The B.C. government’s forcible relocation law

2009-09-22

in Canada, Law, Politics

Frog on a log in Mud Lake

In the run-up to the Vancouver Olympics, a law has been proposed in British Columbia that would allow police officers to forcibly transport homeless people to shelters during ‘harsh’ weather. Once they are at the shelters, they will be permitted to leave at their discretion. While it is never desirable for people to be harmed for lack of shelter, this law strikes me as morally and legally problematic. It is certainly seems contrary to section nine of the Canadian Charter of Rights and Freedoms, which provides protection against arbitrary detention and imprisonment. The question then is whether it is ‘saved’ by section one, which allows for the other rights to be subjected “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Under the Oakes test, which has become Canada’s standard but unofficial way of interpreting section one of the Charter, there are a number of requirements for allowing a law that violates a section of the Charter from being ‘saved’ by the ‘reasonable limits’ clause in section one. There must be a “pressing and substantial objective” and the means must be “proportional.” More specifically, the means must be “rationally connected to the objective,” involve a “minimal impairment of rights,” and that the law be proportional to the objective. People dying of exposure could certainly be categorized as a pressing and substantial objective, but I am less sure about whether there is a minimal impairment of rights involved. Certainly, the onus must be on those advocating the law to provide a strong argument for why it is constitutional. Such an argument would have to establish clearly that existing powers on the part of emergency services are inadequate to prevent homeless people suffering and dying during extreme weather, that forcible relocation would help, and that the violation of rights is proportional to the benefit.

The law may also be discriminatory insofar as it is meant to apply only to the homeless. Under the law, it seems like police would treat people differently when they came across them in extreme weather, based on whether they have a ‘home’ somewhere. The law would certainly never pass if it also included provisions for police to forcibly take people with homes back to them, if they happened to be out during an extreme weather event.

It is certainly important that shelters be available for the homeless, and that they be able to access them (especially during times of harsh weather). That being said, it is not clear why police should have the power to forcibly transport people. For one thing, the law risks being abused to clean up Vancouver’s image during the Olympics. Vancouver’s problems with drugs and homelessness are certainly something the Olympic organizers would want to keep out of the media. If they did so, however, it would be a shame; it would show that the city is prepared to simply suppress the visibility of enduring problems, rather than making a serious effort to respond to them.

Arguably, most of the problem of homelessness is the product of a weak social safety net, especially in areas like mental health and the treatment of drug addiction. For people who have others who care about them, it is possible to get reasonable assistance with such problems. For people with serious mental issues and nobody to play an assisting role, things must be much more difficult. Authorizing police to round up people who have committed no crime when it is cold and rainy seems more like an awkward cover-up mechanism than like a policy motivated by genuine concern for human welfare.

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{ 19 comments… read them below or add one }

. September 22, 2009 at 12:28 pm

An internal ministry memo proposes the mechanisms that would be necessary to make the new law work fairly and efficiently. Police officers or others (which the memo did not specify) would be given the authority to force people to shelters – with a limit specified on the level of force allowable – once a region had declared that Extreme Weather Response plans were in effect. Extreme weather was described as low temperatures or excessive rain. That declaration is already set out in B.C. as the trigger for the opening of emergency shelters in many municipalities.

Outreach workers would give homeless people a written warning that the extreme-weather declaration is in effect and notify police. Police would then try to convince these people to go into shelters and, if they refused, police would contact “an official (to be determined) by telephone who would then issue an administrative order which the officer would then enforce,” the memo says.

“As a last resort and in order for the police officer to discharge their legal responsibility, the individual may be taken to police cells, either voluntarily or involuntarily, where they will be held until the extreme weather declaration is no longer in effect.”

Emily September 22, 2009 at 1:43 pm

I love that photo so much.

This brings up a lot of interesting points. If they are concerned for the welfare of the homeless, why didn’t they propose this law years ago?

Milan September 22, 2009 at 1:59 pm

Regarding the photo, I am pretty happy with it too. It’s available light through my 70-200mm lens, along with the on-camera flash for fill on the frog.

Milan September 22, 2009 at 2:03 pm

The Globe and Mail story linked above suggests this as what prompted the bill:

[Housing Minister Rich Coleman] said the catalyst for the bill was the death of a homeless woman on Vancouver’s streets in December. The 47-year-old woman, known to the police only as Tracey, burned to death while trying to keep warm with a candle.

The police had offered to take the woman to shelter three times during the night after temperatures fell below zero. On the same evening, officers from the Vancouver Police Department offered shelter to 101 people; only 12 accepted and six took blankets.

I don’t think anyone can plausibly think this has nothing to do with the Olympics. Still, it could be viewed charitably as a case where the government anticipates a possible embarrassment and is trying to proactively avoid it. The question is whether this response is appropriate (or even legal) and whether any superior alternatives exist.

Milan September 22, 2009 at 2:06 pm

To me, it seems plausible that one major reason why homeless people might refuse to follow a voluntary order from the police to go to a shelter is because they do not trust or are fearful of the police (a perspective that may be quite reasonable, given the abuses committed by police officers and the high probability that those committed against people with a marginalized position in society will go unpunished.)

Giving the police the right to forcefully detain and relocate people hardly seems like a good way to build trust.

That being said, there is a defence of necessity in the common law. While it is illegal for anyone to detain and relocate someone against their will, you can argue in court that you did it to prevent something even worse from happening. Keeping someone from dying of exposure might count, in the eyes of a judge or jury.

Sarah September 22, 2009 at 2:30 pm

I can certainly see why the homeless would be deeply distrustful of any offers of help from the police. If the BC government were serious about helping the homeless instead of threatening them into moving somewhere where their visibility and/or deaths won’t be an embarrassment then they would send people whose responsibility is assistance and not authoritarian threat – health outreach workers maybe (because what is this concern with severe weather if not a health issue?).

Milan September 22, 2009 at 2:49 pm

Sarah,

Do you think health workers should have the power to compel people to go to shelters during extreme weather events, or just that they should be out there encouraging people to do so?

. September 22, 2009 at 2:53 pm

BCCLA uncovers plan to turn homeless shelters into jails

The B.C. Civil Liberties Association has uncovered four documents that suggest the provincial government is in the final stages of preparing legislation to compel the homeless to remain in homeless shelters during the 2010 Olympics.

The documents suggest that police officers would be able to use force and jail the homeless that refuse to attend and remain in homeless shelters under the proposed Assistance to Shelter Act. The legislation is to be tabled in this legislative session.

“This legislation turns our homeless shelters into jails, with shelter employees as the guards,” said Tom Sandborn. “Forcing someone to move out of a tent into a pew at First United or some other half measure shelter only makes sense in the context of clearing the streets for the Olympics.”

. September 22, 2009 at 5:06 pm

“Wally Oppal, the former B.C. attorney-general and Appeal Court of B.C. judge [said:]

“Sometimes preserving a constitutional right is less important that preserving someone’s life.””

http://www.theglobeandmail.com/news/national/british-columbia/its-our-duty-to-protect-the-homeless/article1296414/

Tristan September 22, 2009 at 5:09 pm

I disagree with this bill, but not the principle it upholds. I think it would be appropriate for police to, in particular circumstances, do exactly this. However, I don’t think its appropriate to reify that kind of exceptional case into a law. Laws should concern the general – and the general required here is more funding for shelters, better shelters, the ability to accomodate a greater range of homeless lifestyles in the shelters, etc… This law assumes that any kind of accomodation that a homeless person would prefer to spending a night in the bitter cold has not been made. In other words, it is a license to provide accomodation at a level that people would freely go to much discomfort to avoid.

Sarah September 22, 2009 at 7:51 pm

I remain unconvinced that anyone should have the power to compel a homeless person who is mentally competent to take shelter in a particular location in what are defined by some external authority as extreme weather conditions, but if a justification could be made for anyone to have that ability then it ought to be on health grounds. If the rationale is that homeless people need to be transported ‘for their own good’ then I would think health workers are the only people who are qualified to determine a) whether given their current shelter, clothing, health etc. the weather poses a risk to a specific homeless person, and b) whether that person is deemed mentally competent to make decisions about their own health & welfare at the time. Unless evaluations of each homeless person are made on the grounds of a) and b) by someone who is well-qualified to make them then I cannot see how this measure can be justified on the grounds of a benefit to the homeless, and given the authoritarian nature of the law I don’t personally think it is justifiable on any other grounds.

Padraic September 22, 2009 at 10:21 pm

The Oakes test is quite official — it comes from Supreme Court jurisprudence. I think the distinction you mean is between the text of the Charter and the case law we use to interpret it.

Milan September 23, 2009 at 8:37 am

I have heard some law professors complain that Oakes is treated like part of the Constitution, when it is actually just a precedent. The case has certainly had big ramifications for Charter challenges in Canada.

oleh September 25, 2009 at 2:01 am

This is the first that I have heard of the proposed law, so I may be well off base. However my thoughts include:
1. I expect that if this law is passed, it will be applied rarely and humanely. 2, I do not expect that it is motivated by avoiding political embarassment during the Olympics. The requirement of extreme weather is unlikely to occur precisely during the specific two week period of the Olympics.
3. It may provide both police (who most often interact with the homeless and the health workers another means to save someone’s life.

I will now try to follow what is written about it in our papers.

Anonymous October 2, 2009 at 12:23 pm

Do any other provinces have laws like this? If it isn’t necessary in Ontario or Quebec, with their bitter winters, it probably isn’t needed in B.C.

. October 8, 2009 at 10:20 am

Free speech lawsuit against Vancouver Olympic rules

By Cory Doctorow on human rights

Shawn sez, “The British Columbia Civil Liberties Association is aiding two activists in suing the City of Vancouver over a 2010 Olympic bylaw which may encroach on free speech and violate Canada’s Charter of Rights.”

With David Eby of The B.C. Civil Liberties Association representing them, Chris Shaw, a UBC professor of ophthalmology, neuroscientist (and Vancouver Observer blogger), and The Olympic Resistance Network’s Alissa Westergard-Thorp,announced this morning that they have filed a statement of claim against the City of Vancouver in the Supreme Court of BC. Their lawsuit challenges the constitutionality of an Olympic bylaw limiting free speech during the 2010 Winter Games that was passed by council in July, Eby told reporters this morning.

The BBCLA, with plaintiffs Shaw and Westergard-Thorp, claim their rights to free speech and freedom of movement will be denied once the Winter Games by-laws passed by city council take effect. They say the bylaws, commonly referred to as the omnibus bylaws, will infringe their Charter rights and are unconstitutional….

. October 8, 2009 at 1:30 pm

The Mental Health Courts work by trying to divert people with major mental illnesses away from the criminal justice system and towards the health care system. They try to get everybody who has been identified as having a major mental illness into a special courtroom which has a dedicated Crown attorney, judge, clerk and duty counsel. Participation is voluntary. If a defendant refuses, they are processed back through the regular court system.

Rather than approaching each case in the traditionally adversarial way (prosecution versus defense, or the people versus the accused), everybody in the courtroom works collaboratively from a case management perspective, and the individual’s legal problems are considered in the context of all their problems – health, financial, housing, social, etc. Case workers help clients link to appropriate community-based resources in an effort to ensure that their basic needs are met, because it’s unreasonable to expect people with major mental illnesses to be able to function well in society when their basic needs are not being met.

The goals of Mental Health Courts include reducing pressure on the regular court system, improving access to mental health treatment, improving access to other community services, making court more user-friendly, slowing the revolving door phenomenon, reducing recidivism, and ultimately benefiting society by reducing crime.”

Tristan October 22, 2009 at 11:31 pm

Here is an interesting talk on the Olympic Games and legal issues by someone from David Eby from the B.C. Civil Liberties association.

http://vancouver.mediacoop.ca/audio/1966

Of note – John Russell used to be the president of this association, and still sits on the board.

. October 22, 2017 at 10:41 pm

Although homelessness is hard to measure, available statistics suggest that Reno’s homeless population is on the rise even as America’s homeless population as a whole is declining. In 2011, 879 people lived on Reno’s streets, in shelters and in transitional housing. By January 2017 that number had increased to 1,106, meaning about 32 of every 10,000 residents is homeless (the national rate is 18 per 10,000 people). To burnish downtown Reno’s reputation, the city council is considering several new ordinances, one of which would ban people from lying or sleeping on private or public property without permission. Such policies are increasingly common. According to the National Law Centre on Homelessness & Poverty, 18% of the 187 American cities it surveyed in 2016 imposed citywide bans on sleeping in public, a significant increase since 2006.

An arrest record makes it harder for a homeless person to find employment or housing in the future. Many studies suggest there are cheaper ways to tackle the problem. The Central Florida Commission on Homelessness, a charity, found that the average costs associated with the incarceration and hospitalisation of a chronically homeless person are about triple what it would cost to provide a chronically homeless person with housing. Between 2007 and 2015, New Orleans reduced its homelessness rate by 85%, primarily by providing housing. Reno’s city government should take a look.

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