Corps de l’article

Access to adequate housing in Canada can be precarious. This is not news. The made-in-Canada housing emergency is commonly condemned by both domestic and international observers[1]. The last ten years have seen “exploding housing prices […] renovictions and demovictions […] working people pushed out of some cities and a real estate investment bonanza[2]”. In the reaches of our most destitute communities, the situation is dire. The marginalized struggle to obtain any sort of housing for themselves and their families: homeless populations of Canada’s major cities have grown[3]. We see denial of basic human needs amidst prosperity and plenty.

Yet, our political and legal culture is well and long familiar with the notion of adequate housing as a material condition of well-being[4]. In 1976 Canada signed on to the United Nations International Covenant on Social, Economic and Cultural Rights, obligating its governments to observation of this right[5]. Our constitutional bill of rights, the Canadian Charter of Rights and Freedoms[6], protects, among other things, the rights to life and security of the person, as well as substantive equality guarantees[7]. Canadian civil society has been articulate in both describing the problem and calling concretely for solutions to the issues of housing inadequacy[8].

This paper continues analysis of a prominent, and not so recent, legal challenge to government failures to stem this housing crisis. Tanudjaja v. Attorney-General (Canada)[9] brought extensive argument that both government action and government inaction were responsible for the evolution and perpetuation of Canada’s housing failure. And, further, this pattern of state involvement and forbearance collectively infringed key sections of the Charter. The housing activists and experts involved in this challenge, too long witness to the suffering caused by housing insecurity and homelessness, had the temerity to take on the problem in its full cast, assembling a challenge that was complex and wide-ranging. However, the challenge was dismissed at a preliminary stage: its substantive arguments and evidence shut out of the courtroom, in decisions forged from judicial timidity and rigidity.

The themes that characterize rejection of socio-economic rights claims by Canadian courts are familiar[10]. But, in Tanudjaja, they reach peak expression. In result and argument, the case illustrates key aspects of how constitutional law to date has greeted social and economic issues: the courtroom is an inhospitable space for claims of material injustice and the redistribution of social rights[11]. This paper identified key devices by which government complicity in social and economic misery is insulated from judicial review, and from human rights accountability. These modes of argument ground the judiciary’s shut out of social and economic rights claims, effectively forestalling the role Charter rights, and our courtrooms, might play in opening up our legal and political conversations to broader contemplation of social injustice.

While Tanudjaja was decided some time ago now, the case threatens to be a salient jurisprudential low point for current ongoing and important Charter social justice litigation. The cumulative effect of the decisions in the case — the motions judgement, the Court of Appeal decision, and the refusal of leave to appeal by the Supreme Court of Canada — bodes badly for emerging litigation that is, like Tanudjaja was, timely and innovative. Thus, it is important at this juncture to keep in mind critical appraisals and, indeed, condemnations of the doctrinal formulations of the Tanudjaja judges.

1 Some Background

For too long Canadian governments have given insufficient attention to the issue of adequate housing provision[12]. The last few decades, up until very recently, were marked by federal government neglect of Canadians’ housing concerns[13]. Government withdrew from the task of housing provision, leaving the field to the market and developers[14]. The result is that, currently, the vast majority of households in Canada obtain housing through the market[15]. In 2004, two Canadian housing scholars noted that: “Canada’s housing system is now the most private-sector market-based of any Western nation, including the United States[16]”. This reflects Canadian governments’ historical inclination, particularly in the first half of the twentieth century: Governments have been, simply put, “slow to take action in the housing field[17]”. As well, the federal government has typically supported private homeownership ahead of social housing[18]. The result? The market has delivered housing in predictably unequal, inadequate, and discriminatory patterns. The financialization of housing that results means that residential property becomes an investment platform, at the expense of its value as a basic and necessary human good.

Some change, perhaps, is afoot. Recently, the federal government has taken up the challenge of housing provision and policy. The Liberal government, newly elected in 2015 and re-elected with a minority in October 2019, announced, in 2018, a national housing plan. This policy, the National Housing Strategy: A Place To Call Home[19], marked a welcome shift in attention to the issue[20]. In 2019, legislation implementing key aspects of the policy was enacted[21]. The federal government’s plans are far from ideal[22], but their formal articulation marks a reorientation on the part of that level of government to contemplate a role in the housing crisis.

The length of time it took for the federal government to reengage with the housing policy file has been frustrating for Canada’s housing advocates. For some time, advocates lobbied for policy change. On two occasions, a private member’s bill was introduced into the House of Commons that would have, if passed, required the, then Conservative, government to develop a national housing strategy[23]. Each time, the private member bill was effectively defeated[24]. This previous federal government — under Stephen Harper — was adamant — through action and statement — that housing and homelessness were none of its business[25]. In this stance, it continued the tradition of the John Chrétien’s liberal government, in power before Harper’s Conservatives[26].

As so often is the case post-1982, the political struggle, this time over housing provision, then switched to a different forum — the courts[27]. More specifically, a coalition of housing advocates and organizations launched a challenge under the Charter[28] in an attempt to force adequate government housing policy. The case was the Ontario-based Tanudjaja v. Canada (Attorney General)[29]. The claim Tanudjaja raised was bold — the applicants brought a smart and novel case. As I will discuss, it was a complex claim, paired with an ambitious remedy request. Like other claimants whose temerity has advanced Canadian constitutional law[30], these applicants crafted a constitutional challenge that brought evidence of significant, unaddressed injustice to the courtroom door. The challenge was far-reaching, attempting to forge new territory for overdue recognition of much neglected social and economic rights in Canadian society.

One would have hoped that the courts would have engaged with the challenge, leaving behind the judicial reticence that has been so often responsible for sidelining significant distributive and social justice questions[31]. Louise Arbour, after she left the Supreme Court of Canada and while she was High Commissioner of Human Rights for the United Nations, spoke of the problem: “The first two decades of Charter litigation testify to a certain timidity — both on the part of the litigants and the courts — to tackle head on the claims emerging from the right to be free from want[32]”. Arbour spoke these words in 2005, but the timidity she called out surfaced in Tanudjaja. The case foundered: shut out at the preliminary stage by government motions to dismiss that were successful at the first level and upheld by two of the three judges on appeal. Leave to appeal was refused by the Supreme Court of Canada[33]. The result is that the human rights crisis of housing neglected by politicians was, then, forsaken by judges[34].

2 The Case

Tanudjaja was initiated by four individual applicants. Each of these applicants had experienced, in different ways, significant housing insecurity. Together, the applicants represented distinct perspectives of the complex picture of groups most vulnerable to housing inadequacy. One applicant faced homelessness after being widowed, another after illness left him unable to work. Disability featured in another applicant’s story, while the fourth applicant was a single mother on social assistance, paying double the shelter allowance for rent[35]. Three of the applicants were waitlisted for subsidized housing. None was directly at fault for the housing insecurity they faced, challenging dominant notions that blame the poor for their predicament[36]. Supporting the individual applicants in the application was an Ontario based non-profit housing advocacy organization, the Centre for Equality Rights in Accommodation[37].

The initiating application was issued May 26, 2010, under section 24 (1) of the Charter, and, in essence, asserted that sections 7 and 15 the Charter[38] obligate each of the governments of Canada and Ontario to enact a strategy for ensuring affordable, adequate, and accessible housing for all. The application charged that the governments had, instead, created and sustained conditions that resulted in the current, ongoing, crisis situation of homelessness and severely inadequate housing. Thus, the governments were in breach of sections 7 and 15 in a manner unjustifiable under section 1 of the Charter[39].

The claim had three dimensions[40]. First, the applicants argued that governments amendments to existing legislation, policies, programs, and services had resulted in homelessness and inadequate housing. Second, such changes were put in place without adequate attention to their impact on access to adequate housing. Third, neither provincial nor federal governments had ensured that programmes in place protected the homeless or those most at risk of homelessness. In sum, the challenge targeted a range of government action and inaction that, it was claimed, undermined, in a fundamentally unjust manner, the life, liberty, and security of the person for those without adequate housing, infringing, as well, the right to substantive equality for these same individuals. The range of circumstances and histories the applicants brought to the challenge were instances of the various negative, rights-infringing outcomes claimed.

Distinctive to this claim was the absence of a simple focus on a single piece of legislation or policy. The range of programmes and policies cited as problematic was considerable — social housing funding, rent subsidy, residential tenancy law, rental conversion, deinstitutionalization, and income assistance, for example[41]. Similarly, as noted, the claim was also about both government action and inaction. Thus, the claim spoke to the overall approaches of the two governments under challenge and to the far-ranging impact of government approaches (both thought out and thoughtless) on housing security issues. Consequently, the claim took a somewhat innovative form. The applicants did not assert that the provision of housing or subsidies for housing were constitutionally mandated. They did not, either, ask that the governments be judicially ordered to offer a specific benefit. Instead, the focus was on government creation and amplification of the conditions that underlie housing insecurity, conjoined with ongoing government failure to address those conditions with the kind of systemic policy such a problem required[42].

The remedy sought reflected this catalogue of cumulative constitutional missteps, paralleling the three-part structure of the substantive claims. First, and most direct, the applicants requested that the court issue a series of declarations detailing how the governments were in breach of their constitutional obligations under sections 7 and 15, including the charge that governments have created conditions of housing insecurity and failed to implement effective strategies aimed at reducing and eliminating housing insecurity. The applicants also asked for an order that obligated the governments in question to implement housing strategies that would reduce and eliminate housing insecurity. Such strategies should be developed in consultation with affected groups and contain a variety of accountability measures ensuring efficacy and transparency. Last, the applicants requested that the Court retain supervisory jurisdiction to ensure proper implementation of the constitutional obligations informing the orders[43].

The choice of remedial requests was purposeful, reflecting the character of Canada’s housing crisis. Housing insecurity at large — its causes, manifestations, and potential solutions — is a “pixelated” picture[44]. The many groups experiencing housing crisis often share little in common other than lack of access to adequate, affordable housing. No one policy solution will address all elements of the crisis and cover all groups facing housing insecurity. Too simple or singular a remedial response risks “decontextualised and abstract interpretations of the right [to housing][45]” that, at best, can provide a “floor, but [also] a ceiling” to equality and inclusive social citizenship[46].

In May 2012, two years after the Notice of Application had been filed, the federal and provincial Attorneys General moved for dismissal of the application for failure to disclose a cause of action[47]. The governments asserted that, among other things, it was “plain and obvious” that no reasonable cause of action was disclosed and that the issues raised were not justiciable. Ontario’s criticism that the Application was “in effect an effort to constitutionalize a right to housing[48]” captured the tenor of the government objections. A motion to dismiss of this sort is a pre-emptive strike. The case is stopped in its tracks; the substantive arguments of the application are never fully and complexly explored, at least until another, future case manages to get by this hurdle.

2.1 The Ontario Superior Court

In response to the governments’ motions, the application was forcefully dismissed by Justice Lederer of the Ontario Superior Court[49]. A number of concerns shaped Lederer J’s reasons for dismissal: breadth of considerations relevant to the policies and strategies challenged by the Applicants; no precedent for a right to housing; radical change requested in Charter law; imposition on the public purse; and institutional boundaries[50]. Two themes predominate: the absence of established protection for positive rights in relation to either section 7 or section 15 and the claim of non-justifiability. First, Lederer J reads the Charter rights in play narrowly and parsimoniously, asserting that the applicants are barred from judicial review largely because of the novelty, ingenuity, and scope of their rights claims. It is, he finds, settled law that neither section 7 nor section 15 speak to the type of claim this challenge advances (of course, the manner in which the motions judge dismisses the application is ironic. Lederer J’s judgment is 56 pages long: “a lengthy argument on the merits to show that there is no argument on the merits[51]”).

Lederer J is concerned about the breadth and number of policies at issue in the challenge and over which remedial supervision is requested. He sums up the challenge as, effectively, a broadside against “how our society distributes and redistributes wealth[52]”. These may be critical questions, he continues, “but the courtroom is not the place for their review[53]”. The remedial request too suffers the same fate, condemned as “the offering up of a Trojan horse[54]”. The sweep of challenge is too wide — both in what the applicants challenge and in what the applicants want.

2.2 The Ontario Court of Appeal

The applicants turned to the Ontario Court of Appeal to appeal dismissal of their application. That court’s decision was released in early December 2014. Two of the justices, Pardu and Strathy JJA, rejected the appeal; Feldman JA, in dissent, would have allowed the appeal and sent the challenge to the lower court for adjudication on the merits.

The majority’s dismissal of the appeal turns on the question of justiciability[55]. Pardu JA writes the judgment and describes her conclusions as flowing from: “a normative inquiry into the appropriateness as a matter of constitutional judicial policy of the courts deciding a given issue, or instead deferring to other decision making institutions of the polity[56]”. This is a rather obtuse way of capturing concerns about the separation of powers: the appeal is claimed to hinge on the question of whether or not this is an issue that belongs in the political realm or one with sufficient legal cast to warrant judicial consideration. The focus is on the distinction between legal and political questions, situated within the larger question of judicial institutional capacity[57]. Judicial competency rests on finding sufficient legal content to the question at issue[58].

The majority thus concluded that there was insufficient legal content to engage the court. That is, the questions the challenge raise are not justiciable, as the majority understands and deploys that notion. The majority also claimed that their decision avoids the contested issues of, first, positive versus negative obligations[59] and, second, novel claim making under the Constitution, focussing, instead, on justiciability alone. Yet, their consideration of justiciability imports positions on each of these issues. Indeed, it is from the perspectives of these two issues that the dissenting judgement strongly sets up its opposition.

The argument that policy, unrealized in some form of government action, is immune from Charter standards rests on the assertion that, unless a government positively acts, a policy decision to not act is beyond Charter purview. This rigid separation between positive and negative government action reflects a dubious consensus in Canadian constitutional law. Commentators and judges themselves increasingly question the distinction[60].

A claim counter to this, one that references a general positive right to housing under section 7, is, the majority asserts, a “doubtful proposition[61]”. There is, Pardu JA asserts, no freestanding right to housing[62]. But, if the point is not certain law, as the majority’s choice of language indicates, then, according to law that is certain[63], the case should precede. Surmises as to legal outcomes as yet undecided, and in response to issues framed in novel ways, are illegitimate bases for preliminary dismissal. An open question of constitutional rights interpretation must be allowed to go to argument on the merits.

The majority reduces the application claim to, essentially, “that Canada and Ontario have given insufficient priority to issues of homelessness and inadequate housing[64]”. The claim is thus transduced into a simple challenge focusing on government policy untranslated into law or state action. The key point for the majority appears to be that no one law or government action is singled out by the challenge. Such a singular focus, absent from this case, is, the majority argues, “an archetypal feature of Charter challenges under s. 7 and s. 15[65]”. For these judges, the absence of such a focus leads to the conclusion of non-justiciability[66].

Worth noting, with concern, is that this analysis risks placing beyond the reach of constitutional review any collection or group of government actions. It is an odd logic — it implies that the more government action pulled into critical focus, the more the label of policy divination best left to the legislative branch attaches. More becomes less — to the point of disqualification.

This characterization of the applicant’s claim — as simply policy focused — is wrong. The claim is more complex and faceted. It takes up a broad range of government actions and inactions — all with, the applicants claim, significant implications for section 7 and section 15 rights. David Hulchanski, a University of Toronto housing researcher, makes this point differently. He has argued that, in framing the housing problem, it is essential to acknowledge that Canada has a housing system: “each country develops a [relative unique] housing system — a method of ensuring (or not) that enough good-quality housing is built, that there is a fair housing allocation system, and that the stock of housing is properly maintained[67]”.

Canada’s system is the product of the package of actions and inactions that the Tanudjaja complaint highlights. The output of this system is the housing inequality and insecurity that lies at the base of, and is documented by, the Tanudjaja complaint. Hulchanski’s specific point about the housing system resonates with the larger observation that there is no neutral place for governments to occupy in relation to such a central feature of Canadian society. What gets done, and not done, in all of the policy areas that impinge on housing provision, set in place one or another set of conditions for that housing provision. It is a point central to the Tanudjaja claim: what governments do and do not do across a broad sweep of policy can congeal into coherent and consequential social outcomes for a particular, central social concern[68]. And, government, thus, will be deeply implicated in this outcome, because of this complex of actions and inactions, despite government lawyers’ protestations to the contrary.

Other commentators make equally pertinent observations about the housing system in Canada, and its impact. In an article on Tanudjaja, a group of housing experts notes that this sort of human rights harm is “slow violence” by existing institutions and policies[69]. The national housing crisis is “a socially constructed disaster[70]”. The harmful actions at issue are “neither spectacular nor instantaneous but instead incremental[71]”. It is not a single event but, rather, the product of a series of laws, policies, and omissions — none of which alone accounts for the character and depth of the crisis[72]. The different factors coalesce, and the emerging human rights offence is clear. This reflects the complexities of modern administrative states and the mode of government that the twenty-first century demands. Charter law ought not to put this reality beyond the scope of judicial review. Yet, this is what the motion to dismiss here does.

The issue of how to (or whether to) prune a thicket of state action and inaction under Charter analysis has come up before. As Robert Leckey notes, assessing complex legislative schemes under the Charter is a tricky question of legal craft[73]. Leckey’s analysis looks at the equality family law case of Quebec v. A.[74]. From that context, Leckey argues that “perspectival issues — forest or trees […] — matter[75]”. While his purpose in that discussion varies from mine here, both of us would have a court engage more forthrightly with the issue of scale[76]. Shifting the judicial lens from close up analysis of a specific piece of government action to a wider view of a collection of government action and inaction can change the constitutional harms brought into focus. Moreover, courts need consistency across the implications of scale or focus. If, as was the case in Withler v. Canada (Attorney General)[77], the Supreme Court can disentitle an individual complainant on the basis that her rights claim had too narrow a frame — because the claim ignored other legal elements that modify or compensate for the harm cited — then surely it cannot also be the case that a court can turn away, on preliminary motion moreover, a challenge because the issue is framed as one targeting a systemic and collective understanding of governmental impact[78].

When the Tanudjaja Court of Appeal majority mischaracterizes the nature of the claim the applicants make as one focused simply on the absence of policy, the judges fail to appreciate the range of scales at which Charter analysis has and must occur. The claim simply asked the court to recognize that the basis for the breach of constitutional obligations by the governments cannot always, and thus must not need to be, construed as a single government action. On occasion, probably even often, it is the interrelated and systemic effects[79] of a whole course of government actions and inactions that construct the crisis.

Finally, the Court of Appeal majority takes issue with remedial request[80]. But, surely, this is not a reason to dismiss a challenge. Choice of remedy is a distinctive stage and allows judges to attend to concerns of institutional competency and appropriateness separately as the last stage. Requested remedy is an inappropriate basis on which to determine justiciability of substantive arguments about rights protection.

Feldman JA wrote the minority judgment and would have found that it was an error of law to strike this claim at the pleadings stage. She reminded us that the test for striking the application is whether it is “plain and obvious” that the claim is doomed[81]. Is the claim “certain to fail?[82]” Feldman JA adopts established law in emphasizing that “[t]he motion to strike should not be used, […] as a tool to frustrate potential developments in the law[83]”. And, in relation to the motions judge’s reasoning, Feldman JA found that the lower court’s discussion of the section 7 claim was flawed in four ways: misstatement of the appellants’ claim; misstatement of section 7 jurisprudence; definition of section 7 jurisprudence inappropriate to decision-making in a motion to strike; and, prevention of consideration of the full evidentiary record[84]. At fault was the motion judge’s extensive doctrinal interpretations and resolutions of law not yet settled, particularly in reference to the fact the Supreme Court has left as an open, future question, the issue of positive obligations under section 7 of the Charter[85]. This is, she asserted, inappropriate in a preliminary motion to dismiss. She references the 16 volumes of evidentiary record left unexaminable, volumes that focus, in part, on whether or not special circumstances exist for inclusion of positive obligations under section 7[86]. The appeal judge was similarly critical of the motion judge’s handling of the section 15 claims[87].

In her discussion of the justiciability concern, Feldman JA argued that: “to strike a serious Charter application at the pleadings stage on the basis of justiciability is therefore inappropriate[88]”. Indeed, she emphasized that striking a Charter claim will seldom be appropriate. A novel form of the claim may raise tough procedural and conceptual challenges for both rights and remedial argument but novelty alone cannot justify dismissal[89]. Feldman JA concluded that the “housekeeping” measure of dismissal for lack of reasonable cause was improperly wielded by the motions judge and unwisely upheld by her Court of Appeal colleagues.

Commentators on the Court of Appeal result elaborate the issues Feldman JA raised[90]. This case was initiated by a notion of application, not a statement of claim. A notion of application does not detail the material facts to the claim, instead simply setting out general legal grounds for the claims. The material facts are determined through the affidavits that are the evidentiary record of a motion of application. But, no evidence can be before the court on a motion to strike and thus the judge in such motions operates in a kind of factual vacuum. This makes judicial restraint in relation to these motions all the more essential.

Confounding these concerns, of course, is the Supreme Court of Canada’s refusal to grant leave to appeal from the Court of Appeal judgment[91]. We are left with a sharp “door closing” on the rights at issue here — a slam, really, given that this is a preliminary motion[92]. Feldman JA’s dissenting opinion captures the problems with dismissal, but the Supreme Court’s refusal to engage with the case is rebuke to that opinion.

I want to return to the idea that Tanudjaja is not simply a case that, on its own terms, is disappointing. As a new round of litigation emerges, cases that also push against the boundaries of Charter rights traditionally conceived, the lessons of the numerous critiques of Tanudjaja must be learned. Three themes emerge to watch out for: hostility to novel challenges; rigid formulas of justiciability; and pretences of progressive change. I discuss each of these in what follows.

3 A Novel Claim

The idea of Tanudjaja as a novel claim featured largely: explicitly in the motions court and, I would argue, implicitly in the majority judgment at the Court of Appeal. The label of novelty informed the conclusion that no cause of action — no basis in law — was present in the claim. The motions to dismiss, to repeat, were successful in their argument that it was “plain and obvious” no reasonable cause of action was disclosed and that the issues raised were not justiciable.

Reference to “plain and obvious” in the governments’ motions came from current jurisprudence on the issue of dismissal for failure to disclose cause of action. In the leading Supreme Court of Canada case on this issue, Hunt v. Carey Canada Inc.[93], Wilson J, writing for the Court, stated the test for dismissal as follows: “[A]ssuming that the facts as stated in the statement of claim can be proved, is it ‘plain and obvious’ that the plaintiff’s statement of claim discloses no reasonable cause of action? […] [I]f there is a chance that the plaintiff might succeed, then the plaintiff should not be ‘driven from the judgment seat’[94]”.

In a later case, through the pen of the Chief Justice, the Court cautioned that the power to strike must be carefully deployed: new and novel developments in the law are standard, and valued. Many such developments result from actions initially deemed hopeless and challenged by preliminary motions to strike[95]. Consequently, the Chief Justice stated, “[t]he approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial[96]”. To this is added the caution: “Actions that yesterday were deemed hopeless may tomorrow succeed[97]”. The paragraph from Wilson J’s judgment in Hunt quoted above continues: “Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case[98]”.

The clear message from the Supreme Court is that dismissal for failure to disclose a cause of action must be wielded in only specific and clear circumstances. It cannot be determinative that the claim at issue has not yet been recognized at law. Consequently, courts are warned to err on the side of generosity toward novel claims, permitting a novel but arguable claim to proceed[99]. Recourse to a motion to strike may stifle new and important developments in the law[100]. And the commitment to a progressive, evolving interpretation of our constitutional documents, long a part of Canadian constitutional law, will be undermined[101].

The result in Tanudjaja places at risk the principle of constitutionalism: governments rule under the Constitution and to ensure this there must be reasonable opportunity for full assessment of all aspects of government through judicial review[102]. As Cromwell J wrote in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society in the context of the preliminary issue of standing: “state action should conform to the Constitution and statutory authority and […] there must be practical and effective ways to challenge the legality of state action[103]”. Dismissal of novel claims frustrates Charter scrutiny. It impedes the evolution of our constitution, risking constitutional law that is irrelevant to pressing justice issues about contemporary, emerging patterns of government.

4 Ali Baba and the White Queen

As mentioned, Tanudjaja illustrates two further techniques by which social and economic rights claims are weakened: first, entry conditions to judicial review and, second, progressive promises never delivered.

Successful judicial review cases require conformity with the traditions of entry to the judicial arena: “Legal systems and processes have their own incantations that must be uttered, acts that must be performed, and conditions that must be present, before the doors of the courthouse open[104]”. Disclosing a cause of action is one of these conditions, as is standing, ripeness, and other preliminary issues. While necessary to structure case load and adjudicative conditions, these conditions too often function to ensure that significant challenges to power structures have a hard time getting in the courtroom door.

In elaboration of this idea, Melinda Harm Benson casts the courtroom as a central space of law, entry to which is policed. There can be material barriers (metal detectors), architectural barriers, performative barriers (security guards) but there are also discursive barriers[105]. The last type of barrier, Harm Benson calls “rules of engagement”: the incantations, acts, conditions that determine who enters a particular legal arena. Like Ali Baba, the best-known tale in the collection One Thousand and One Nights, successful entrants have key words to utter. This requirement is exclusionary — it polices the space of legitimate legal argument.

Courts are, in the words of Harm Benson, one of the “spaces of law[106]”. They are “putatively spaces for finding (legal) truth and rendering justice. Access implies the possibility of making claims, being heard, accomplishing redress[107]”. Judges, within that space, are gatekeepers, determining what values, experiences, and arguments are recognized[108]. Consequently, Harm Benson describes judicial review as a “cascading world-making enterprise[109]”. By this she means that what happens in a court of law will have outcomes in other spaces; it helps shape the world. Judicial review, then, is part of the judiciary’s “world-making capacities[110]”. In courts, and through judicial decisions, “the force of power is channelled one way rather than another[111]”.

In Tanudjaja, we see particular “rules of engagement” playing a “dispositive role[112]”, shortsheeting litigation that sought to redirect how we understand government responsibility for a large system of injustice. As outsiders, the applicants lacked the legal “Open Sesame” for gaining access to a space that promised authoritative manifestation of their reality. Recall that the motions judgment left a 10,000 page evidentiary record unexamined, with an impressive range of expert testimony in it. Exclusion from judicial review, in this case, reinforced marginalization. And, it tells us, that judges too quick to dismiss cases that challenge too much the norms and limits of past cases, risk stacking the system of judicial review against those who need it the most.

The second maneuvre reinforced in Tanudjaja is one that allows the illusion of progressive constitutional law to persist, in the face of constant denial of progressive change. The jurisprudence has teased substantive and material content to the rights of security of the person and equality. But, at every turn where that possibility presents itself, these claims are defeated. It is generally potentially possible, but concretely, in any specific instance, beyond reach.

Lederman J. took as settled law the proposition that section 7 did not permit positive obligations. But, recall this quote from McLachlin CJ’s judgement in Gosselin: “I leave open the possibility that a positive obligation to sustain life, liberty, or security of the person may be made out in special circumstances[113]”. As well, it bears noting that the types of section 7 harms cited in the Tanudjaja claim have all been recognized in other Supreme Court of Canada cases[114]. In addition, we are told repeatedly that the interpretive approach to Charter rights must be large and liberal, a “generous” account of what a particular right protects[115].

To quote the White Queen: it has been “jam to-morrow and jam yesterday — but never jam to-day[116]”. The promise of positive rights — of a constitutional law sensitive to the social and material realities of Canadian society — remains — but it is a promise whose edges are fraying.

Conclusion

Tanudjaja recedes into the past. Why, one might ask, is continued examination of this case important? This paper, I hope, answers that question. The case reveals important lessons and cautions. It is a “perfect storm” of how badly courts can handle social and economic rights claims. And it stands in the way of new attempts to forge progressive constitutional law.

On October 25, 2019, a new Charter challenge was filed in the British Columbia Supreme Court. That case, La Rose v. Her Majesty the Queen, takes on the federal government’s failure to restore and ensure a stable climate system[117]. This too is a novel claim. The fifteen claimants are all youth, suffering in various ways the effects of our planet’s climate crisis. Like the claimants in Tanudjaja, these individuals represent full range of the crisis the Court is asked to appraise. The La Rose claimants also name a range of government actions and inactions as the causes of the harms they suffer. Further, the remedial request is that the governments “be required to develop and implement an enforceable plan […] necessary to achieve GHG emissions reductions consistent with the protection of public trust resources subject to federal jurisdiction and the plaintiffs’ constitutional rights[118]”.

The Government’s response to this new challenge is dishearteningly familiar. As in Tanudjaja, the government asks, among other things, that the court find the claims non-justiciable and hold that neither section 7 nor section 15 creates positive obligations[119]. The case threatens a simple rerun of Tanudjaja. Yet, once again, the issue at the heart of the challenge is large and important.

I have elsewhere ruminated on why the lack of success of social and economic rights claims is not surprising[120]. Judicial reluctance to step outside the bounds of “liberal or neo-liberal conceptions of property and negative freedom[121]” runs strong. As commentators, we must be clear that judges who assert the mythology of law as apolitical and rights as ideally non-distributive and negative are responsible for ensuring that social justice under the Charter will never amount to much.

But, in this comment, the animating themes at play are applicant courage and judicial reticence. The applicants’ claim in Tanudjaja is bold and of a novel cast. But, its focus is on a fundamental justice issue — the denial of housing — and its formulation is necessary to reflect the nuance and complexity of the circumstances that shape and determine this injustice. That courts would shut down consideration of the claim — with the extent of evidentiary and intervenership support the claim had — signals a judiciary spooked by its own Charter shadow. More pragmatically, dismissal of this case — and the manner that dismissal took — illustrates well the substantive dangers of preliminary motions to constitutionalism and to the purposive, progressive evolution of the Constitution. Entry conditions to judicial review must not determine that a whole range of substantive social justice issues are barred from one of the spaces of law where “truths” are made and channel out to shape the world. And, at some point, the courts have to deliver on promises made to open up those “truths” to reflect the realities of all Canadians. It will take novel claims, recognized and acted upon, to disrupt the status quo. There is much at stake in debunking the arguments that ease judicial dismissal of the social and economic claims that ask government to address the deep problems of our society and world.