income, illiteracy, level of education or any other similar circumstance;

. . . s. 5(1) For the purposes of this Act, the prohibited grounds of discrimination are race, colour,

ancestry, nationality, ethnic origin, place of origin, creed, religion, age, disability, sex, sexual orientation, gender identity, marital status, family status, family affiliation, political belief, political association, social condition and a conviction that is subject to a pardon or record suspension.

Tanudjaja v. Canada (Attorney General) Court File No.: C57714

COURT OF APPEAL FOR ONTARIO

FACTUM OF THE INTERVENERS: CHARTER COMMITTEE COALITION (Charter Committee on Poverty Issues, Pivot Legal Society, Justice for Girls)

Co-counsel for the Proposed Coalition of Interveners:

Martha Jackman (LSUC # 31426C) Faculty of Law, University of Ottawa 57 Louis Pasteur Private, Room 383 Ottawa, ON K1N 6N5 Tel: (613) 562-5800 x3299 Fax: (613) 562-5124 mjackman@uottawa.ca Benjamin Ries (LSUC # 58717T) Neighbourhood Legal Services 333 Queen Street East Toronto, ON M5A 1S9 Tel: (416) 861-0677 x722 Fax: (416) 861-1777 riesb@lao.on.ca

Fax distribution list:

Advocacy Centre for Tenants Ontario (416) 597-5821 Ministry of the Attorney General (Ontario) (416) 326-4015 Department of Justice (Canada) (416) 952-4518 Metro Toronto Chinese & Southeast Asian Legal Clinic (416) 971-6780 Norton Rose Fulbright Canada LLP (416) 216-3930 Ontario Human Rights Commission (416) 326-9867 ARCH Disability Law Centre (416) 482-2981 Income Security Advocacy Centre (416) 597-5821 Torys LLP (416) 865-7380 David Asper Centre for Constitutional Rights (416) 978-8894