Covid-19 spreads easily in crowded spaces, so when the virus arrived in Toronto’s homeless shelters in March, a charity group responded by handing out tents. The idea was to give homeless people a way to practice physical distancing, potentially saving their lives.
Soon after, tent cities started popping up under the elevated Gardiner Expressway, on the median of University Avenue, and squeezed in between condo towers in several downtown parks.
Despite the seemingly noble intent, the encampments appear to have created new dangers. After a man died in a fire at an encampment in May, Toronto Fire confiscated 100 litres of gasoline and 17 propane tanks from various tent cities. The sites have become filled with garbage, which leads to rats. There’s no running water, which makes hand washing difficult. Drug trafficking is rampant. And many of the inhabitants aren’t actually social distancing, which was the point of handing out tents.
Some people who live near the encampments say they no longer feel safe. One woman whose townhouse backs onto a new tent city told CityNews that a metal bar was thrown at her after she complained to her noisy new neighbours.
The City of Toronto has responded by moving more than 2,500 people into new shelter spaces, allowing for safe physical distancing. But some members of the tent cities have refused to leave, saying that they prefer to live outdoors. The city has begun to remove the encampments of homeless people who refuse to accept offers of indoor housing. Can they really do that?
To answer this question, it’s helpful to look at some recent court decisions from British Columbia, where tent cities have caused conflicts for decades. B.C.’s Court of Appeal said in 2009 that there is no “freestanding constitutional right to erect shelter in public parks.” At the same time, the court confirmed the lower court decision from the case Victoria v. Adams, in which Justice Carol Ross of the B.C. Supreme Court found that, in situations where there aren’t enough shelter beds available, laws that prevent homeless people from using things like tents and tarps to shelter themselves from the elements are unconstitutional. Justice Ross said these kinds of laws violate the right to “life, liberty and security of the person” guaranteed to all Canadians by section 7 of the Charter of Rights and Freedoms, one of our main constitutional documents.
“Security of the person” is generally understood to refer to the right not to have the government interfere with one’s bodily integrity. Justice Ross said that a person prevented by the government from sheltering himself from risks like hypothermia has had his security of the person violated.
Justice Ross said his liberty was also breached. According to her, “the basic theory underlying the Charter” is that “the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life.” That includes the “right to make fundamental personal decisions without interference from the state.”
“Creating shelter to protect oneself from the elements is a matter critical to an individual’s dignity and independence,” according to Justice Ross.
The Charter says that Section 7 rights can be interfered with so long as that interference is “in accordance with the principles of fundamental justice.” Justice Ross found (and the appeal court agreed) that a bylaw banning all structures is not in accordance with the principle of fundamental justice against overbroad laws. The Supreme Court of Canada’s definition of overbroad laws are those in which the state “in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective (such that) individual’s rights will have been limited for no reason.” Justice Ross reasoned that Victoria’s bylaw was overbroad in part because the objective was to prevent the tent users from permanently taking over the parks, “yet all overhead protection, including that taken down every morning, is prohibited.” In other words, governments appear to be free to write laws preventing 24-hour encampments, but they can’t constitutionally stop people with nowhere else to sleep from using tents or tarps to protect themselves at night.
B.C.’s tent cities conflicts didn’t end with the Victoria v. Adams ruling, so the issue was revisited in the 2015 case Abbotsford v. Shantz. Abbotsford, a small city outside Vancouver, had passed a bylaw prohibiting people from using parks overnight without a permit. That required having a credit card, effectively excluding most homeless people. The City of Abbotsford wanted to use their bylaw to get an injunction against what the city viewed as a dangerous 24-hour tent city.
B.C. Supreme Court Chief Justice Christopher Hinkson agreed with the city that the camp was dangerous, noting that, despite city-provided sharps containers and garbage collection, “the ground is littered with garbage (e.g., batteries, used propane tanks, rotten food, drug paraphernalia, and human waste) and there are many used needles on the ground.” He accepted that there was a rat infestation, fights, dangerous weapons, and a significant fire risk.
However, Chief Justice Hinkson—just like Justice Ross—concluded that “denying the City’s homeless access to public spaces without permits and not permitting them to erect temporary shelters without permits” was a violation of Section 7. The law was not in accordance with the principle of fundamental justice against gross disproportionality, he said. Like Justice Ross, Chief Justice Hinkson did not recognize a right to building 24-hour encampments. Instead, he said that the city was required to allow shelters for sleeping at night, from 7 p.m. to 9 a.m.
That same year, the Province of British Columbia went to court seeking a court order that would allow it to dismantle an encampment outside a courthouse in Victoria. The first attempt at an injunction sought in the case British Columbia v. Adamson failed, but Chief Justice Hinkson granted one several months later. What had changed? Two things. First, the camp had become “unsafe for those living there and for the neighbouring residents and businesses.” Since the first attempt to get an injunction, there had many more serious assaults, at least 13 drug overdoses, a scary fire and one death. The camp was found to contain axes and knives, aggressive dogs, large amounts of drug paraphernalia, evidence of public urination and defecation, and rats’ nests. The other thing that had changed was that there appeared to finally be sufficient indoor shelter space for the homeless. Justice Hinkson reasoned, like Justice Ross in Victoria v. Adams, that the constitutional right to shelter oneself was limited to situations where there aren’t enough beds.
Justice Ross said something else in Victoria v. Adams that might be particularly relevant during the Covid-19 crisis, when crowding makes sleeping close to other people dangerous. “If the shelters were truly unsafe, it might be that it would still be an infringement of s. 7 to require the homeless to attend at shelters or sleep outside without their own shelter,” Justice Ross wrote. “However, if the shelters were safe alternatives, it may not be a breach of s. 7 for the homeless to be required to make that choice.”
Taken together, these decisions make clear that it is unconstitutional for cities to prevent homeless people from putting up tents in parks overnight to shelter themselves, so long as there is no safe place for them to sleep indoors. At the same time, it appears to be constitutional for cities to remove dangerous 24-hour encampments that are taking over parks and other spaces.
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