Evictions during pandemic should be seen as forced and unlawful

The impending end to the provincial moratorium on residential evictions of those with incomes affected by COVID-19 is coming on June 30, placing many tenants on the edge.  More broadly, all residential evictions during the pandemic are problematic as everyone needs a place to “stay the blazes home”.  Any evictions at this time should be considered forced evictions, and violations of the right to housing under international law pursuant to the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR) and under domestic law under the Canadian Charter of Rights and Freedoms (Charter) and contrary to the right to housing recognized in the National Housing Strategy Act. 

In Nova Scotia, unaffordability of housing is a major barrier for the well-being of predominantly working class people.  In Halifax, the situation is terrible, with more than 21% of households in Halifax are paying a staggering 50% of their incomes on rent and utilities, while over 43% spend over 30% on rent and utilities.  Before the pandemic, the vacancy rates in Nova Scotia were approximately 1.4% and an even worse 1% in Halifax, with affordable housing at a miserable 0.5%.  With gutted incomes due to the economic impacts of COVID-19, the proportion of incomes going to rent has obviously increased substantially, with exact numbers unknown at present.

Why any evictions right now should be seen as forced and illegal

International and domestic law should work to make any evictions during the pandemic unlawful due to tenants having committed no fault in being unable to afford rent and also due to the health risk of being homeless during the pandemic and having no legal protection against such evictions.

For decades, Canada has been party to international law that has required it to progressively improve provision of affordable and adequate housing. There is no reasonable excuse for a rich country such as Canada to have an affordable housing crisis.  Under ICESCR, all state parties including Canada:

undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant.

Article 11 of the ICESCR contains the right to housing (my emphasis):

  1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

Article 17 of the ICCPR states that, “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home.”

Both these above articles work to prohibit forced evictions, which are recognized as a violation of the right to housing.  In its General Comment No. 4, the UN Committee on Social, Economic and Cultural Rights, the Committee interpreted the right to housing to include security of tenure, which includes the prohibition against forced evictions:

…all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.

In General Comment No. 7, which directly addresses forced evictions, the Committee defines forced evictions as, “permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”

At paragraph 4 they state:

… the practice of forced evictions may also result in violations of civil and political rights, such as the right to life, the right to security of the person, the right to non interference with privacy, family and home and the right to the peaceful enjoyment of possessions.

Paragraph 8 interprets section 17.1 of the ICCPR in light of the right to not be forcibly evicted:

… article 17.1 of the International Covenant on Civil and Political Rights which complements the right not to be forcefully evicted without adequate protection. That provision recognizes, inter alia, the right to be protected against “arbitrary or unlawful interference” with one’s home.

Paragraph 16 states, “Evictions should not result in individuals being rendered homeless or vulnerable to the violation of other human rights.”

Canada has already been scrutinized for its lack of compliance with the right to housing.  In 2016, the Committee issued a rather scathing report to Canada, where it stated (my emphasis):

  1. The Committee urges the State party to develop and effectively implement a human-rights based national strategy on housing and ensure that all provincial and territorial housing strategies are aligned with the national strategy. In light of its general comments nos. 4 (1991) on the right to adequate housing, and 7 (1997) on forced evictions, the Committee recommends that the State party:

 (a) Progressively increase federal and provincial resources allocated to housing, and reinforce the housing subsidy within the social assistance benefit so as to be commensurate to living costs;

(b) Take effective measures to substantially increase the availability of social and affordable housing units;

(c) Regulate rental arrangements with a view to ensuring that tenants enjoy the right to affordable and decent housing and are not vulnerable to forced evictions and homelessness;

(d) Ensure that its legislation on forced evictions is compatible with international norms, particularly with respect to its obligation to ensure that no persons find themselves homeless or victims of other human rights violations due to evictions, and that compensation or alternative accommodation is provided to victims.

With the advent of Canada’s National Housing Strategy Act (NHSA), the right to housing was finally adopted into domestic law in a formal sense.  Following from international law and the adoption by Canada of the NHSA, the right to housing, including the right against forced evictions, should be considered part of a person’s section 7 Charter rights to, “life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Being evicted must be seen as a deprivation of security of the person, which the Supreme Court of Canada has held to be any government action that deprives a person of psychological integrity and puts their well-being at stake.  Section 7 of the Charter requires that there can be no deprivation of security of the person that is in discord with the principles of fundamental justice.  Those principles include that acts or omissions of government are not arbitrary or unreasonable.  The McNeil government has failed to provide tenants with adequate protection or redress through its omissions.

Once the suspension of COVID-19 related evictions ends on June 30, 2020, countless tenants will face eviction proceedings if they are unable to meet their rental debts.  Any such eviction proceedings will be forced evictions if the tenants do not wish to leave.  As noted above, international law requires that no one be rendered homeless due to evictions, and vulnerable to the violation of other human rights, which could include forced exposure to higher risk of infection of COVID-19.  As well, it requires that there is legal protection against forced eviction.  The Charter should be interpreted to do the same.  Countless tenants who are struggling to cover costs of living due to COVID-19 economic impacts are, or will be, short on rent though no fault of their own.  Businesses and other workplaces were forced to close or trim down due to orders under the Health Protection Act and Emergency Management Act.  Federal and provincial government benefits for people who have lost income have not gone far enough to cover the costs of rents that have failed to go down in conjunction with the economic pinch.  If someone is evicted for not being able to pay unaffordable rent, that has not adjusted whatsoever to the economic reality, this is entirely unreasonable.  Furthermore, regardless of whether the reason for the eviction is a COVID-19-related shortfall of rent, any homelessness caused during the pandemic will expose those cast out to higher risks of contracting or being vectors for spreading the virus, as they will have nowhere to self-isolate.  Housing was already unaffordable before the pandemic.  Now it is a major crisis that should be dealt with urgently.

The Nova Scotia government needs to halt all evictions during the pandemic.  No one should be made homeless to their own peril.  Rent must be indexed to current income levels and be calibrated to the overall costs of living, so as not to leave tenants with their bank accounts bled dry each month to advance profits of landlords.  Unaffordable rental debts accumulated during the pandemic must be forgiven and rental payments going forward must be affordable.  Landlords should be compelled to accept reasonable payment plans that will not stress tenants by consuming would-be savings that are essential to survive the hard economic times to come for working class people.  Landlords should also have to negotiate with tenant organizations that are acting as the collective voice of organized tenants, just as employers must negotiate in good faith with workers through labour unions.

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