Why Canada needs to recognize a charter right to the city

This column is an opinion from Charlotte Dalwood, a juris doctor student at the University of Calgary's Faculty of Law. For more information about CBC's Opinion section, please see the FAQ.

Canadians have a right to Canada's cities. And downtown Calgary, in which 32 per cent of all office space currently sits empty, is the ideal place for Canada's governments to begin recognizing that right and making it a reality for all.

There is an urgent need for governments to do so given the ongoing national affordability crisis and its disproportionate impact on society's most vulnerable members.

Nearly one-third of Canadians lived in unaffordable or unsuitable housing pre-COVID, with nearly 12 per cent of Canadian households — over 1.6 million people — experiencing "core housing need," in that they were also unable to afford alternative accommodations elsewhere in their community. In practice, moreover, the burden of unaffordable shelter costs fall disproportionately on the shoulders of people who are marginalized in other ways: LGBTQ2S+ Canadians, for example, have historically been overrepresented amongst those experiencing homelessness and core housing need.

The situation is hardly improving as Canada comes out of the pandemic. Housing prices across the country are higher than ever before. In the most expensive areas, it is common for rent and utilities to consume 50 per cent or more of renters' income; by comparison, housing is deemed affordable when it costs less than 30 per cent.

A constitutional crisis

This crisis is a constitutional as well as an economic problem, one that reveals just how weak the Charter of Rights and Freedoms is in the absence of strong social programming. 

Take mobility rights.

Section 6 of the charter protects Canadians' freedom to move to, and pursue gainful employment in, the province of their choice.

This right is not absolute. The constitution specifically permits provinces to regulate Canadians' ability to make a living within their borders provided that, in so doing, they do not enact laws that discriminate primarily on the basis of a person's current or former province of residence. 

But this is not a licence for governments to legislate in such a way that only the wealthiest and most privileged are ever actually able to exercise their freedom of interprovincial movement. 

Mobility rights must be reconciled with the charter's other protections. And under the charter's equality guarantee, every Canadian is still entitled to "the full benefit of the law," including the full benefit of the constitution.

Freedom to live where we choose

This means, among other things, that every Canadian is entitled to choose the city they want to call home, regardless of their background, financial status, or other markers of personal identity.

The reason is simple. Cities are provincial projects, created and governed by legislation like Alberta's Municipal Government Act. Canada's provincial governments are thus constitutionally obligated, as they are when undertaking any other act, to develop municipalities in a way that is substantially equitable.

In other words, if governments are going to make the benefits of urban life available to some Canadians, they must make those benefits available to all. This includes, where necessary, taking specific steps to ensure those benefits are available to disadvantaged Canadians in practice as well as on paper.

As the housing affordability crisis has made clear, that has not occurred.

With more than 27 million Canadians — over 70 per cent of the country's total population — living in metropolises of 100,000 residents or more, social and economic opportunities are concentrated in these large urban centres. But with rising inner-city housing costs, the ability of those without financial means to cross provincial lines in pursuit of these opportunities is increasingly limited.

The solution is to read a right to the city into the charter.

No formal constitutional amendments would be needed to do so. All that would be required is for courts and governments to begin interpreting the charter's protections in a manner consistent with Canada's current urban realities. 

This means recognizing that the constitution's guarantee of free mobility does more than simply prevent the provincial and federal governments from overtly banning interprovincial movement. It also imposes a duty on provinces especially to take positive action to ensure it is viable for even the most marginalized Canadians to relocate across provincial borders to the cities where opportunities for economic advancement most abound. 

Discharging that duty requires, at a minimum, that governments make inner-city homes accessible to all, an approach to upholding charter freedoms that is achievable through coordinated investment in public housing.

Calgary's struggling downtown core is an ideal site to pilot such a project.

Under its current strategy, the city aims to provide non-market homes to six per cent of Calgary households (putting it on par with the national average). In order to achieve this goal, the city plans to both develop new municipally owned properties (under the management of the Calgary Housing Company) and to partner with private developers and non-profit organizations contributing to the affordable housing supply.

Strategy falls well short

While a start, this approach is far from being a comprehensive long-term solution to the housing crisis, locally or nationally.

For one thing, non-governmental entities are not subject to the same degree of legislative and constitutional oversight as governmental ones. This relative lack of accountability means private and non-profit organizations may or may not administer the affordable housing under their control in a way that is truly equitable.

For another thing, the city's strategy falls well short of meeting the shelter needs of the estimated 20 per cent of households in Calgary alone that the city itself estimates are struggling to pay for their homes.

It certainly does not make interprovincial moves to Alberta a realistic option for those struggling to get by elsewhere in the country.

A better plan would be to prioritize affordable developments that are government owned and directly managed; free, or nearly so, at the point of delivery; and sufficient to cover substantially more than Calgary's own affordable housing needs.

The city could start by establishing a fund to acquire downtown properties as they come on the market, and converting into residential units the estimated six million square feet of empty office space that is currently suited for such a repurposing.

Much more investment needed

This would require an investment well beyond the $45 million the city has already committed toward incentivizing the private sector to redevelop inner-city buildings as apartments or condos. Indeed, it would require substantial financial cooperation with the provincial and federal governments.

But as a government project, housing managed under this initiative would fall squarely within the charter's protections, ensuring that disadvantaged Canadians, especially, have fair access to it.

Moreover, the legal and human benefits would be substantial, particularly if the cost of living in these homes was entirely covered by taxpayer dollars. 

Under such a scheme, those with the means to pay — the wealthiest Canadians — would be asked to do so. Those without would be given a realistic way to act on their constitutional right to participate in downtown Calgary's eventual economic revitalization.

And the city would move Canada one step closer to making the charter's protections meaningful for all.

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