Charter of Rights and Homeless Persons

By  Linda McKay-Panos

Reposted with permission from LawNow (March/April 2018) 42(4)

Many Canadians are living in poverty, and people from certain groups are over-represented in those who are suffering poverty’s adverse effects, no matter how we measure or define “poverty”. For example, a 2015 study by the Edmonton Social Planning Council revealed troublesome statistics:

• one in eight Edmontonians lives below the poverty line;
• Alberta has the largest percentage of working people living in poverty in Canada;
• one in five children under 18 in Edmonton live in poverty, and that number increases to one in two if the family has a single parent;
• Aboriginal persons are twice as likely as non-Aboriginal persons to be living in poverty; and
• Recent immigrants have comparatively lower incomes than other Canadians.

Likewise, a 2012 report authored by the United Way of Calgary and Area, Vibrant Communities Calgary and the City of Calgary indicated that one in ten Calgarians and nearly 400,000 Albertans live in poverty. The report indicates several key factors that contribute to poverty and its effects:

• mental health (60% of homeless persons live with mental illness);
• gender (69% of part time workers in Canada in 2003 were women; female seniors are at particular risk, as are lone-parent families);
• racialized minorities (40% of those living in poverty in 2006);
• sexual orientation (between 20% and 40% of homeless youth in Canada are lesbian, gay, bisexual or transgender);
• children in low-income families; and
• recent immigrants, Aboriginal persons, and persons with disabilities were groups that had significantly lower median incomes than Calgary’s median income in 2005.

There have been several philosophical, political and legal debates about whether the Canadian Charter of Rights and Freedoms (“Charter”) guarantees that Canadians have a right to adequate housing. To date, although there have been some interesting cases that make Charter arguments about the right to adequate housing or attempting to address the issue in court, these have not been very successful. However, the Charter – in particular Charter ss 7 and 15(1) – has been more successful in shielding homeless individuals who have been charged with bylaw offences or removed by officials from sleeping or living in parks or on other public property, than providing a right to adequate housing.

People living in poverty, including low-income and homeless people, are bound to be negatively affected by municipal bylaws that address public behaviour, such as those governing uses of public parks and transit, and uses of streets. Individuals across Canada have collected very large fines for violating these types of bylaws, yet often their behaviours are based on survival (e.g., riding transit without a ticket because they used the money for rent). Because they are poor and/or homeless, persons with low incomes are unable to pay the fines, which have added up to thousands of dollars.

Victoria v Adams, 2009 BCCA 563  (“Adams, BCCA”) is one of the most notable successes in homeless litigation. This decision dealt with a municipal bylaw that prohibited persons from creating overnight shelters in public parks. While this bylaw technically applied to everyone, it was clearly targeted at the “tent cities” of homeless persons sleeping in Victoria’s parks. The occupants relied on Charter s 7, which reads:

(7) Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The British Columbia Court of Appeal held that the bylaw infringed section 7 of the Charter because:

• it deprived people of their life and security of the person (people can die when sleeping outside without adequate protection); and
• the bylaw was overbroad and therefore, not in accordance with the principles of fundamental justice (less invasive options would be available to accomplish its societal interests).

Adams, BCCA was an important victory for anti-poverty advocates. It recognized that while governments do not necessarily create the state of homelessness, they cannot legislate in a way that is indifferent to homeless persons’ Charter rights. It also emphasized that, just because a case involves publicly owned property, it does not make the case about property rights.

The 2015 British Columbia Supreme Court decision in Abbotsford (City) v Shantz, 2015 BCSC 1909 (“Abbotsford”) reiterated the court’s reluctance to recognize that the Charter creates obligations on the government to provide social and economic rights. In Abbotsford, the Drug War Survivors (DWS) argued that certain city bylaws are unconstitutional and infringe upon various rights of the homeless under the Charter, including section 7.

The events that led to Abbotsford began with City employees spreading chicken manure on “the Happy Tree Camp” created by homeless persons on Gladys Avenue with the intention to force homeless persons to dismantle and leave their camp. Shortly after, Mr. Shantz and others created a tent camp in Jubilee Park without permission from the City. Many of the occupants of the tent camp moved into a wooden structure in the parking lot of Jubilee Park. The City obtained a Court Order for the occupants of the tent camp to vacate Jubilee Park. After the homeless people were continually forced to keep moving, with varying outcomes, some of them returned to erect tents along Gladys Avenue. The city also used blanket prohibitions against gathering in public spaces without a permit to keep the homeless forming any visible presence in public parks. By the time the case was presented in Court, the City managed to tolerate a small area of tents for the homeless people.

The DWS argued that the city bylaws in question conflicted with the principles of fundamental justice because they displaced the city’s homeless population and excluded their presence from public spaces. As a result of this continuous displacement, homeless people are denied the ability to “obtain the basic necessities of life, including survival, shelter, rest and sleep, community and family, access to safer living spaces, and freedom from the risks and effects of exposure and sleep deprivation”.

The DWS argued that there is a lack of accessible shelter for the city’s homeless population. Homeless people face a number of barriers in accessing shelter and housing. Also, with the many risks that homeless people face, many prefer to seek shelter out-of-doors and set up camps in order to look after one another. However, the city made the claim that the homeless are sleeping out-of-doors in camps because they are choosing not to follow the rules set out for all members of the. In similar fashion to other cases, the court rejected the assertion that homelessness is a choice.

The DWS also argued that the city failed to provide adequate housing for the homeless. The court’s position on the duty of the city to develop housing for the homeless was to reiterate that this falls within the scope of the legislature to decide rather than that of the court, emphasizing the perspective that courts do not create positive social obligations.

Justice Hinkson concluded in Abbotsford that “homelessness is a risky, but legal activity and enforcement of the impugned bylaws heightens the health and safety risks that the city’s homeless face.”  Justice Hinkson did acknowledge the liberty and security of person interests as outlined as discussed by the Supreme Court of Canada (“SCC”) in Carter v Canada, 2015 SCC 5. He also acknowledged that a homeless person’s liberty interest is violated when the city bylaw interferes with that person’s ability to shelter oneself when there is no other alternative. However, Justice Hinkson rejected the idea that the Court has a role in mandating a governmental obligation to help people acquire the basic necessities of life.  In doing so, Justice Hinkson specifically mentioned the definition of a “legal principle”, which was previously defined by the SCC in R v. Malmo-Levine, 2003 SCC 74 as one within the sphere of the judiciary and not public policy.

Ola Malik and Megan Van Huizen point to an important thread in how an issue is framed in Adams and Abbotsford, namely that the courts in Adams and Abbotsford recognized that:

[T]he homeless have a constitutionally protected liberty right under section 7 of the Charter to sleep overnight in parks under temporarily erected overhead shelters where a municipality does not have sufficient accessible shelter space to accommodate them.

The court in Abbotsford framed the section 7 Charter question as one which asks if the bylaw is depriving someone of an interest rather than requiring the City to grant the provisions for adequate food, shelter or any other basic necessities of life. Malik and Van Huizen note that while the Courts continue to avoid placing positive obligations on the government to provide for an adequate living standard for everyone, there is a constant reminder in the legal and social spheres that it is an issue that must be addressed in some way, whether by the judiciary or the legislature.

While homeless litigants have been successfully able to rely on Charter section 7 arguments to shield themselves from the adverse effects of bylaws (such as those described above), they have also tried to rely on Charter subsection 15(1), which has taken more of a supporting role in these cases. Charter s 15 reads:

15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The use of equality arguments such as the disproportionately negative effects of bylaws on a city’s more vulnerable population such as the homeless are illustrated in the case of Abbotsford. DWS challenged certain sections of the city’s bylaws concerning the use of public spaces and the prohibition of the erection of temporary shelters for homeless persons, and their enforcement, alleging that they targeted the homeless population and infringed their Charter rights under sections 2(c), 2 (d), 7 and 15(1). The Court concluded that homeless individuals should be allowed to erect temporary shelters and to camp overnight in city parks when there is not enough shelter space available.

In trying to pinpoint a definition of homelessness, Justice Hinkson in Abbotsford adopted the accepted definition in Adams, BCCA, which states that a homeless person is an individual “…who has neither a fixed address nor a predictable safe residence to return to on a daily basis”. Justice Hinkson noted that homeless people are diverse in character, which increases their vulnerability and often have battles to contend with on many fronts.

In Abbotsford, DWS submitted that the disputed bylaws and displacement tactics by the City discriminated against the homeless and perpetuated and worsened substantive inequality, thus were unconstitutional and violated their subsection 15(1) equality rights under the Charter. They also argued there was a compounding effect on the homeless who generally are composed of vulnerable groups, such as persons with disabilities, Aboriginal peoples, other racial minorities, and vulnerable economic and social beginnings.

In Abbotsford, the contextual factors were never addressed in the substantive equality analysis. Justice Hinkson briefly acknowledged the historical mistreatment of Aboriginal people and persons with disabilities, yet he did delve deeper into a formal equality analysis. Although Chief Justice Hinkson acknowledged the disputed bylaws might have a greater impact on the homeless, he concluded that they are treated in the same way as everyone else. Unfortunately, in this case, the court missed what could have been an excellent opportunity to look at substantive equality through an adverse effects discrimination lens, and to apply this analysis to the bylaws in question and their effect on homeless people.

The next phase of inquiry moves to the question of whether cities and municipalities can justify the violations of either Charter section 7 or 15(1) under section 1 of the Charter.

Section 1 of the Charter takes into consideration the greater public interest and is the means by which the government may be justified in infringing an individual’s rights and freedoms under the Charter. Charter section 1 states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In both Adams and Abbotsford, the governments’ violations of the litigants’ Charter s 7 rights were not justified under Charter s 1. The Courts proceeded to provide remedies, such as making a Declaration that overnight sleeping be permitted between 7 p.m. and 9 a.m., and also making a Declaration that Sections of bylaws that apply to homeless persons and prohibit sleeping or being in a City park overnight or erecting a temporary shelter without a permit are of no force or effect.

While sections 7 and 15(1) of the Charter may be successfully used to shield homeless persons from the adverse effects of parks and streets bylaws, much work needs to be done if we seek to rely on the Charter to argue for a right to adequate housing.