October 17, 2008

Homeless in the Parks

"On the basis of this evidentiary record and for the reasons that follow, I have found that a significant number of people in the City of Victoria have no choice but to sleep outside in the City's parks or streets."
The Honourable Madam Justice Ross, Victoria (City) v. Adams, 2008 BCSC 1363, para 5

Madam Justice Ross' decision began by citing a 1992 Florida class action case between the City of Miami and Pottinger and other homeless plaintiffs in which the United States District Court for the Southern District of Florida ruled against the city and described the plight of the homeless as: "…an inevitable conflict between the need of homeless individuals to perform essential, life-sustaining acts in public and the responsibility of the government to maintain orderly, aesthetically pleasing public parks and streets." The US court ruled that the city was prohibited: "…from arresting homeless individuals who are forced to live in public for performing innocent, harmless, inoffensive acts such as sleeping, eating, lying down or sitting in at least two public areas …" The decision was appealed and sent back to the District Court to clarify its order. In 1996 the case was resolved through mediation, resulting in law enforcement officers receiving better training, safe zones being established and $600,000 in compensation being paid in the form of $1,500 to each successful claimant in the class action.

In the 12 years that followed the Pottinger mediation, cities across the US enacted repressive measures to deal with the homeless rather than follow Miami's precedent. According to a January 2006 report by the National Coalition for the Homeless and the National Law Center on Homelessness & Poverty, many US cities have criminalized homelessness by making it illegal to camp, loiter or beg. Some even made it illegal for charities to give food to the homeless in city parks.

Advocates for the homeless must be encouraged that what happened in Miami may happen in Victoria with Madam Justice Ross' conclusion that the prohibition against erection of temporary shelter constitutes a deprivation of the rights to life, liberty and security of the persons protected under the Charter of Rights and Freedoms. She also concluded that the By-Laws with respect to shelter are not a reasonable limit on those rights and consequently ruled that the various sections of the By-Laws: "…are of no force and effect insofar and only insofar as they apply to prevent homeless people from erecting temporary shelter."

There can be several possible responses to the ruling from the City of Victoria and the Campbell government, which intervened on behalf of the City. The Campbell government needs to put the kind of energy and priority into dealing with homelessness that it has put into its 2010 games. Alternatively the City and the Campbell government could go the way of many US cities by simply crafting news laws that will criminalize homelessness while skirting Charter rights. It is also possible that they will postpone any decision by appealing Madam Justice Ross' decision, a delay that would safely put the case over until after the May 2009 provincial election. There is clearly only one right thing to do. Most people wouldn't want to sleep in a cold wet park with no facilities if they had an attractive alternative. If the province doesn't want tent cities in its parks, it has to provide sufficient alternatives.