HIV and the Right to Housing: An Intro to the Tanudjaja Case (Part 1)

November 13, 2014

In Canada, November 22^nd is National Housing Strategy Day, an important time to reflect on housing and homelessness in our country. #NationalHousingDay — You can read more here.

There’s nothing quite like the feeling of coming home. Sliding the key into your door lock, you enter a space that’s yours and protects you from the outside world. Most of us take this comfort for granted, yet it is estimated that 1.3 million people have experienced homelessness in Canada at some point in the last five years.[1]

With the lack of access to affordable housing that we are experiencing and the erosion of income support programs, Canada is now in the midst of a severe housing crisis. In Ontario alone, more than 140,000 households are on the waiting list for affordable housing.[2] Moreover, Canada does not have a national housing strategy to remedy the situation, the only such country in the G8 family.[3]

The inaction of Canada and the Province of Ontario was formally challenged in May 2010 by four individuals who have experienced and continue to experience homelessness or extremely insecure housing. With the support of the Centre for Equality Rights in Accommodation (CERA), Jennifer Tanudjaja, Ansar Mahmood, Brian DuBourdieu and Janice Arsenault (“the applicants”) brought a challenge before the Ontario Superior Court alleging that the governments’ failure to implement effective strategies to reduce and eliminate homelessness and inadequate housing violates their rights to life, liberty and security of the person guaranteed by section 7 of the Canadian Charter of Rights and Freedoms, and their right to equality guaranteed by section 15.

The applicants are seeking both a declaration that acknowledges the responsibility of the governments in the current crisis and an order that would compel Canada and Ontario to implement effective national and provincial strategies to reduce and eliminate homelessness and inadequate housing. The applicants are not saying that the governments of Canada and Ontario have a duty to construct housing for everyone; instead, this case is about the duty of governments to implement policies and enact legislation to address the current crisis. It highlights that government action (and inaction) has actually lead to, supported or sustained homelessness and inadequate housing in this country.

But what does this Charter case mean for people living with HIV? The link between inadequate housing and poor health is well established: housing is a key determinant of both physical and mental health.[4] According to the North American Housing and HIV/AIDS Research Summit, “. . . [h]ousing instability is […] both a cause and an effect of the ongoing AIDS crisis in North America.”[5]

The homeless population faces higher rates of HIV infection than the general public, and people living with HIV have a harder time finding accommodation due to HIV-related stigma and discrimination. Furthermore, people living with HIV have particular needs that require the stability and safety of adequate housing. For example, antiretroviral medications must often be refrigerated and follow a strict routine, which is difficult without a home. Whereas HIV once inevitably led to death, it is now considered a chronic manageable condition if effective treatment is properly followed; therefore, being adequately housed may mean the difference between life and death for people living with HIV.[6] For these reasons and many more, housing has been described as both HIV treatment and prevention.

Unfortunately, in Tanudjaja v. Canada, the federal and provincial governments brought a motion to dismiss the case outright, which was granted by Justice Lederer of the Ontario Superior Court. This decision meant that the case would come to an end, without the evidence ever being presented or a judgment issued. The applicants decided to fight to have their day in court and appealed this decision.

Given the importance of housing for people living with HIV and the legal significance of the decision on the motion to dismiss, the Canadian HIV/AIDS Legal Network intervened, as a member of the ARCH Disability coalition (which included the ARCH Disability Law Centre, the Dream Team, the Canadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario). Tanudjaja v. Canada is now before the Ontario Court of Appeal.

The longstanding apathy of the Canadian government, coupled with its determination to strike the Tanudjaja case without even hearing the applicants’ arguments, clearly shows that Canada is not fully committed to a society where equality, safety and dignity prevail. This case has the opportunity to improve the lives of many Canadians, including thousands of people living with HIV. It may determine whether our courts can be used effectively by marginalized groups whose human rights are being compromised by government action (and inaction).

Read part 2 of this blog

Thanks to Isabelle Rémillard, McGill University law student intern, for drafting this blog entry.