Introduction

The BC Civil Liberties Association recognizes the right of the homeless to take semi-permanent shelter in public parkland, subject to reasonable limitations. This right is based in the more general right to reasonable access to adequate shelter and may additionally be an aspect of the right to free expression.

Factual Background

Beginning in the summer months of 2003, a number of apparently homeless individuals erected temporary or semi-permanent shelters, such as camping tents and tarpaulin structures, in urban public parks in Vancouver. The individuals are approximately 30 to 50 in number. The encampments apparently move from time to time from one park to another.

Most of the inhabitants of the squats are extremely impoverished and can be described as homeless on any definition of the term. The encampments tend to contain signs and posters that are critical of the welfare and social policies of the current Provincial government.

Homelessness and Public Space: The Right to Be Somewhere

The Association maintains that Canadians should have reasonable access to adequate shelter. Homelessness can have extremely deleterious effects on civil liberties and human rights, including adverse effects on health, personal security, and the ability to participate in the democratic life of the political community.[1]

If adequate shelter is not available, the Association recognizes the rights of the homeless to occupy public space on a semi-permanent basis, subject to reasonable limitations.

There is no doubt that the homeless need to occupy some space, somewhere, as a physical necessity. The Association realizes that it is demeaning and hostile for a society to herd its homeless population at whim from one public space to another. This type of government action is akin to the criminalization of vagracy, which the Association has long opposed.[2] Where there is no access to adequate shelter, the homeless must be given special consideration in their use of public lands.

If the homeless have a right to occupy public spaces, it is also reasonable to expect that the right be exercised in a reasonable manner. Public spaces usually have intended uses for the general public, including transportation, recreational, aesthetic, and administrative uses. Some public uses are of greater utility than others, and some of these uses are incompatible to some degree with occupation by the homeless.

It is reasonable to confine the right of homeless to occupy public spaces to a right which interferes to the smallest practical extent with the enjoyment of the public space by others. The Association recognizes that the right of the homeless to take shelter will not displace all uses and functions of public space. The intended use of the public space will in some cases override the right of the homeless to take shelter.

At one end of the spectrum, for example, the right to take shelter cannot justify the occupation of a downtown street corridor and halt all traffic flow. At the other end of the spectrum, the bare sentiments of nearby property owners that the occupation of nearby public lands is unseemly or visually unappealing should not override the right of the homeless to occupy those lands.

To achieve the appropriate balance, the right of the homeless to occupy the public lands must be weighed against the benefits lost to the general public. In striking the correct balance, decision-makers should not lose sight of the plight of the homeless who are deprived of adequate shelter and are often deprived of ordinary civil liberties and human rights. The homeless, as everybody else, can be trusted to comport themselves and advance their interests with due consideration for the interests of others.

To summarize, the Association recognizes that all citizens have the right to adequate shelter. Where adequate shelter is unavailable, the right to take semi-permanent shelter on public lands is engaged. The right to take shelter on public lands should be exercised with due consideration to the alternative public uses of the space.

Freedom Of Expression

The Association further recognizes that homeless encampments can be a form of protected expression.

Some encampments have an expressive quality. In obvious cases, that expressive quality can be contributed by signage, leafleting, vocal expression. In other cases, the mere fact of a congregation of the homeless can be expressive; the massing of individuals who might otherwise remain hidden as a social phenomenon may be understood as having significant symbol or expressive value. The location in which the homeless gather may also resonate with meaning. One such example of meaningful location was the 2002-2003 homeless congregation outside the vacant Woodwards Department Store. The mere existence of a congregation at that location was generally interpreted as a protest calling called attention to the termination of affordable housing projects in British Columbia.

However, not all expressive activity deserves protection; it is not sufficient that an encampment have expressive qualities. The Association has long acknowledged that freedom of expression is not an absolute value to trump all others. Whether the BCCLA will support the encampment on the basis of freedom of expression will depend on all the factual circumstances.

For example, the Association supported the squat located at on the sidewalk outside the Woodwards building on the basis that the location of the squat had an effective symbolic resonance, and did not interfere with pedestrian traffic. If the squat had unreasonably interfered with pedestrian traffic or other public uses of the sidewalk, the Association may have not have lent its support. Like any other expression, the expressive content of encampments may be subject to reasonable limits.

In sum, then, encampments may or may not have an expressive quality. If an encampment has an expressive quality, the BCCLA may support the encampment on that basis if it cannot meaningfully be carried out at another time or place, and if the expressive quality is not outweighed by a significant interference with the other functions of the public space.

Fair and Orderly Relocation of Encampments

Homeless encampments deserve some measure of property protection. Aside from the bare right to occupy the land, the homeless should be afforded basic protections for their possessions and for their security.

The Association recognizes that the exigencies of public land will occasionally require the displacement of a homeless encampment. For example, the recent encampment at Victory Square Park in Vancouver was displaced in order to facilitate long-planned renovations to that park. It is essential to the security of persons living in an encampment that they receive adequate notice of the fact of and the reasons for their displacement. This is to allow for the homeless to advocate for remaining at that location, and to provide adequate opportunity to relocate in a peaceful fashion that is minimally disruptive to their interests.

The Association suggests that, when displacement is necessary, the relevant authority should give at least seven days advance notice by placing fliers at affected homeless encampments and by faxing the flier to social service agencies that serve the homeless. The seven day notice period was among the terms of an agreement between the City of Pittsburgh and the Pittsburgh chapter of the American Civil Liberties Union. The ACLU had launched a class action on behalf of Pittsburgh’s unsheltered homeless people.

The Pittsburgh settlement also addressed protections for the personal property of the homeless. All items of some value collected during “sweeps” of encampments would be stored for at least a year by the City, and the City would take steps to facilitate the reclamation of those items. Closer to home, the BCCLA was able to forge a similar agreement with the City of Vancouver to protect personal property at the Woodwards’ Squat without resort to class action litigation.

Concluding Remarks on Squatter’s Rights

The Association supports limited squatters’ rights on public land for the homeless. The limits are set by the extent of reasonable alternative accommodation, the importance of the displaced public function of the land, and the reasonable public need to maintain or clean the area.

In some circumstances, the Association will also support squatters rights on the basis of freedom of expression. The Association recognizes time, place, and manner restrictions on this justification of squatters’ rights.

[1] See our position paper: Civil Liberties Aspects of Homelessness: General Reflections, 3 April, 2004.  http://www.bccla.org/positions/discrim/04homelessness.html

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