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Civil Liberties Aspects of Homelessness: General Reflections

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Introduction

The mandate of the British Columbia Civil Liberties Association (the “Association”) is to preserve, defend, maintain and extend civil liberties and human rights in British Columbia and across Canada. That obviously includes the civil liberties and human rights of the homeless.

The Association has traditionally maintained a firm position that extreme poverty can interfere with civil liberties. That tradition is manifest in our objections to linking income assistance with invasions of privacy, efforts to criticizing attempts to tie income assistance to invasions of privacy, in our encouraging the formation of a legal aid plan, in challenging the criminalization of poverty under the Criminal Code, and in supporting the general proposition that poverty can interfere with a person ability to participate in the democratic life of a community.

The Association recognizes the potentially catastrophic effects of homelessness on civil liberties, including the right to vote, the right to secure government benefits or essential services, the right to security of the person, and as noted above, the right to participate in the democratic life of the community. These adverse effects are squarely within the mandate of the Association, and we are prepared to take steps to eliminate or attenuate the adverse effects of homelessness.

The Association acknowledges that the causes of homelessness are numerous and complex. The complexity of these issues may sometimes challenge the Association’s ability to formulate a full opinion on some aspects of the causes of homelessness. Nonetheless, the Association is prepared to stay alive to those issues. When it has the appropriate expertise to deal with an issue and the issue involves civil liberties issues, the Association is prepared to deal with or to take positions on causes of homelessness.

Overall, the Association is very prepared to devote its energy to eliminate or reduce incursions into the civil liberties of the homeless, although we may approach issues requiring special expertise with caution.

Poverty and Civil Liberties: A Tradition of Advocacy

Throughout its existence, the Association has maintained that extreme poverty can interfere with civil liberties. In its 1964 Report of the Committee on Civil Liberties and Social Assistance, the Association states unequivocally:

… we do not propose to say if the possession of a television set or a car is an ingredient nowadays of a reasonable normal existence. But if the levels of assistance provided are such as to consume all the recipient’s ingenuity and energy making ends meet; if they effectively disbar him or her from participating in the processes of social and political life to which the majority of fellow citizens are expected to have access; if they concentrate in the mind upon the brute necessities of survival in the same fashion that Dr. Johnson observed of the prospect of being hanged; if they condemn the person to a manner of living that is calculated to rob anyone of ordinary feelings of self respect; then it seems certain that one of the most fundamental parts of a reasonable normal existence had been destroyed: we mean the capacity to assume and discharge the responsibilities of citizenship without extravagant destruction of mind or precariousness of circumstance. The discrepancies between intention and performance in the provision of social assistance in this province are objectionable not only because they are hypocritical but because they subvert the very conditions of moral freedom.1

In the same paper, the Association upbraided attempts to tie the provision of social assistance to the denial of civil liberties, including needless invasions of privacy and imposition of sexual morality on the recipients of assistance.

The 1964 Paper closed with the recommendation that the BCCLA maintain a watchful concern with the risks to civil liberties arising from the operations of the social welfare services, and that it take every suitable occasion to bring to public notice both the existence of those risks and the principal reasons for their being judged as such.2

The traditional position of the Association is that impecuniosity should not be a barrier to equal treatment under the law. In 1963, the Association’s Report on Criminal Legal Aid affirmed the right of an accused person in serious cases to state funded counsel. It was recognized that the administration of justice in an adversarial system was predicated on full and thorough representations on behalf of the accused.3 The concern, as reaffirmed in 1972, was to ensure means whereby the rich and the poor would be truly equal before the law.4

A similar principle was endorsed in 1971, when the Association agitated for the repeal of vagrancy offences under then section 164 of the Criminal Code. The Association recognized that the section, which contained offences such as “wandering without any apparent means of support” and “begging door to door or in a public place”, was directed against the predictable consequences of poverty. The penalties were effectively criticized as a veiled attack on the poor.5

The Association has specific experience with issues of social housing. In 1970, the Association took the position that landlord and tenant legislation should be amended to redress imbalances in power between landlords and tenants. The Association was of the view that landlords enjoyed excessive power in part because of the failure to build a sufficient number of housing units to meet the needs of people, particularly those in low income brackets. Of particular concern was the prospect that landlords could use their influence to prevent tenants from engaging in the political process.6

The Association has plainly been prepared to take positions on civil liberties issues, including housing issues, related to impecuniosity. While we have never directly advocated to reduce impoverishment or for economic redistribution, the Association has long been vigilant in recognizing that poverty carries the potential to erode civil liberties and deteriorate the quality of citizenship.

The Association’s approach to homelessness should be consistent with its approach to poverty. While avoiding narrowly focused technical debates about empirical minutiae, we should be vigilant to ensure that homelessness does not become the cause or catalyst for the denial of civil liberties. The niche of the Association is to identify and challenge the sometimes unique problems faced by homeless people; problems that may not be shared by more affluent or socially stable members of our society.

The Definition of Homelessness

Determining who to be included in a definition of the homeless is a divisive task. It is generally agreed that homelessness is a social problem in need of a remedy. Consequently, disagreement about the appropriate remedy often manifests as disagreement about terminology. Who we define as homeless tends to determine who will be the recipient of funding, resources, and services that are provided to deal with the problem. The definition will also tend to influence the demographic methods available to count or survey the homeless, and will influence the final tally. These numbers in turn tend to affect the allocations of scarce resources. So disagreement about funding, resources, and services leads to disagreements about definition.7

The Association faces a similar problem in selecting a definition of homeless. If the Association concludes that homeless persons are entitled to certain rights, protection or support, this is bound to give rise to disputes about the criteria for classification as a homeless person. We must concede that any attempt to select a definition of homelessness is a value-laden exercise that should be approached with caution.

Rather than selecting a final empirical definition of homelessness, we can proceed with a provisional and abstract definition of a homeless person as a person who is without reasonable access to adequate accommodation. Such a definition would include circumstances of individuals who are considered by reasonably compassionate people to be homeless, including:

Persons who reside in places that are not intended as, or are unfit for human habitation, including cars, abandoned buildings, bus or train stations, under bridges, in garbage or recycling dumpsters, parks, or other places lacking basic amenities.
Persons sharing housing at the whim of other persons on an interim or emergency basis.

Persons whose primary nighttime place of abode is a supervised publicly or privately operated shelter designed to provide temporary living accommodations, including shelters for victims of domestic violence, welfare hotels, congregate shelters, and transitional housing.

Quibbling over details of definitions is neither necessary nor desirable. Defining the homeless as persons without reasonable access to adequate accommodation facilitates discourse on the issues without constricting normative aspects of the discussion. We can proceed without further refinements on the terms ‘access’, ‘adequate’, or ‘accommodation’.

Engaging With The Effects of Homelessness

The world of the homeless is rife with catastrophes for civil liberties and human rights. Homelessness can undermine a citizen’s capacity to participate meaningfully in the democratic life of the community, may affect a person’s ability to secure ordinary everyday advantages available to other citizens, and can lead to adverse health and safety issues. To the extent that its effects are to undermine civil liberties and human rights, the Association is prepared to engage to eliminate or mitigate the negative effects of homelessness.

Homelessness can undermine a citizen’s capacity to participate meaningfully in the democratic life of the community. The exercise of many democratic rights is legally or practically contingent on a permanent or semi-permanent address. For instance, a person who is unable to provide proof of a permanent or semi-permanent address is ineligible to vote in a municipal election under the Vancouver Charter. Even if a homeless person is technically eligible to vote, the practical difficulties in securing a vote may well be insurmountable. More pervasive is the common-sense inference that if a person’s attention is consistently diverted to finding a warm place to rest for the night, they are unable to contribute their thoughts and opinions to the democratic marketplace.

A person’s ability to secure government benefits from local, provincial, or federal authorities may also be undermined by homelessness. For example, although eligible for benefits, a homeless person may be hampered in collecting social security (welfare), employment insurance, disability benefits, or other federal and provincial services. Education and training is impracticable in the absence of reliable shelter. Essential services delivered by regulated industries, including essential commodities such as electricity, natural gas, fresh water, telephone services, and banking services, may be unattainable for the homeless.

Concomitant with a lack of essential services are the predation of the elements and other enemies of basic health and well-being. There are serious health consequences associated with inadequate shelter, particular in cities with inhospitable climates. Malnutrition, weakened immune systems, and chronic diseases are epidemic among the long-term homeless. Absence of secure shelter leaves people open and vulnerable to predation by others, whether by robbery, assault (sexual or physical), or abuse of various types. As noted by the United Nations Human Rights Committee, “homelessness has led to serious health problems and even to death”.

The potential for the homeless to be exiled from the democratic life of the community is abhorrent to the Association. Such a prospect is a clear violation of civil liberties. To the extent that homelessness leads to incapacity to participate meaningfully in political life, the Association is prepared to continue its tradition of advocacy for both the eradication of homelessness itself, and for the elimination of barriers faced by homeless people to political participation.

Further, lack of access to essential services and government benefits is a marker of differential treatment and discrimination against homeless individuals. The Association is committed to equality of access to government benefits and basic services. These issues can readily be construed as both civil liberties issues, and human rights. The differential ability of the homeless to access benefits and services is yet another reason for the Association to oppose the perpetuation or worsening of conditions leading to homelessness. The Association will stand sentinel for equality of access to benefits and services.

Again, the threat posed by homelessness to the health and well-being of our citizens is an issue of basic human rights. The homeless, particularly those without adequate shelter for prolonged periods, fall below the minimum threshold for individuals in a wealthy country such as Canada. Increased vulnerability to predation is an issue going to the heart of the right to security of the person, protected by section 7 of the Canadian Charter of Rights and Freedoms.8 Whether cast as civil liberties issues or issues engaging human rights, the Association is prepared to fight.

Engaging With The Causes Of Homelessness

The causes of homelessness are complex and multiple; more than simply a lack of purchasing power, homelessness cannot be reduced to poverty. Homelessness is tied to various social ills, including substance abuse 9, domestic violence (including violence against elders, spouses, and children), shortages of affordable urban housing 10, high unemployment rates including frictional and seasonal unemployment, racial discrimination and discrimination against the poor 11, and untreated or inadequately treated mental illness 12.

The causes of homelessness plainly give rise to special issues of social policy at the intersection of the fields of economics, medicine, urban planning, child and family protection, welfare reform, and so on. The formulation of opinion on these issues demand insight into the specialized fields in which they emerge. More vexing is the reality that these issues often intersect in troublesome ways to deny the neophyte a simple uncomplicated remedy.

On one hand, the Association must recognize that we may or may not be equipped as an organization to address specific issues as they arise. These complex issues of causation are to be approached with caution for fear of expanding beyond our range of opinion and contracting our sphere of credibility.

On the other hand, the causes of homelessness are often influenced by government action and inaction. For example, the provincial government has significant influence in the realm of funding for the mentally ill and individuals sucked into the depredations of drug abuse. The Association recognizes that drug abuse and mental illness give rise to homelessness and its effects, and will encourage the provincial and federal governments to strive to support those individuals requiring the support of government entities to acquire shelter. With respect to the causes of homelessness, the Association will endeavour to stay alive to the issues and will intervene with caution when civil liberties are engaged. The Association will involve itself with the causes of homelessness to the extent that its expertise can be properly and fruitfully deployed.

Legal/Normative Sources

There are an abundance of legal and normative sources to support the position of the Association. These include Canadian obligations under international human rights agreements, the Charter of Rights and Freedoms, and existing mandates and studies.

International Obligations

The right to an adequate standard of living, including food, clothing, and housing, are recognized as fundamental human rights in the Universal Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural Rights, and on virtually all human rights instruments that have been adopted internationally since 1949. Article 22 of the Universal Declaration states:

Everyone, as a member of society, has the right to social security and is entitled to realization, through natural effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social, and cultural rights indispensable for his dignity and the free development of his personality.

Article 25(1) of the Universal Declaration is follows:

Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

A country as wealthy as Canada has no excuses for failing to live up to its international commitments.

The International Covenant contains the same basic guarantee in Article 11, which reads as follows:

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

There are no international sanctions for breaching the Covenant.

Despite the absence of penalty for non-compliance, the UN Committee on Economic, Social and Cultural Rights has to date undertaken three reviews of Canada’s compliance with its obligations under the Covenant. In its most recent 1998 Report, the Committee observes that comportment of Canada is out of keeping with its commitments under the Covenant. After criticizing what appeared to be inexplicable changes to the Canada Assistance Act, it was noted, for example, that

The Committee is gravely concerned that such a wealthy country as Canada has allowed the problem of homelessness and inadequate housing to grow to such proportions that the mayors of Canada’s 10 largest cities have now declared homelessness a national disaster.

The Committee provided insight as to the causes of the homelessness problem:

The Committee received information to the effect that cuts of about 10 per cent in social assistance rates for single people have been introduced in Manitoba; 35 per cent in those for single people in Nova Scotia; and 21.6 per cent in those for both families and single people in Ontario. These cuts appear to have had a significantly adverse impact on vulnerable groups, causing increases in already high levels of homelessness and hunger… The Committee is concerned that provincial social assistance rates and other income assistance measures have clearly not been adequate to cover rental costs of the poor. In the past five years, the number of tenants paying more than 50 per cent of their income towards rent has increased by 43 per cent… unavailability of affordable and appropriate housing and widespread discrimination with respect to housing create obstacles to women escaping domestic violence… the Committee was told that a large number of [discharged psychiatric] patients end up on the street, while others suffer from inadequate housing…
These observations are striking, and are typical of the condemnation of Canada by the Committee in their 1998 Report. The Association urges Provincial and Federal governments to comply with their international commitments to ensure a minimal level of material well-being for its most vulnerable citizens.
The Canadian Charter of Rights and Freedoms

In the view of the Association, rights for the homeless are elevated to constitutional status by section 7 of the Canadian Charter of Rights and Freedoms. That section promises that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. The Association believes, in line with Arbour, J’s dissent in Gosselin, that section 7 of the Charter imposes a positive obligation on the government to implement measures to provide basic and essential minimum levels of food, clothing, and shelter to its citizens.

This interpretation of section 7 is consistent with Canada’s international obligations under the Universal Declaration and the Covenant. As noted by the Committee in its 1998 Report:

The Committee has received information about a number of cases in which claims were brought by people living in poverty (usually women with children) against government policies which denied the claimants and their children adequate food, clothing and housing. Provincial governments have urged upon their courts… an interpretation of the Charter which would deny any protection of Covenant rights and consequently leave the complainants without the basic necessities of life and without any legal remedy… The Committee is deeply concerned at the information that provincial courts in Canada have routinely opted for an interpretation of the Charter which excludes protection of the right to an adequate standard of living and other Covenant rights.13

The Association joins the Committee and other advocacy groups in Canada in urging Canadian courts to interpret the Charter to harmonize with our international obligations towards the most dispossessed of Canadian citizens.

At the government level, the country and its provinces have demonstrated their commitment to ensure access to basic housing by implementing benefit schemes such as employment insurance and social assistance. Once engaged, these governments are responsible to ensure that the programs are designed to include the homeless. Anything less is an infringement of the right to equality enshrined in section 15 of the Charter of Rights and Freedoms.

The Association further believes that homelessness is in part a function of racial, sexual, and income discrimination that infringes the right to equality under section 15 of the Charter. That section reads:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The forms taken by housing discrimination are myriad. For example, the Report of Rupert Community Residential Services of Toronto entitled Homelessness in Canada: 1998 Report to the United Nations notes that up to a quarter of the homeless people in Canadian cities are Aboriginal, and about 15 percent of Toronto’s hostel users are immigrants and refugees. 14 The UN Committee has noted discrimination against women and against the poor. Unhappily, there are few mechanisms in place to combat this discrimination.

The Association urges the Federal and Provincial governments to take steps to eliminate all forms of discrimination in the allocation of housing in both public and private realms.

Conclusion

The mandate of the BC Civil Liberties Association includes protection of the civil liberties and human rights of the homeless. The Association maintains its traditional position that extreme poverty can interfere with civil liberties., and will advocate to reduce and eliminate the adverse effects of homelessness on civil liberties. With respect to the causes of homelessness, the Association will endeavour to stay alive to the issues and will intervene with caution when civil liberties are engaged.

1 Report of the Committee on Civil Liberties and Social Assistance, (1964), page 3 http://www.bccla.org/positions/admin/64socialassistance.html

2 Report of the Committee on Civil Liberties and Social Assistance (1964), page 8

3 Report on Criminal Legal Aid (1963), p.3 http://www.bccla.org/positions/dueprocess/63legalaid.html

4 In Support of a Comprehensive Provincial Legal Aid Plan (1970 (revised 1972)) http://www.bccla.org/positions/dueprocess/70legalaid.html

5 Vagrancy (1971), p.1 http://www.bccla.org/positions/privateoff/71vagrancy.html

6 Landlord and Tenant Rights (1970), pp.2 to 5 http://www.bccla.org/positions/admin/70landlordtenant.html

7 Estimating Homelessness: Towards a Methodology for Counting the Homeless in Canada (1995), Canadian Mortgage and Housing Corporation. Perressini, McDonald, and Hulchanski http://www.chmc-schl.gc.ca/en/imquaf/ho/ho_005.cfm
see also Selected Annotated Bibliography: Literature Addressing the Structural and Systemic Factors Contributing to Homelessness in Canada (2001) Canadian Council on Social Development

8 On this point, see Gosselin v. Quebec (Attorney General), 2002 SCC 84. The majority found that the section 7 right to security of the person does not include the right to receive a particular level of social assistance from the state adequate to meet basic needs. However, the current state of the law may be quite temporary. As noted by the Court at paragraph 82 of Gosselin, “one day s.7 may be interpreted to include positive obligations”.

9 Studies show that about one-third of homeless people have alcohol and drug abuse problems. Homelessness in Canada (Ottawa Innercity Ministries)

10 Rising cost of housing and cancellation of affordable housing projects is often cited among the structural factors causing homelessness. See, for example, Homelessness in Canada: From Housing to Shelters to Blankets, Connie Hargrave. www.shareintel.org/archives/homelessness/hl-ch_Canada.htm

11 http://www.equalityrights.org/cera/docs/golden. CERA (Canadian Equality Rights Association) paper: Human Rights, Access and Equity: CERA’s Recommendations for the Homeless Action Task Force, November 1998. The paper makes a persuasive case that minimum income thresholds for renting accommodation are discriminatory and tend to promote homelessness.

12 particularly the evacuation of Canadian mental health institutions in the 1980s

13 Concluding Observations of the Committee on Economic, Social and Cultural Rights: Canada 10/12/98. E/C.12/1/Add.31. paras.14 and 15

14 Homelessness in Canada: 1998 Report to the United Nations. http://www.tdrc.net/2rept24.htm

British Columbia Civil Liberties Association
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