Sitting on a Downtown Eastside sidewalk, 32-year-old Terry Peltier doesn’t look homeless. However, he told the Georgia Straight that he has been without a dwelling for a year. “If I had a home, I’d be sitting at home—and I wouldn’t be on the street,” Peltier said.

He claimed that any effort to get rid of homeless people before the Olympics would be against a person’s “constitutional” rights.

Would it stand the test of Section 1 of the Canadian Charter of Rights and Freedoms?

The provincial government should ponder this question before it creates a law to allow authorities to forcibly remove the homeless from the streets, according to legal experts.

William Black, a UBC professor emeritus of law, and Robert Diab, a legal-studies instructor at Capilano University, commented separately on a Liberal government plan to introduce legislation this fall to enable police and paramedics to round up street people during extreme weather conditions.

Section 1 of the charter “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”.

Off the bat, Black cited three legal rights that may be violated in the yet-to-be-tabled Assisting to Shelter Act. Section 7 of the charter guarantees that no one can be deprived of liberty “except in accordance with the principles of fundamental justice”. Section 9 states that “everyone has the right not to be arbitrarily detained or imprisoned.” Third, Section 15 provides that everyone has the “right to the equal protection and equal benefit of the law without discrimination”.

Asked how the government can cure constitutional violations that may arise from the legislation, Black told the Georgia Straight: “I’m not absolutely sure that they can, other than not passing it.”

Black noted that the potential legislation is obviously different from the Mental Health Act, which allows the detention of people with mental-health issues. “Presumably, this would mainly apply to people who can’t be detained under the Mental Health Act and so who are presumably rational people who are capable of looking after their own interests,” he said. “And the question would be whether the courts would say that it’s just too much of a deprival of their liberty to tell them, ‘We’re doing this for your own good.’ For adults who are of sound mind, there’s certainly an argument that they have a right to run their lives as they want, even if maybe from somebody else’s perspective they aren’t making the right choice.”

For his part, Diab explained that the proposed law must pass a three-hurdle test to meet the requirements of Section 1. One, the goal of the legislation should be sufficiently important to society. Two, the measures set out should be proportionate to the avowed objective of the law. Finally, there is the question of whether the law “minimally impairs” rights guaranteed under the charter.

“Is there a more moderate way of doing what the government wants to do? That’s kind of the idea,” Diab told the Straight.

Will the province invoke Section 33 for the first time in its history? Legally known as the “notwithstanding clause”, this provision allows Parliament or the legislature of a province to pass legislation contrary to fundamental and legal rights guaranteed under the charter. Such a law would have a five-year limit, but it can be reenacted.

“I’d be very disappointed if they did, because what that says is even if it isn’t a reasonable limit, we can still do it,” Black said.

Diab doubted that the province would take this step, suggesting that “it’s too politically controversial to invoke Section 33.”

Quebec included the notwithstanding clause in all legislation brought before its national assembly between 1982 and 1985. This provision has been invoked only three other times, in Yukon, Saskatchewan, and Alberta.

Both Black and Diab acknowledged that the legislation may yet survive a charter challenge, depending on how it is crafted.

“The more safeguards they build in, the more likely it is that the courts will uphold it, maybe under Section 1, and it’s just very difficult to tell until we see the legislation,” Black said.

Increase in street people found in 2008 Metro Vancouver homeless count

> The number of people who went without shelter on the night of the March 11 count increased by almost 450 from 2005, according to a 24-hour “snapshot” by the Metro Vancouver homelessness committee.

> The percentage of street homeless rose from 52 percent of the homeless population in 2005 to 59 percent, or 1,574 individuals, in 2008.

> Three out of four of those enumerated slept on the street or in public spaces.

> About 32 percent of the street homeless indicated that they did not stay in shelters because they disliked them. Reasons included bedbugs, filthy conditions, restrictive rules, noise, theft, and limits on how long they could stay.

> Some 261 of the street homeless, or 19 percent, tried to stay in a shelter bed on the night of the count but were turned away for various reasons.

Source: stophomelessness.ca