Homelessness

35,000 Canadians are homeless every night, and 235,000 Canadians experience homelessness every year.^{Footnote 2} Those who lack a roof over their heads are left to shelter themselves from the elements, and even those in homeless shelters live under unenviable conditions.^{Footnote 3} Often, homeless people suffer from physical and mental illness, insufficient social support, and joblessness. In many contexts, given the disproportionate impact of regulation on homeless people, they have little choice but to break the law.^{Footnote 4} But what exactly is homelessness?

There is wide consensus that homelessness consists in more than just lacking shelter.^{Footnote 5} On one view, homelessness consists in lacking “ontological security”—a subjective sense of well-being, identity, and belonging.^{Footnote 6} However, without denying that homelessness might contingently be linked to lacking ontological security, a risk is that identifying homelessness with it conflates homelessness with other issues. In this paper, I instead adopt a distinctively legal definition: homelessness consists in the lack of legal rights to property.^{Footnote 7}

A compelling thought motivates this definition: homelessness consists in unfreedom, where we understand freedom in the republican sense of non-domination, so that one is unfree insofar as one is subject to another’s will.^{Footnote 8} The republican sense of unfreedom stresses potential interference rather than actual interference, as the master-slave relationship illustrates. Clearly, if the master physically restrains his slave, the master subjects his slave to actual interference (so that the slave is unfree at least in the negative sense). But even if the master does not actually physically restrain his slave, and lets his slave go to the market on his own, there remains an important sense in which the slave remains unfree. Insofar as the master can, when he wishes, impose constraints on the slave, the slave remains subject to potential interference even if not actual interference. The slave is dominated—subject to his master’s will. He is unfree, in the republican sense.

The definition of homelessness I am adopting captures the link between homelessness and unfreedom in legal terms.^{Footnote 9} Homelessness consists in lacking legal rights to property. As Christopher Essert explains, “[t]o be homeless is to be under the power of others—to be dominated by them or dependent on them—in respect of where one may be.”^{Footnote 10} Unlike homeowners, street homeless people, who lack legal rights to property, are radically unfree. Their use of property—which they do not own—opens them to liability for trespass, or else it is contingent on the owner’s authorization. They are everywhere subject to potential, if not actual, interference. Similarly, sheltered homeless people, who also lack legal rights to property, are unfree in that they are only at the shelter at the shelter’s pleasure. If they are subject to rules governing when they can be there and what they can do when they are there, where failure to comply warrants eviction, they are clearly unfree. But even if they happen to live in relative comfort and no rules happen to be in place, they are still unfree. They are subject to potential interference. Homeless people lack legal property rights to be where they are or anywhere else where they are not subject to another’s will.

Limitations of Existing Charter-Based Attempts to Address Homelessness

The existing legal attempts to address homelessness are based on sections 7 and 15 of the Charter. Section 7 guarantees the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with principles of fundamental justice, while section 15 guarantees the right to equal treatment. However, these attempts demonstrate the limits of the Charter-based approach.

An illustrative case is Adams, where 70 homeless people set up a “tent city” in a public park in the City of Victoria despite by-laws prohibiting homeless people from erecting temporary overhead shelter at night.^{Footnote 11} The City sought a declaration and permanent injunction against the homeless people who violated the by-laws. The homeless people defended that the by-laws were unconstitutional. The Court found that the by-laws, which imposed serious health risks on vulnerable and marginalized people, violated section 7 (and was not saved by section 1).^{Footnote 12} However, the Court restricted the scope of its decision, in clarifying that it was not finding that homeless people had a positive right to housing or any other property right.^{Footnote 13} It declared the by-laws inoperative insofar as they applied to prohibit homeless people from erecting temporary overnight shelter in parks when there were more homeless people than available shelter beds.^{Footnote 14} The by-laws were not themselves unconstitutional, and the declaration depended on the shortage of shelter for homeless people.^{Footnote 15} Since the declaration referred to “temporary overnight shelter” rather than “temporary shelter,” it still let the City prohibit homeless people from erecting shelter during daytime.^{Footnote 16}

Another illustrative case is Tanudjaja, where certain homeless people argued that the state’s legislative scheme for addressing homelessness was inadequate and even exacerbating the problem, so that it violated sections 7 and 15.^{Footnote 17} They did not challenge specific legislation, but sought to declare that those Charter provisions obliged the state to take steps to eliminate homelessness. A majority of the Ontario Court of Appeal dismissed the application on the narrow ground of non-justiciability.^{Footnote 18} In its view, the issue concerned the state’s prioritization of homelessness, and the issue’s political nature meant that courts could not subject state conduct to Charter scrutiny. Unlike in Insite and Chaoulli, there was no specific legislation in question.^{Footnote 19} Section 7 was unlikely to ground a freestanding right to housing, and given non-justiciability, it was unnecessary to consider whether section 15 could do so.^{Footnote 20} However, Feldman JA in dissent would have let the application continue.^{Footnote 21} In her view, while the issue was novel, it was justiciable.^{Footnote 22} Further, Gosselin left open the possibility that the Charter grounds positive rights.^{Footnote 23}

Adams and Tanudjaja exemplify the limits of Charter-based approaches.^{Footnote 24} Even if Adams secured a limited negative right to housing, it depended on the contingent fact that there was a shortage of shelter. In defining homeless people to be those lacking a fixed address and predictable safe residence to return to on a daily basis, the Court implicitly assumed that no sheltered person is homeless.^{Footnote 25} Thus, the Court would presumably have been satisfied if everyone happened to have shelter, even if they lacked property rights of their own. Meanwhile, Tanudjaja highlights the reluctance to take the Charter to ground a positive right to housing. While the Court of Appeal did not foreclose the possibility that the Charter could do so, the motion judge more clearly did so. In considering the section 7 claim, Lederer J found that “[t]here is no positive obligation on Canada or Ontario to act to reduce homelessness,”^{Footnote 26} and he repeated this finding in considering the section 15 claim.^{Footnote 27} He added that the section 15 claim could not succeed because homelessness was neither an enumerated nor an analogous ground of discrimination.^{Footnote 28} Thus, sections 7 and 15 give homeless people limited help.^{Footnote 29} Notwithstanding the difficulty of recognizing homelessness as an analogous ground of discrimination, sections 7 and 15 do not currently promise a positive right to housing.^{Footnote 30}

A Private Law Approach Based on Equity

Given the limitations of the Charter-based approach, I suggest looking to private law for solutions. One private law approach, according to Essert, is based on the common law. Essert argues that the common law of property aims to address homelessness, so that its success or failure depends on the extent to which it realizes this aim.^{Footnote 31} Homelessness consists in the lack of property rights, and property rights are justifiable because they can uniquely solve homelessness.^{Footnote 32} A key premise is that without property rights, everyone would be homeless, because everyone would be subject to another’s effective power, in that no one would have a right that others not interfere with a location or what is happening there.^{Footnote 33} Property rights give people freedom from another’s power by giving them the legally enforceable right to control or make decisions about their property without interference.^{Footnote 34} Since property rights help eliminate homelessness, they are justified as a response, but the form of this justification requires that the elimination be complete.^{Footnote 35} Thus, to the extent that there remain homeless people, the common law of property falls short of realizing its aim.^{Footnote 36}

Essert’s common law approach provides the foundation for the equitable approach I propose, because equity appropriately responds to the deficiency that he identifies in the provision of common law property rights arising from the incomplete elimination of homelessness. But before I elaborate on how Essert’s insight helps motivate equitable intervention, let me first outline equity’s place in the law.

Equity, which developed as a flexible response to the perceived rigidity of the common law, is part of the law in the broad sense and supplements the common law.^{Footnote 37} While common law courts are now fused with courts of equity,^{Footnote 38} in that the same courts administer both the common law and equity, there remain discernible differences between the two systems of law. Without settling whether they are now substantively integrated, they are at least conceptually distinct.^{Footnote 39}

While the common law is concerned with applying general rules, equity helps ensure justice in particular cases by responding to conscience.^{Footnote 40} The differences concern both substantive law and remedies.^{Footnote 41} Substantively, equity recognizes legally enforceable interests even when the common law does not. The equitable doctrine of promissory estoppel takes my reasonable detrimental reliance on your promise to give me an equitable right preventing you from exercising your strict legal right against me.^{Footnote 42} Where your promise is gratuitous, the common law does not recognize me as having a right, but equity does so because of the injustice that would otherwise arise. This doctrine exemplifies characteristic features of equitable rights. Equitable rights act in personam, and they are rights against rights.^{Footnote 43} In terms of remedies, equity typically offers a wider range of remedies, which are discretionary. While common law remedies focus on monetary damages, equitable remedies—such as specific performance—focus on conduct.

Where common law and equity conflict, equity prevails.^{Footnote 44} However, equity complements rather than supplants the common law. As supplemental law, equity generates legal interests.^{Footnote 45}

The Origins of the Equitable Right

The motivation for equitable intervention involves the state’s provision of the system of property rights (and its link to homelessness). There are three reasons why equity cares about this provision. The first two reasons resemble the differential treatment component in section 15 claims, insofar as they stress the unequal distribution of benefits and burdens.^{Footnote 46} The third reason stresses the gap between what property law aims to achieve and what it has achieved so far.

The first reason is that insofar as the state provides the system of property rights to benefit people, it is discriminatory—and thus unjust and inequitable—to benefit only some (property owners), and not others (homeless people).^{Footnote 47} The benefits of property rights, to those who have them, are clear: property owners have say-so over who can use their property, when they can do so, and what they can do with it.^{Footnote 48} In lacking property rights, homeless people do not get to enjoy these significant benefits. Granted, the state might not be obliged to provide this system in the first place. Property rights are not clearly protected under section 7 or anywhere else in the Canadian Constitution. But once the state has actively chosen to provide the system, as it has, it must provide the benefits equally. Of course, the state already provides the system of property rights to everyone in the sense that even homeless people have the opportunity to acquire property and thus benefit from the system. But as Waldron said, “to put it crudely, one cannot pee in an opportunity.”^{Footnote 49} Since only property owners actually benefit from the system, providing the benefit equally means actually providing property to everyone.

The principle that once the state provides a system of benefits, it must do so equally, resembles, but goes beyond a similar principle in the section 15 jurisprudence. In Eldridge, the Supreme Court of Canada held that, whether the Charter grounds positive rights outright, once the state has chosen to provide benefits, it must do so equally.^{Footnote 50} The Court added that the state might have to take “positive action, for example by extending the scope of a benefit to a previously excluded class of persons,” and without creating further inequality.^{Footnote 51} That section 15 principle might not apply to the system of property rights, since that principle depends on the applicability of the Charter to state conduct, but it is unclear that the Charter directly applies to the common law.^{Footnote 52} The principle I am invoking thus goes beyond the section 15 principle, in applying to the state’s provision of the system of property rights even if the section 15 principle does not.

The second reason why the state’s provision of the system of property rights is significant is linked to the first. Not only does the provision benefit only some, but in making possible a new form of domination, it also disproportionately burdens those lacking property—homeless people.^{Footnote 53}

Consider an analogy with the system of contract rights. Without the system of contract rights, people can make informal agreements with each other, but they cannot make legally binding agreements. Any agreement they might have does not create rights or corresponding duties. Neither you nor I have the right to make the other perform or the duty to keep our own promise. When you fail to keep your promise, I lack legal recourse. The introduction of the system of contract rights changes the normative landscape. Once the system is in place, people can make legally binding agreements, which give each party the right to make the other perform and the duty to keep their own promise. When you fail to keep your promise, I can legally enforce the agreement. The system thus benefits the enforcing party. But the benefit for the enforcing party corresponds to a burden for the non-performing party. The law holds them liable to pay compensatory damages or specifically perform the contract. So, the system of contract rights introduces a new form of domination. Crucially, equity can mitigate such domination. Where there is unequal bargaining power and contractual terms are unreasonably harsh, equity can intervene.^{Footnote 54} While the common law might see no reason to interfere, and would hold the parties to their bargain, equity might deem the agreement unconscionable and thus unenforceable.

This analogy inspires a parallel argument involving the system of property rights.^{Footnote 55} Without the system of property rights, people cannot legally take something as one’s own. Any taking one engages in does not create rights or corresponding duties. I do not have the right against anyone or the world to anything, and no one has the duty to respect my attempt to claim something. When others fail to respect my taking of something, I lack legal recourse. The introduction of property rights changes the normative landscape. Once the system is in place, people can legally acquire property, which gives the acquirer the right to exclude others, and so gives others the corresponding duty to respect the acquirer’s property claim. I can legally enforce my right to exclude. The system thus benefits property owners. But the benefit for the owner corresponds to a burden for those subject to their property right—everyone else. The law prevents others from interfering with my property: if they do so, they are liable for trespass. So, the system of property rights introduces a new form of domination. While such domination might not be so unjust if everyone were equally vulnerable to it, it is unjust when homeless people are disproportionately subject to it.^{Footnote 56} Homeless people assume the distinct burden of being subject to others’ property rights without having the benefit of enjoying property rights of their own.

Equity can mitigate the new form of domination and its disproportionate impact on homeless people. Granted, one might think that given the creation of such domination, we should respond by eliminating the system of property rights. But I reject this response. Where homelessness consists in the lack of property rights, the provision of the system of property rights is the unique solution to homelessness. As Essert explains, eliminating the system would exacerbate the problem, since it would render everyone homeless.^{Footnote 57} In a world without property rights, everyone would be under another’s effective power, even if they would not be under another’s legal power. No one would have the right for others not to interfere with where they are. Thus, eliminating the system of property rights is not the appropriate response. Rather, as Essert suggests, the appropriate response is to extend the benefits of the system of property rights to everyone, by ensuring that everyone has property.^{Footnote 58} In a world where everyone has property rights, everyone has somewhere over which they have full control and so are not under another’s power.

This brings us to the third reason why the state’s provision of the system of property rights is significant: as supplemental law, equity fills the gap in the incomplete provision of property rights. As Essert suggests, the common law of property aims to address homelessness, and the only way to fully realize this aim is for everyone to actually have property rights. Insofar as the common law of property fails to realize its aim, equity fills the gap—the absence of legal property rights for everyone—by recognizing equitable property rights.

Gap-filling is not unknown to equity. In trust law, where the settlor does everything within their power to transfer property to the trustee, equity perfects incomplete transfers by imposing a constructive trust to fill the gap before an express trust takes effect.^{Footnote 59} The kind of gap-filling I am proposing here might go beyond that more familiar kind of gap-filling. But it accords with the characterization of equity as ensuring that the law realizes its aims.^{Footnote 60} It also dovetails with the characterization of equity as completing and improving the law.^{Footnote 61} The kind of gap-filling I have in mind is plausibly analogous to how equity introduced trusts and restrictive covenants to fill gaps in the common law. Since beneficiaries lacked protection from delinquent trustees at common law, equity gave beneficiaries an equitable right over the relevant property and thus introduced trusts.^{Footnote 62} Similarly, since the grantor of a restrictive covenant could not enforce it at common law, equity gave the grantor an equitable right over the relevant property and thus introduced equitable easements.^{Footnote 63}

To summarize, there are three reasons why the state’s provision of the system of property rights motivates equitable intervention. First, the system benefits property owners but not homeless people. Second, the system creates a new form of domination, which disproportionately burdens homeless people. Third, the system remains incomplete insofar as homelessness remains. The first two of these reasons, involving the unequal distribution of benefits and burdens, amount to discriminatory conduct on the part of the state. Since we are outside the Charter context, we can recognize this discrimination even though the courts have not recognized homelessness as an analogous ground under s. 15 of the Charter. But, to be clear, the discrimination does not merely arise from the state’s inaction. Rather, it arises partly because the state has actively chosen to provide the system of property rights. Bringing this system into existence does not itself amount to discrimination, but bringing this system into existence and then failing to ensure that the benefits and burdens are equally distributed does.

The Nature of the Equitable Right

Since equity grants remedies to wrongs, what remedy is appropriate for the wrongs to homeless people arising from the state’s provision of the system of property rights?^{Footnote 64} In other words, given the motivation for an equitable right to housing, what is the nature of this right?

At a minimum, I suggest, an equitable right to housing yields a negative right to housing, which prevents the state from holding homeless people liable for trespass on public property like parks, so that they have an “equitable licence” to shelter themselves on such property.^{Footnote 65} Since the state is the one responsible for providing the system of property rights, the right is held against the state rather than all property owners. This avoids Lord Denning’s worry that “[i]f homelessness were once admitted as a defence to trespass, no one’s house could be safe.”^{Footnote 66} While one might disagree with Lord Denning, and think instead that there is reason to limit the exercise of property rights no matter who the property owner is, it seems to me that the state’s unique role suggests making it bear the weight of responsibility. It is the state’s provision of the system of property rights that makes possible the kind of domination and unfreedom that homeless people currently experience. The state’s provision of this system, rather than the conduct of any private actor, is what gives rise to the unequal distribution of benefits and burdens, or discrimination. To be sure, there may well be motivation elsewhere for recognizing something like a right to roam, which some countries recognize, or for recognizing some other limitation on private property owners’ property rights. The present point is just that the motivation for recognizing an equitable right to housing, which yields at least a negative right to housing, targets the state in particular rather than all property owners.

This negative equitable right to housing provides an alternate ground for decisions like Adams, which arguably found that there was a negative right to housing (although it did not characterize it as such). The Adams decision invites an analysis in terms of equity. Like the Charter, equity stops the state from preventing homeless people from erecting temporary overnight shelter. Instead of taking a Charter provision to stop the state from applying the restrictive by-law to homeless people, however, equity takes the state’s role in homelessness to stop the state from doing so. Notably, the Court in Adams did not simply strike down the by-law. Rather, it circumscribed its application so as not to prevent homeless people from erecting temporary overnight shelter in parks when there are more homeless people than available shelter beds. The Court did not hold that the state could not validly pass the by-law, but rather held that it could not enforce the by-law against homeless people. This remedy has the structure of an equitable remedy, in providing what amounts to an in personam right—one held against the state’s legal right to enforce the by-law. While the state might continue to enforce the by-law in other contexts, it is estopped from enforcing it against homeless people. The negative equitable right to housing provides an alternate ground for the result in Adams.

But, I suggest, the negative equitable right can also ground a stronger remedy than the one in Adams. In Adams, the Court only let homeless people erect temporary overnight shelter, and it stopped short of characterizing the right as a property right.^{Footnote 67} The equitable right can, in my view, go further than this. Specifically, the equitable right can let homeless people erect even permanent shelter, and so have something that looks more proprietary. Thus, the equitable right to housing guarantees at least the result in Adams, while more clearly recognizing a property right. The equitable right to housing also goes beyond the result in Adams, in letting homeless people erect not only temporary overnight shelter but also permanent shelter. However, all of this is compatible with the equitable right to housing being merely a negative right.

It is reassuring that equity can ground a negative right to housing, just as the Charter can, but can it also ground a positive right to housing? After all, we are looking to equity because the Charter seems unlikely to ground a positive right to housing. A possibility is that the negative equitable right to housing effectively secures a positive equitable right to housing. For the negative equitable right holds that the state cannot stop homeless people from sheltering themselves on public property. Homeless people can shelter themselves on public property like parks, where they can conceivably make themselves at home and remain indefinitely. Only someone with better title could evict them. While the state has better title, it cannot evict them because it would be inequitable for it to enforce its property right against them. But no one else has better title, so no one else could evict them. Thus, perhaps although homeless people lack full property rights to be where they are, they are effectively entitled to be there, having something like a positive right to be there. That no one can enforce better title against them might give them effective ownership.^{Footnote 68} While intriguing, however, I will not pursue this possibility—the possibility of grounding something like a positive right to housing in what initially looks like only a negative right to housing—further. It is unclear that whatever entitlement results is robust enough of a property right for us to properly deem those with the entitlement no longer homeless. The resulting entitlement might not ensure the exclusivity over decision-making that is required for genuine ownership.^{Footnote 69} More importantly, in my view, equity can directly ground a positive right to housing—without having to invoke the relativity of title.

I suggest that the motivation for equitable intervention grounds a positive right to housing, which corresponds to the state’s positive duty to provide housing. The right holds against the state because the state is responsible for providing the system of property rights. While equity does not always create positive rights (let alone rights in property), it can clearly do so, as trust law illustrates.^{Footnote 70} The trustee, who has legal title in property, holds the property on trust for the beneficiary, who has equitable title. At the core of the trust is the trustee’s fiduciary duty to act in the beneficiary’s interest, so that the beneficiary has the corresponding right to enforce the trust by holding the trustee to account.^{Footnote 71} The fiduciary duty that equity imposes on the trustee is a positive duty, since the trustee must exercise their legal powers in the beneficiary’s favour. The beneficiary’s corresponding right is also positive.

Perhaps the equitable right to housing warrants making the state the trustee of a constructive trust over certain public property in favour of homeless people. Such a trust would be consistent with older Supreme Court of Canada jurisprudence suggesting that the state owns common property in trust for the public.^{Footnote 72} But the equitable right to housing is also compatible with other views of state-owned property, including more recent Supreme Court jurisprudence suggesting that the state owns common property just as a private owner owns their property.^{Footnote 73} Even if the equitable right to housing does not yield a trust in favour of homeless people, it might still impose a fiduciary duty (outside of a trust) on the state to act in favour of homeless people. This duty might resemble the one that the Supreme Court has held, based on expressly equitable considerations, the state owes to Indigenous peoples.^{Footnote 74}

Further, even if the duty is not fiduciary, equity might still impose a positive duty on the state—to take steps to provide everyone with housing. The precise nature and scope of the duty depends on the factual context, and could range from a more demanding, substantive duty to a less demanding, more procedural one.^{Footnote 75} On the more substantive end of the spectrum, the duty could be to actually provide housing or otherwise ensure that there is accessible housing by combining public and private approaches, like subsidized housing projects, rent control, and housing vouchers.^{Footnote 76} Access should be unconditional, in not depending on one’s personal, financial, or employment situation. If we understand property rights broadly to include rights to possess, use, and alienate property, the equitable right to housing could include all these rights in full or perhaps limited versions of them.^{Footnote 77} The right could range from fee simple absolute to a tenant’s right to reasonable control over their residence.^{Footnote 78} On the more procedural end of the spectrum, the duty could be to take steps to reduce financial and other barriers to housing, or to progressively realize housing for all. Given Canada’s recent commitment to the National Housing Strategy, Canada might already be in a position to meet the duty to progressively realize housing for all.^{Footnote 79}

In any case, the equitable right to housing encourages the state to do more than it is currently doing. Consider residential tenancy legislation, which already incorporates equitable principles, in letting adjudicators refuse a landlord’s attempt to evict a tenant unless it would be unfair to do so.^{Footnote 80} This discretion only sometimes favours tenants risking eviction.^{Footnote 81} In one case, the tribunal let a public housing provider evict a tenant who was constantly late in paying rent.^{Footnote 82} Although the tribunal acknowledged that the tenant, who had two children in school, was “hard-working and well-meaning,” it considered that many other families were waiting for housing.^{Footnote 83} Similarly, while policies that suggest eviction only as a last resort are a welcome first step, they still implicitly assume that housing is more a privilege than a right.^{Footnote 84} Once we recognize the equitable positive right to housing (perhaps just as we recognize the rights to healthcare and education), a tribunal should avoid eviction when eviction would render a tenant homeless. Judgments about who “deserves” housing have no place in determining access.^{Footnote 85} Nonetheless, the discretionary nature of equitable remedies, including the equitable right to housing, means that adjudicators can appropriately respond to a range of considerations, as the circumstances require. This need not detract from a generally principled and consistent approach to adjudication, since prior decisions may remain persuasive, even if not binding, in a given case. This is only to recognize that equity properly responds to the particular circumstances.

In closing, I wish to address two concerns about the nature of the equitable right. First, I have suggested that the equitable right is a right to housing, and not merely a right to have the means to access housing, but why must this be so? One might suppose that, instead of the state actually having to ensure that homeless people have housing, it is sufficient for the state to merely ensure that homeless people have the money to access housing. The state might then be able to discharge its responsibility by implementing universal basic income. However, I think the state must actually provide housing rather than merely the means to access housing, because it is housing itself that matters and not merely the means to access housing. I do not object to universal basic income, but it falls short on its own, as far as housing is concerned, because there is no guarantee that homeless people will use their income to access housing. Granted, one might respond that choosing to spend their income on expenses other than housing is their prerogative, and the state has no business in interfering with their freedom to choose how to spend their money. Nonetheless, while I agree that it should be up to people to decide how they want to spend their income, the shortcoming of universal basic income as a solution to homelessness is that it does not pay sufficient attention to the domination or unfreedom that homeless people experience. Homelessness often coincides with poverty, so homeless people may well wish to spend their income on other expenses, such as food, or to pay off loans, thus rendering their income insufficient to afford housing. What if the state provides not just a universal basic income, but also enough income so that everyone can afford housing? Perhaps doing so might obviate the need for the state to actually provide housing. However, I suspect that such a program would be so costly for the state that it would be cheaper just to provide housing itself.

Second, given the worry involving institutional competence in Tanudjaja, what if anything makes the equity-based approach I am proposing more effective than the Charter-based approach in Tanudjaja? Recall that a majority of the Court of Appeal in Tanudjaja suggested that the political nature of the issue and the absence of a challenge to specific legislation made the state’s role in homelessness immune from Charter scrutiny. One might reasonably wonder whether similar concerns might impede the success of the equity-based approach, as opposed to the Charter-based approach. As an institutional matter, it might not be appropriate for the courts to dictate how the state should spend its resources.

In response to this second concern, I want to acknowledge from the outset that the worry here is quite legitimate, and the complexity of the matter means that I can likely do no more than flag the worry and offer a brief response here. Nonetheless, I think there is reason for optimism with the equity-based approach. To start with, moving away from the Charter context releases us from the constraints of the Charter-based approach. We need not work within the jurisprudence on specific provisions, such as ss. 7 and 15, or s. 1, and the absence of a challenge to specific legislation—which might spell trouble for the Charter-based approach—is of less relevance to equity. More importantly, while the institutional concerns might still limit the ability of courts to allocate the distribution of resources, the equity-based approach offers the courts a fresh opportunity to recognize homelessness as a legal problem. With respect to the majority of the Court of Appeal in Tanudjaja, the mere fact that homelessness might have a political dimension does not insulate it from judicial scrutiny. Many issues that courts appropriately adjudicate on have a political dimension—Insite concerned a minister’s exercise of discretion. Accordingly, courts can appropriately adjudicate on the state’s role in homelessness and invoke its equitable jurisdiction in doing so. While enforcing the equitable right to housing would be the preferable remedy, the next-best remedy might be to declare that the state has violated homeless people’s equitable right to housing and leave it to the state to adopt remedial action. Such a remedy would be similar to what happened in Khadr, where the Supreme Court of Canada declared that Canada violated Omar Khadr’s Charter rights but left it to the state to adopt remedial action.^{Footnote 86} The Court in that case concluded that a declaration, which is a discretionary remedy, was appropriate given the courts’ institutional limitations in reviewing royal prerogative over foreign relations. In the case of homelessness, a court could issue a declaration, a discretionary and equitable remedy, for a similar reason. Doing so would strike a balance between recognizing both courts’ institutional limitations and the state’s wronging of homeless people. Compared to the Court of Appeal’s approach in Tanudjaja, a declaration would at least vindicate homeless people’s rights by recognizing that they have rights and that the state has violated them.