Pivot Legal Society - Equality Lifts Everyone

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Where will the homeless sleep?

Today we have an op-ed piece published in the Vancouver Sun online about the Occupy encampment at the Vancouver Art Gallery and the homeless people who have joined them. 

In cities across North America, homeless people have been flocking to the Occupy sites to partake in the community, food, medical care, outreach and safety in numbers.  Beyond the creature comforts and necessities, Occupy’s platform - which includes housing and homeless issues -  is something that homeless people can relate to and support.  This is a widespread phenomenon and in some locations the number of homeless people associated with Occupy is quite large.  For example, In Phoenix – a city with a poverty rate of 18% - homeless make up about 40% of the large Occupy encampment.  In Vancouver, we have several dozens of homeless who are calling the Art Gallery “home” for the time being.

This week – from Wednesday through Friday - the City of Vancouver is trying its fate in the BC Supreme Court and seeking a court injunction to rid the Gallery grounds of the Occupy encampment.  If successful, then the City will have court-sanctioned powers to break down and remove tents and arrest people who stand in their way.  Strangely enough, the City had these powers all along through its by-law enforcement powers and didn’t need the Court’s blessing.  The advantage of the BCSC’s “seal of approval”, of course is that the City can distance itself from what the police are doing and deflect some of the criticism of its heavy handed approach.

In the editorial, we ask “what will be the fate of these homeless people?” when the City enforces its injunction.  It’s a good question.  The City’s response is that everyone will end up in a shelter.  Nice if that were so, but the reality boils down to a math problem:  the number of homeless people minus the number of shelter beds equals homeless people who have to sleep on the street.  There simply aren’t enough shelter beds for everyone.  Plus, some people just can’t be in a shelter.  There are both insecurity and stigma attached to them that can be too much for some people.

So, given that everyone has to sleep somewhere, and some homeless people have to sleep outside, where can they legally go?  Not on the streets (including sidewalks and boulevards) – the Street and Traffic By-law says that’s not legal.  Not in the Parks – the Parks Control By-law prevents that too.  Every other patch of City property is covered off by the Land Regulation By-law, which makes it illegal everywhere else.  The Land Regulation By-law is the one that the City is seeking to enforce in its injunction.

One thing the City may not have anticipated about the court process though is that the Occupy protesters and even some homeless people have “lawyered up” as they say.  So, the City should prepare to have its authority to evict countered with arguments about the Occupiers’ right to expression and the homeless campers’ right to not have their life, liberty or security of the person threatened.

In 2008, the BC Supreme Court determined that when shelter space was inadequate, Victoria’s by-laws that prohibited camping and erecting a temporary shelter over oneself were unconstitutional (the Adams case).  In 2010, the Court of Appeal upheld this decision.  Now, in Vancouver, we are faced with a similar situation.  Given the restrictive by-laws that prohibit camping on streets, in parks, or on any other Vancouver City land, there is literally no place that some homeless can legally sleep at night.  In all likelihood, Vancouver’s restrictive by-laws, just like Victoria’s, are unconstitutional when they lead to increased risks to the life, liberty and security of homeless people. 

We’ve been asking the City to clarify its position on the by-laws after the Adams case.  They’ve evaded the question like a coy debutante.  Now, in the front and centre of its own application, we again invite the City to address the effect of these by-laws on homeless people.  The ultimate question is whether homeless people have a right to sleep outside?  We say that the answer to that question is a resounding “yes” for not only compassionate and moral reasons, but for practical ones as well.  No matter how much we all wish the homeless problem in Vancouver was solved, we’re not there in 2011.  There will be people sleeping outside on every night of the year.  As a society, it is our responsibility and obligation to make sure that they can do so in the safest and least harmful way.