Jennifer Tanudjaja has made choices in her life that many other women would not have made.
For starters, at the age of 15, she became pregnant. Although she was impoverished, uneducated and on welfare, she chose to keep her baby, instead of allowing him to be adopted by one of the many childless Canadian couples on waiting lists, who yearn to give a healthy infant a good home.
At 17, she became pregnant again. As before, she kept her child, denying him the opportunity to be raised in comfortable financial circumstances by two parents.
By the age of 19, she and her toddlers were living on their own, on welfare, receiving no support from the children's father. It was then, in 2010, that she chose to become an applicant in a court case (Tanudjaja v. Attorney General of Canada and Attorney General of Ontario). That case sought to establish, among other things, that having to spend 52 per cent of her monthly benefits on rent violated her Charter right to life, liberty and security of the person. Ms. Tanudjaja wanted the taxpayers to do even more for her and her sons than they were already doing -- to provide her with housing that she considered affordable and adequate. In fact, she claimed this as her right.
The issue came before Ontario Superior Court Justice Lederer in 2013, on motions by the two governments to dismiss the application. Dismiss it he did, for a variety of reasons. On Ms. Tanudjaja's rights claim, he stated: "Section 7 of the Charter does not provide a positive right to affordable, adequate, accessible housing, and places no positive obligation on the state to provide it."
The Ontario Court of Appeal, in December 2014, was unfortunately less clear on this point. The majority of the court dismissed Ms. Tanudjaja's appeal on the grounds that her application raised no justiciable issue, but declined to discuss the question of positive rights, saying it wasn't necessary. The third judge failed to find that the application had no reasonable prospect of success. She harked back to the 2002 Gosselin case, in which the Supreme Court of Canada had left the door open a tiny crack to the possibility of recognizing positive rights claims in the future.
So now Ms. Tanudjaja and her fellow applicants are reportedly seeking leave to appeal to the SCC, where they will be accompanied by the same small army of interveners who cheered them on at the Court of Appeal. They will again advance the notion that she is entitled to even better and cheaper housing than the taxpayers already provide her with, as a Charter right.
In effect, Ms. Tanudjaja and her crowd are saying that all the individuals who chose to live their lives more responsibly than she did. They did not conceive babies while in their teens, they aborted or gave up unplanned children for adoption, and worked instead of going on welfare. All these people should have their lives curtailed through increased taxation in order to save her from going through privations that may actually be no worse than those taxpayers themselves endured.
She's saying that because she wants better housing for her kids, some unknown taxpayers somewhere are going to have to explain to their kids why they have to share a bedroom, or can't move to a better neighbourhood, or can't have piano lessons -- because their parents can't afford those luxuries now that taxes have gone up.
Here's the reality: the state has no resources to dole out as benefits except for what it takes, coercively, from other taxpayers. New, clean, attractive apartments don't grow on trees. Therefore, every claim for a positive right to such an apartment -- in fact, every claim that the state must affirmatively do something for you, rather than just leave you alone -- necessarily entails the corollary that somebody else's well-being must be reduced. And if well-being is a right guaranteed by the state, as Ms. Tanudjaja asserts, then recognizing positive rights claims as valid rights will result in endless vicious circles of claims and cross-claims, echoing, boomeranging and colliding through the courts forever.
Advocates of positive rights suffer from chronic myopia. They see no further than the first step down the logical chain of events that would be necessary to fulfill their demands. They look only as far as the state to grant their dreams, without looking beyond, at the dreams of others that the state would have to wreck in order to commandeer and transfer that wealth.
The more the state grants Ms. Tanudjaja's claim to be given security of the person, the more it undermines everybody else's negative right not to be deprived of their security of the person. Positive rights violate genuine rights. Let's hope the SCC lays these unjust claims to rest forever.
This article originally appeared in the February 27, 2015, issue of The Lawyers Weekly published by LexisNexis Canada Inc.
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