November 21, 2024
The Case FOR Section 2(b) in Decampment Litigation
This article investigates the possibility of using section 2(b) of the Charter of Rights and Freedoms,[1] which protects the freedom of expression, to challenge decampment policies: those which displace unhoused people sheltering in encampments. Part I explored section 2(b)’s limitations in this context, which may include inappropriately blaming unhoused people for systemic barriers, framing life-threatening harm as a secondary concern, burdening non-governmental agencies bringing litigation on behalf of unhoused people, over-expanding the scope of section 2(b), and failing to provide meaningful solutions to the housing crisis. Despite these problems, I argue here that there are also scenarios where a Charter challenge on these grounds may be useful, either as an alternative to a section 7 challenge or in tandem with it.
Issues with Sections 7, 8, 12, and 15
Section 2(b) may be a helpful alternative to section 7 — the right to life, liberty and security of the person[2] — when challenging decampment policies given that section 7 is not engaged if sufficient local shelter space exists to accommodate encampment residents.[3] Although availability and accessibility must be considered in assessing shelter space,[4] a court’s definition of what meets this criterion often falls short of the expectations of unhoused people. In Black v Toronto (City), for example, the Ontario Superior Court of Justice refused to suspend enforcement of a law displacing encampment residents during the COVID-19 pandemic.[5] In reaching this decision, the Court reasoned that the safety precautions taken by local shelters were enough to negate threats to life, liberty, and security of the person despite unhoused persons’ fears about contracting COVID-19 and expert evidence that residing in shelters can increase the risk of infection.[6] Similarly, encampment residents were denied an injunction blocking the enforcement of decampment bylaws in Poff v City of Hamilton.[7] In that case, unhoused persons pointed out a variety of issues with the policies (or lack thereof) at available shelters, including those regarding couples, substance use, reserving beds, and concerns about conflicts between unhoused people and shelter staff. The Court did not agree, however, that these issues placed unhoused persons at risk of irreparable harm,[8] and ruled that the municipality’s accommodations were good enough.[9]
The problem with this is that even if shelter space is technically available, other considerations can influence a person’s decision to shelter in an encampment rather than with a social service organization. In a recent interview with the Centre for Constitutional Studies (CCS), Professor Anna Lund — a legal scholar at the University of Alberta and member of the litigation team that recently challenged the City of Edmonton’s decampment policies[10] — noted that shelters are often tied to religious organizations that may feel unsafe for Indigenous people with experiences of residential schools. She added that some people may avoid shelters because assaults can occur in shared sleeping settings.[11] Section 7 may be particularly ineffective in such cases, as courts may be less likely to recognize those kinds of barriers to shelter accessibility. According to Lund, “[i]t can be hard to hear those stories when they’re so different from our own experience, and we might think, ‘of course I would rather go stay at the shelter than sleep outside when it’s minus 30.’ But until you’ve walked the walk, it’s hard to understand the ways people’s choices are constrained.”
Other Charter sections used to challenge decampment laws when section 7 is not engaged are far from a slam dunk. Section 8’s ability to shield unhoused people from unreasonable search and seizure is reduced given precedent refusing to recognize a tent as a home.[12] Correspondingly, this lowers the expectation of privacy encampment residents are afforded and removes the need for a search warrant.[13]
Relatedly, while section 15 — the Charter’s equality rights provision — may shield certain disparately impacted communities from decampment policies, the BC and Ontario Superior Courts’ rejection of homelessness as an analogous ground[14] means that this shield won’t be available to all encampment residents, but only to those who can demonstrate a disparate impact on another protected group to which they belong.
There also seems to be minimal support for challenging the law on the grounds of section 12. A section 12 argument was advanced but not addressed in Victoria (City) v Adams because section 7 was sufficient to strike down the impugned law.[15] The Attorney General of British Columbia, however, argued that a bylaw is a passive prohibition rather than an action taken by the state, so it does not engage section 12.[16] The Coalition for Justice and Human Rights planned to challenge this notion in the Edmonton encampment litigation by arguing that active efforts to remove encampments count as state action and thus engage section 12, but this action was dismissed based on a lack of standing.[17]
Given the difficulties that section 7 and its traditional Charter alternatives present in an encampment context, then, there is room for creative arguments on section 2(b) grounds. Of course, a freedom of expression claim might not be the most natural fit when applies to homeless encampments, and it doesn’t necessarily highlight the harm decampment policies pose to the physical and psychological well-being of unhoused people. However, a 2(b) argument in this context may nonetheless function as a means to an end, and if applied successfully, it can be used to challenge decampment policies in the same way that section 7 can. As such, section 2(b) should not be overlooked.
Acts of Resistance
Some homeless encampments are erected in a way that may bring them closer to the scope of expression recognized by courts — activity which conveys or attempts to convey meaning[18] in a non-violent manner.[19] They may be adorned with signage,[20] be intentionally placed in conspicuous view of lawmakers,[21] be named in a manner that suggests a political agenda,[22] or be maintained after notice is given that the encampment will be cleared as a message of opposition to decampment laws or policies.
The maintenance of encampments when local shelter space is available may also lend credence to a section 2(b) claim under some circumstances. In Vandenberg v Vancouver (City) Fire and Rescue Services, the Supreme Court of British Columbia remarked that sheltering outdoors when indoor shelter space is unavailable is not a free choice.[23] By contrast, if an unhoused person shelters in an encampment when they are aware that indoor shelter space is available, this action might be viewed as an intentional attempt to convey the unsuitability of the shelter for that person, bringing it into the realm of section 2(b) protection.
Professor Richard Moon — a law professor and freedom of expression expert at the University of Windsor — agrees that although homeless encampments are ordinarily understood as an act of necessity, they might occasionally fall within the scope of expression when they have features that actively convey a message beyond survival. He notes that such supplemental qualities were not created equal, however; setting up a tent in an expressive location is probably easier to categorize as intentional communication than choosing not to accept shelter space for personal reasons. “Again,” Moon says, “if someone feels safer or more comfortable in a particular place or within a particular community, that’s still about their own ... needs and preferences and is not intended to convey a message to others. Absent such an intention, their act would not count as expression” (see here).
Exactly how much effort is required to bring an act into the realm of intentional communication remains elusive. If adorning an encampment with a single sign bestows section 2(b) protection upon it, then lawyers representing unhoused people can offer their clients a simple piece of advice that could significantly bolster their ability to challenge decampment laws. On the flip side, the notion that such a small, superficial change could be the difference between a decampment law being successfully challenged or not might seem like a long shot.
Although the line between expressive and non-expressive behaviour in the context of homeless encampments is somewhat murky, the problems that arise when intentionally expressive encampments are not viewed through a section 2(b) lens are clearer. If section 7 does not apply due to the availability of accessible shelter beds, section 2(b) could be a missed opportunity for litigators seeking to challenge decampment policies. Even if section 7 does apply, there could be value in acknowledging and protecting the expressive intent behind certain encampments by making a section 2(b) claim.
Moreover, it is worth noting that unhoused people may face barriers to forms of expression traditionally accepted by courts. They may not have access to the materials needed for leafleting or demonstrating and may be hesitant to try and obtain these materials due to the risk of theft, vandalism, or state seizure of their property when they leave it unattended in their encampment. Given these constraints, litigants and courts should be prepared to think differently about what might qualify as expressive activity in an encampment context.
Reinforcing Principles of Fundamental Justice
Even if section 7 presents a clear way of challenging a particular decampment policy, a section 2(b) claim could still be useful as a means of strengthening the claimant’s ability to meet the second stage of the section 7 legal test, which requires them to show that a principle of fundamental justice has been defied by government.[24]
Gross disproportionality is one of the three principles of fundamental justice used most frequently to argue a section 7 claim,[25] and it is in play when a law’s effects are “totally out of sync” with its objectives.[26] Some decampment laws have violated gross disproportionality by producing adverse impacts on unhoused people deemed to outweigh their property-management related objectives.[27] Given that gross disproportionality is reserved for only the most serious cases,[28] however, it may be significantly more challenging to demonstrate that a law breaches this principle for laws that address more publicly pressing issues than the protection of individual property rights. In Vandenberg, for example, unhoused persons challenged a bylaw ordering the removal of their encampment due to the alleged fire hazard the encampment posed. The claimants argued that the bylaw was arbitrary and overbroad — two of the three main principles of fundamental justice addressed in section 7 claims — but did not advance an argument about gross disproportionality.[29] This might reflect the litigation team’s awareness of the difficulty in making such a claim for a law intended to promote public safety.
That said, a section 2(b) violation could help claimants meet the steep threshold for demonstrating gross disproportionality by providing evidence of a law’s heavy-handed impact on people living in homeless encampments. This could be particularly helpful for decampment laws with safety-related objectives requiring a more severe imbalance between a law’s effects and its objectives to establish gross disproportionality. Showing that decampment legislation or policies infringe an unhoused person’s freedom of expression rights could help tip the scale in favour of a violation, particularly if it is demonstrated alongside other detrimental impacts on unhoused people.
A more ambitious argument could also be made that section 2(b) might be used to bypass gross disproportionality entirely. In the landmark Supreme Court of Canada case of R v Morgentaler (1988), Justice Wilson asserted that “a deprivation of the section 7 right which has the effect of infringing a right guaranteed elsewhere in the Charter cannot be in accordance with the principles of fundamental justice.”[30] This means that, in Wilson’s view, if a decampment bylaw infringes life, liberty, or security of the person along with freedom of expression (or any other Charter right), the second stage of the section 7 test is complete, and the court would move on to examine the government’s justification of its policies per section 1 of the Charter.
Wilson’s argument comes with significant hurdles, however. First, the argument is persuasive rather than binding, since it was advanced in a concurring judgment that no other justice signed. Second, the limited cases employing this reasoning do not address encampments and have had mixed success (lower courts have embraced[31] and rejected[32] Justice Wilson’s remarks). And third, some judges and scholars may object to Wilson’s position on the grounds that it might make it too easy to successfully bring a section 7 claim. Indeed, this last point is especially true with respect to section 2(b), since the threshold for demonstrating a 2(b) is extremely low. If clearing this low bar automatically fulfills the additional requirement of demonstrating a principle of fundamental justice violation, the scope of section 7 could be significantly expanded. Nevertheless, as a generally unsettled area of law, this reasoning is available for legal teams to pursue, and if accepted by a court, it could help litigators avoid the previously discussed pitfalls associated with a section 7 Charter challenge.
Conclusion
Across Canada, homelessness is being criminalized using legislative means, and these laws are being enforced against individuals despite the lack of publicly available and safe shelter space.[33] Encampment residents receive tickets, face eviction, and have their personal property seized or damaged for existing within public space.[34] This is occurring at a time when the number of unhoused people has significantly increased; a recent point-in-time count conducted by Infrastructure Canada determined that between 2018 and 2022, the number of enumerated unhoused people increased by 20 per cent.[35] Given these circumstances and the challenges inherent in demonstrating other Charter violations in this context, legal teams representing encampment residents must consider all viable legal strategies. Although section 2(b) presents both benefits and drawbacks in this context, there is potential, I suggest, for this Charter protection to play a greater role in challenging the constitutionality of decampment legislation.
[1] Canadian Charter of Rights and Freedoms, s 2, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[2] Ibid note 7, s 7.
[3] See Black v Toronto (City), 2020 ONSC 6398 [Black]; Poff v City of Hamilton, 2021 ONSC 7224 [Poff].
[4] Regional Municipality of Waterloo v Persons Unknown and to be Ascertained, 2023 ONSC 670 at para 93 [Waterloo].
[5] Black, supra note 3.
[6] Ibid.
[7] Poff, supra note 3.
[8] Ibid at para 251.
[9] Ibid at para 247.
[10] Coalition for Justice and Human Rights Ltd v Edmonton (City), 2024 ABKB 148.
[11] Cindy Tran, “Assaults at Edmonton’s two largest homeless shelters steadily increasing: report”, Edmonton Journal (19 June 2024), online: <edmontonjournal.com> [perma.cc/SD9C-JMKD].
[12] See R v Picard, 2018 BCPC 344 at para 41.
[13] Sarah Ferencz et al, “Are Tents a ‘Home’? Extending Section 8 Privacy Rights for the Precariously Housed” (2022) 67:4 McGill LJ 369 at 371.
[14] Tanudjaja v Attorney General (Canada)(Application), 2013 ONSC 5410 at paras 122-137; Abbotsford City v Shantz, 2015 BCSC 1909 at para 231 [Abbotsford].
[15] Victoria (City) v Adams, 2008 BCSC 1363 at para 240.
[16] Written Submissions of the Intervenor the Attorney General of British Columbia, Victoria Registry No 054999 at paras 96-101.
[17] Supra note 10 at para 2; The United States Supreme Court recently held that unhoused people cannot be shielded from decampment laws by declaring such laws to be cruel and unusual punishments (City of Grants Pass, Oregon v Johnson et al, 2024 USSC 23-175). This decision is not binding on Canadian courts, and there are key differences between the American and Canadian Constitutions: the eighth amendment covers cruel and unusual punishment (“Eighth Amendment”, Library of Congress, online: <constitution.congress.gov> [https://constitution.congress.gov/constitution/amendment-8/]) whereas section 12 of the Charter extends to cruel and unusual punishment and treatment (supra note 1, s 12). Canadian courts, however, may still find this judgement to be persuasive.
[18] Irwin Toy Ltd v Quebec (Attorney General), 1989 CanLII 87 (SCC) at 968-969.
[19] Ibid at 970.
[20] “Homeless encampment at Victoria Square set up by advocates”, CityNews (1 May 2024), online: <montreal.citynews.ca> [perma.cc/L3D3-EBX3].
[21] “Encampment outside Hamilton City Hall continues” CHCH News (1 March 2024), online (video): <youtube.com> [perma.cc/8HBY-KSWZ]; Tyler Harper, “Tents pitched at Nelson City Hall to protest loss of homelessness program”, Nelson Star (22 March 2024), online: <nelsonstar.com> [perma.cc/8HVS-4Y56]; In an interview with the CCS, Professor Anna Lund referred to an unhoused person who intentionally set a tipi up in front of Edmonton’s city hall (see interview posted on this blog).
[22] Dexter McMillan, “The Charter of Rights Can Protect Homeless Campers. Is that Enough?”, The Tyee (27 June 2019), online < https://thetyee.ca/News/2019/06/27/Charter-of-Rights-Tent-City/>.
[23] Vandenberg v Vancouver (City) Fire and Rescue Services, 2023 BCSC 2104 at para 133 [Vandenberg].
[24] “Section 7 – Life, liberty and security of the person” (last modified 29 June 2023), online: <justice.gc.ca> [perma.cc/CS4K-N59P].
[25] Nader R Hasan, “Three Theories of ‘Principles of Fundamental Justice’” (2013) 63 SCLR: Osgoode’s Annual Constitutional Cases Conference 339 at 342.
[26] Canada (Attorney General) v Bedford, 2013 SCC 72 at para 120.
[27] In Waterloo, the Ontario Superior Court of justice acknowledged that a camping prohibition adversely impacted unhoused persons’ health, privacy, safety, and service access — particularly for those living with mental illness or addictions — and thus outweighed the law’s objectives to maintain properties and general operations (Supra note 4 at paras 117-119.) Similarly, in Abbotsford, the Supreme Court of British Columbia held that encampment restrictions detrimentally impacted unhoused persons’ health and ability to receive social services, outweighing the law’s intent to support property management (Abbotsford, supra note 14 at paras 19, 209, 213, 219, 224).
[28] Supra note 26 at para 120.
[29] Supra note 23 at para 152.
[30] R v Morgentaler, 1988 CanLII 90 (SCC) at 37.
[31] Jane Doe v Manitoba, 2004 MBQC at para 80; this case was partially repealed on another point.
[32] Dreyshner v Richmond (City), 2017 BCSC 705 at paras 61-63.
[33] See e.g. supra note 23; supra note 4.
[34] Alexandra Flynn et al, Overview of Encampments Across Canada: A Right to Housing Approach (Office of the Federal Housing Advocate, 2022) at 7, online: <homelesshub.ca> [perma.cc/LFF8-YHPN].
[35] Everyone Counts 2020-2022 – Results from the Third Nationally Coordinated Point-in-Time Counts of Homelessness in Canada, Cat. No. T94-54/2024E-PDF (Infrastructure Canada, 2024) at 10, online: <housing-infrastructure.canada.ca> [perma.cc/M4UB-VBMK].
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