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Sean Rehaag is an associate professor, Osgoode Hall Law School, York University.


"Two-bedroom condo for rent. $2,000 per month, utilities included ($2,300 if you are a foreign national)."

Such an advertisement would violate the human-rights codes in most provinces. Charging higher rent for foreign nationals is a straightforward example of discrimination in housing. It's illegal.

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What, then, of British Columbia's new tax on property purchased by foreign nationals, a tax that Ontario is reportedly also considering? It, too, is illegal.

The Charter of Rights and Freedoms forbids governments from discriminating on the basis of a list of prohibited grounds, including national origin. Canadian courts have extended those prohibited grounds to include citizenship status.

The new B.C. tax, which took effect Tuesday on properties in Metro Vancouver, is not restricted to people living outside Canada. It applies to anyone who is not a citizen or a permanent resident. It taxes people, including residents of British Columbia, differently depending on their citizenship status. There is little question that a tax applying exclusively to a group defined by one of the Charter's prohibited grounds would constitute discrimination.

The Charter includes a provision that renders measures lawful that would otherwise be unconstitutional if they are reasonable limits that can be justified in a free and democratic society. But to benefit from this provision, the government must show, among other things, that there are no other ways to achieve the intended policy objective that would do less to infringe people's rights. It is unlikely that the B.C. government could meet this test in this case. Many other policies could accomplish similar ends without discriminating against foreign nationals, such as residency requirements, which have long been used in Prince Edward Island and Saskatchewan.

It is disturbing that the B.C. government would pass legislation that violates the Charter, and that other provinces are considering doing the same. What is worse is that this unlawful legislation is part of a long and unfortunate tradition of discrimination in both Canada and British Columbia.

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While the new 15-per-cent B.C. levy applies to foreign nationals, we all know the aim of the legislation is narrower: curtailing real estate investment by Chinese foreign investors. In this context, what is striking about the levy is how closely it parallels other attempts to restrict Chinese participation in the B.C. and Canadian economies. These include not only the infamous Chinese head tax, but also dozens of more targeted taxes and restrictions that aimed to protect "whites" against competition in the labour market, in trades and professions, in industries, in real estate and in democratic institutions.

In 2014, the B.C. Legislature issued an apology for the multitude of discriminatory laws and policies imposed on people of Chinese descent from 1871 to 1947. The apology stated that "these laws and policies denied British Columbia's Chinese communities' basic human rights, including but not limited to, the right to vote, hold public office or own property; imposed labour, educational and employment restrictions; subjected them to health and housing segregation, and prevented them from fully participating in society." The Legislature declared that it "deeply regrets that these Canadians were discriminated against simply because they were of Chinese descent. All members of this House acknowledge that we all aspire to be a fair and just society where people of all nations and cultures are welcomed, accepted and respected."

In light of this history, it is imperative that we be cautious about policies that target people on the basis of national origin or citizenship status. The message sent by the new B.C. tax legislation – about who is welcome to participate in our economy and in our communities – matters.

If the B.C. and Ontario governments want to increase housing affordability for residents, there are other solutions. Some obvious ones include residency requirements, taxes on vacant property, taxes that discourage speculation and flipping, bylaws that encourage dense and diverse housing stock, and increased public investment in social housing. None of these would require unlawful discrimination. And none would continue the tradition of attacks on a marginalized community.