Reasonable Doubt: Should the law protect the homeless?

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      Vancouver is special in many ways that bring world-class events to our city: the Winter Games and the TED conference, to name a few.

      The side Vancouver is less proud of and which many people acknowledge, but ignore, is the homeless situation in Vancouver.

      The 2014 Homeless Count found that there is a total of about 2,700 homeless persons living in Vancouver, about 35 percent of which are unsheltered. That means that they are sleeping outside of any kind of fixed shelter. That number has remained “fairly stable” since 2008, seeing only a four percent increase, although numbers of homeless are still far higher than in 2002, when the count started.

      The good news is that both the percentage as well as the absolute number of people getting shelter has increased since the last count was done in 2011. Things are getting better, but they’re still not good enough.

      Many advocacy groups are challenging bylaws that make it an offence to set up rudimentary shelter in Vancouver. Similar Victoria laws were declared unconstitutional by the B.C. Court of Appeal in 2009. There, the court acknowledged the difficult question underlying the cause of homelessness, but recognized that it was not a voluntary choice in the vast majority of cases.

      Beyond those municipal bylaws, the plain reality is that the homeless population is routinely discriminated against in one form or another. Homeless people are denied access to coffee shop washrooms, to sit in public parks, and are often regarded as pests by their mere presence or suspected of wrongdoing.

      There are many more examples, one of which is presently the subject of ongoing litigation at the B.C. Human Rights Tribunal and the Supreme Court of B.C. In Pivot Legal Society v. Downtown Vancouver Business Improvement Association and another (No. 6), the B.C. Human Rights Tribunal addressed the issue of Vancouver’s “Downtown Ambassadors” ejecting homeless persons from public spaces in places like Coal Harbour. Importantly, the ambassadors were not police officers or people charged with enforcing municipal bylaws. Almost certainly, the intention was to make the city appear better kept by segregating the homeless population to the Downtown Eastside.

      This is a controversial issue—some would expect that sidewalks and parks are public spaces, free for anyone’s use. Certainly, few would expect mild vigilantism from people who basically do the same work as a Walmart greeter.

      Others would suggest that people should not be allowed to loiter, particularly people who might be using drugs, panhandling, or setting up shelter.

      The complainants in that case faced a real hurdle: the Human Rights Code does not protect people from being discriminated against on the basis of homelessness. Jason Gratl and Megan Vis-Dunbar, counsel for the complainants, approached this matter arguing that, because homeless persons are disproportionately First Nations, suffer from substance abuse problems or mental health problems, or some combination thereof, that the tribunal ought to find that discriminating against homeless persons was tantamount to discriminating against people with mental health or substance abuse problems or of First Nations descent.

      Gratl and Vis-Dunbar, who did the 26-day hearing pro bono, relied on previous decisions that held that discrimination can occur where a program has a discriminatory effect on a sub-group relative to the larger group which is actually being targeted. For example, a fitness standard for firefighters was found to be discriminatory toward female firefighters, when it was proven that that fitness standard was not truly necessary to do the job and prevented women from becoming firefighters.

      The case raises larger policy questions for law makers: should socio-economic conditions be protected in the same way that gender, sexual orientation, and ethnicity are? If so, then how?

      Gratl is now arguing before the Supreme Court of B.C. that the Human Rights Code should be interpreted as including the social condition of being homeless.

      The B.C. Human Rights Coalition, a non-partisan advocacy group, agrees that one’s social condition should be protected by the code. However, it feels that such a change could only come from the legislature.

      If Gratl is successful, it would not be the first time that an overly-narrow human rights code has been broadened by the courts. In Alberta, a gay teacher succeeded in forcing the Albertan government to protect sexual orientation under its code. The Supreme Court of Canada found that it was discriminatory to not protect a person’s sexual orientation, noting that the exclusion was deliberate.

      There are many reasons why social condition ought to be protected. The underlying purpose of the code, among others, is to ensure that people are treated as individuals as opposed to being typecast as a member of a group. For example, an employer should not presume that people with dyslexia are poor employees: they should consider such things as whether the employee can perform their duties with appropriate accommodations.

      Of course, any good thing can be overdone. It is difficult to foresee the impact such a change might have. However, that does not militate in favour of not making the change. “Family status” is protected by the code and that has not caused a flurry of litigation. This very broad language has been interpreted to include the status of being a single parent or a family member of someone who has been evicted from a home. In practical terms, this has improved the ability of single parents to keep jobs and prevented people from discriminating against a person based on who their family members are (e.g. how Kay Adams disregarded what Michael Corleone’s family did. An admittedly better example is voters disregarding Roger Clinton Jr.’s criminal record in electing his brother).

      The reality is that, one way or another, Vancouver’s homeless population needs access to meaningful remedies to protect their rights and interests. They are a vulnerable population with significant barriers that prevent them from gaining traction in many areas of life. Unfortunately, as municipal and provincial laws are subject to the Human Rights Code, there will probably be a great deal of reluctance to any legislative change. Governments have proven to be terribly stubborn, particularly when it involves the rights of people who tend not to vote.

      Michael McCubbin operates a busy litigation practice in downtown Vancouver, focusing on criminal, constitutional, and administrative law. Reasonable Doubt appears on Straight.com on Fridays. You can send your questions for the column to its writers at straight.reasonable.doubt@gmail.com.

      A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.

      Comments

      3 Comments

      Mike Archer

      Jan 16, 2015 at 12:20pm

      Hopefully the cases in BC Supreme Court, Small Claims Court and before the BC Human Rights Tribunal from Pivot Legal Society and Abbotsford Chapter of the BC/Yukon Drug War Survivors will set precedents which will keep municipalities from discriminating against people on the basis or financial status, personal circumstances (i.e. nor mortgage or rental agreement, health issues (addiction, mental illness) and/or any of the attendant behavioural issues which make it difficult for as many as 30% or more of the victims of our society to find shelter. The cruel and unusual punishment meted out by city officials, police and service providers in Abbotsford should be used as an example of how NOT to treat our fellow human beings. REF - http://www.abbotsfordtoday.ca/category/abbotsford-homeless-crisis/

      Well

      Jan 17, 2015 at 4:01pm

      "Homeless people are denied access to coffee shop washrooms"

      B.C. Reg. 161/2011
      Division 2 — Public Sanitary Facilities and Toilets

      "6 (1) An operator of a public place must not
      (a) demand or require payment for the use of a public toilet, or
      (b) have control of, or permit a person to install, a public toilet that operates or is accessible only on payment.
      (2) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine not exceeding $2 000."

      @Well

      Jan 24, 2015 at 11:58am

      How can people dislike the toilet regulation?
      Do you want to live in a place with pay toilets?