Cities Have the Duty to Act on the Human Right to Housing – And the Tools to Do It, Too

octobre 24, 2022 — The Big Picture

By Elizabeth McIsaac, Maytree

So much talk about housing concerns units. How many units can we build? Where are the units located? What does each unit cost? But to make real progress on the housing crisis, we need to talk about people. Which people have been shut out of the housing market? How do public policies affect how people get housing (or don’t)? What do people need to turn a physical structure into a home?

At its core, the current approach to the housing crisis overwhelmingly views housing as a product, a commodity that should be left to market forces. But, housing is much more than a commodity. It is a human right. And that means governments – not markets – are ultimately responsible for ensuring that every person has adequate housing. Governments at all levels, including municipal governments, have a duty to act. They must initiate and sustain actions at the systems level to fulfill every person’s right to a home.

This should no longer be a subject of debate: housing as a human right was affirmed in international law more than four decades ago, in Canadian law in 2019, and subsequently in local charters and action plans in Canadian cities such as London and Toronto. And yet, the concept of the human right to housing is not widely understood, much less implemented. 

The human right to housing is not an abstract ideal. The practice of human rights is based on established principles and norms, such as: 

• Putting people at the center of collective decision-making;
• Prioritizing people most in need;
• Ensuring that people can participate in the decision-making that affects them;
• Aiming for progressive realization;
• Allocating the maximum available resources to fulfilling rights; and 
• Instituting mechanisms for transparency and accountability. 

The human right to housing can be measured against established dimensions, including affordability, adequacy, suitability, equity, accessibility, cultural appropriateness, and security of tenure.

Here’s an example of how this could work.

In 2019, Maytree had the opportunity to work with the City of Toronto while it was developing a regulatory framework for multi-tenant houses (MTHs), also known as rooming houses or single room occupancy (SRO) housing. MTHs are some of the most affordable rental homes in the city. However, in many parts of Toronto, it is illegal to operate a rooming house – they are numerous, but illicit. By bringing them out of the shadows, the regulatory framework had the potential to ensure that rooming houses meet minimum habitability and safety standards, are accessible to people with disabilities, and are culturally appropriate. As importantly, people living in them could claim their rights as tenants (such as security of tenure). 

Our work with the City was on a human rights review, analyzing the elements of the proposal against the established dimensions of the human right to adequate housing. The human rights review provided a common goal to the various parties involved, including the fire, planning, licensing and standards, building, and housing departments. Public servants who participated in the analysis indicated that the process was not only not cumbersome, it was practical and useful to their work.

Despite this constructive process, the city council ultimately decided to defer voting on the regulatory framework due to the perceived unpopularity of rooming houses and the people who live in them. As a result of this failure of leadership, MTHs remain illegal and unregulated in many parts of Toronto, meaning that the people who live in them, at best, have compromised rights to their home and, at worst, continue to live in unsafe, insecure, or otherwise inadequate conditions. 

While the human rights review of the proposed MTH regulatory framework was a valuable proof-of-concept, it conspicuously lacked the meaningful participation of the people most affected by the proposed policy – the people who live in MTHs.

The lack of meaningful engagement of the affected people in most housing discussions is perhaps most egregiously demonstrated in the way that cities across Canada have dealt with people living in encampments in public parks. Encampments grew in size and visibility during the pandemic as the demand for outdoor public spaces grew and as services for people experiencing homelessness were strained.

The various responses were strikingly similar and based on enforcement – forcibly removing people who declined temporary shelter, and dismantling their tents and other living structures. This response amounts to criminalizing homelessness and violating people’s right to self-determination.

In contrast, a human rights approach would have focused on meaningful engagement with people who live in encampments. It would have started with the assumption that the people living in encampments are people with agency and dignity – people with rights. The role of the city would have been to build ongoing relationships with residents and, together, come up with feasible short- and long-term solutions. 

This type of participation or engagement, built on reciprocal and respectful relationships, is often conflated with “consultation,” and it is important to differentiate between them. What we typically see (if we see anything at all) is consultation – a one-time or time-limited involvement of people with lived experience. Most often held in the form of a session where people are asked to tell their story of housing insecurity or answer a set of questions about a proposed policy or program. To afterwards, rarely be contacted again.

This approach could be characterized as transactional. The needs of the consulter are prioritized over the needs of the consulted. Instead, rights-based participation relies on a relational approach and aims to balance out the power held by each party.

Human rights-based participation might be thought of as human-centred design “plus.” The human rights approach adds a layer of discipline by compelling us to ask specific questions about who we aim to serve and how a proposed design would align with human rights principles and practices. This additional layer can improve decision-making by clarifying goals,adding insight into people’s needs, and pointing towards systems-level solutions. 

The question of who is benefiting and whose rights are protected is key. A human rights approach gives priority to people most in need – these are the people who need urgent action. This could mean people in a certain income range, location, or demographic group.

Refugees, for example, are often overlooked in discussions about housing. In 2019, Maytree worked with the FCJ Refugee Centre in Toronto to understand the experience of refugees with housing systems and what could improve them. Then in 2022, we explored possible solutions with FCJ, focusing on how institutions could play a role.

These conversations identified a number of systems-level barriers, from the first 24-48 hours when newcomers arrive in Canada, to the temporary shelter system, to transitioning to the private rental market. Some barriers resulted from a lack of targeted services for refugees, or the lack of mandatory training for housing and shelter staff on the specific challenges that refugees face. Others were based in administrative processes – for example, access to some housing programs, such as social housing or housing for people experiencing domestic violence. Such programs can depend on immigration status and/or what type of immigration application a person has filed, or submitting tax documents that can be difficult for refugees to obtain. In other words, access to programs is based on status or paperwork rather than on need – their human right to housing is made secondary. Housing solutions must be intentionally designed to include refugees if they have any hope of serving them.

Conversations with FCJ and their clients also raised the themes of continuity and accountability. Advocates for refugees were frustrated by the need to educate officials over and over about the realities their clients face as staff moved or changed roles. This made it difficult for governments to be accountable to the community. 

The gains made on housing are vulnerable to more than mundane factors such as staff turnover. The fickle winds of politics mean that we must prepare for changes in government, recessions, and other factors that influence public spending and action. A human rights approach leads us to institutionalize practices and protect people in law. 

Not all of this falls on cities, of course. The federal, provincial, and territorial governments have a role to play, and they need to play ball with funding, policy and legislative tools to make solutions work at scale. But cities cannot wait until they have a perfect set of allies in other orders of government before they act. 

Cites have the power and potential to make real progress on the human right to housing. And they have the tools, too. The human right to housing is not an aspiration. It is an imperative based on principle that cities can and must put into practice.