Will a bill of rights make any difference?
The feds are looking to expand tenant protections. There’s just one problem:
The provinces exist, and you can’t get around them with lofty words at press conferences
In 2017, the federal government, under Prime Minister Justin Trudeau, announced that housing would be recognized as a human right under federal law. It was a declaration that activists had wanted to hear from a prime minister’s mouth for years, and it was a substantial political victory when they prevailed.
That was almost seven years ago, and if anyone wants to argue that “housing as a human right” substantially improved actual housing outcomes in the real world… well, I’d say they need to check there stats and do some research. A federal “right to housing” hasn’t, for example, stopped municipalities and provinces from clearing homeless encampments, despite sternly worded reports from the federal housing advocate.
The problem with trying to the situation when it comes to housing as a human right at the federal level is that, in short, there’s no constitutional basis for the federal Parliament to do so. It’s kind of a major flaw in the plan.
So the Liberals engaged in a bit of a bait and switch: in 2017, they loudly proclaimed their fidelity to high principle; two years later, the legislative language approved by the Commons and the Senate was far more limited. The 2019 National Housing Strategy Act declares that the policy of the government of Canada is to “recognize that the right to adequate housing is a fundamental human right affirmed in international law.” But this is the legislative equivalent of window dressing and has little legal force, even in areas of federal jurisdiction.
I’m mentioning this underwhelming episode from the past decade because it’s important to understand in the context of the announcement, last week, that the federal government is introducing a “renters’ bill of rights,” as well as other measures that Finance Minister Chrystia Freeland will formally present in the federal budget later this month. To be clear, renters in Canada these days need every bit of help they can get and then some, and there are some measures (more on that later) where the feds have a real role. But any attempt by Ottawa to formulate a genuine bill of rights for renters is going to run headfirst into the same constitutional problems that invalidated the “human right” declaration seven years ago.
That problem, in short, is that in Canada, (a) the provinces exist, (b) regulating property rights is unquestionably their jurisdiction, and (c) you can’t get around (a) or (b) with lofty words at press conferences.
So the federal government is attempting a policy hack. It won’t try to impose a renters’ bill of rights directly; one will instead be “developed and implemented in partnership with provinces and territories.” We feel obliged to ask the prime minister: Have you met the premiers of this country lately? Do they, on average, seem predisposed to work constructively with the federal government on literally any topic imaginable?
It is theoretically possible that, with federal leadership, the provinces will agree to a uniform set of tenant and landlord regulations that would legally entrench meaningful rights for renters across the country. It’s also possible that I, without any degree in medicine or science will find a cure to every disease and disorder known to mankind. But that wouldn’t be a wise bet.
That said, there are some high points in last week’s federal announcement where the feds are on more solid ground. They’re pledging $15 million in grants to legal-aid organizations to better defend tenants against unjust evictions — the only problem with this announcement is that the sum could be tripled and still be insufficient, given the need. It is, however, something the feds can do within their powers.
Then there’s the announcement that the federal government will work with various stakeholders in the financial sector to ensure that renters are credited with their history of on-time rental payments for their credit scores. The government will do this by amending the existing Canadian Mortgage Charter. The catch: the CMC isn’t a law and has no power to compel banks to follow the federal rules, despite the fact that banks really are clearly federal jurisdiction. This isn’t a case of Ottawa being barred by the Constitution from doing more; it’s made the choice to handle Bay Street with kid gloves.
Does any of this matter? If the renters’ bill of rights isn’t actually going to protect people’s tenancies, it’s unlikely to do any new harm, either. But like the previous human-rights declaration, I’d argue people are being fundamentally misled both about how effective these declarations are and where they should really be putting their political energy instead. The housing crisis in Canada is going to be resolved, one way or another, largely at the provincial and municipal level. While federal policy can help, it’s not going to be the solution.