Homelessness and Unconstitutional Discrimination

Abstract

In a series of recent judicial decisions, Canadian courts have rejected homelessness as a ground of discrimination in Canadian constitutional law. Judges have concluded that homeless people are not a protected class under section 15 of the Canadian Charter of Rights and Freedom for two principal reasons. First, they have decided that homelessness is not an immutable or constructively immutable personal characteristic. Second, they have determined that the term “homelessness” is too vague to constitute a protected class under the Charter’ s equal protection framework. This article challenges these two conclusions and demonstrates why homelessness — a condition where individuals lack a real private property right — constitutes a plausible ground of discrimination. I argue that we gain a richer understanding of the wrongs of discrimination and the moral concerns underlying homelessness by appealing to the republican theory of freedom (or republicanism) that construes liberty as non-domination. The term “domination” implies that others possess a unilateral power to interfere with an individual’s actions, plans, or purposes. Drawing on the connection between equality and liberty, I show how the republican theory of freedom provides for a more purposive interpretation of the right to equal protection. Notably, republicanism’s insights can illuminate certain limitations of section 15 Charter jurisprudence, highlight the harms of discrimination based on quasi-immutable traits, and assist in identifying new analogous grounds of discrimination. Ultimately, this article demonstrates why unfreedom undermines equality and why a meaningful conception of section 15 of the Charter must recognize this reality.

Keywords: homelessness, discrimination, equal protection, constitutional law

JEL Classification: K10, K40, K42