Shelter from the Cold

Government documents reveal plans are underway for B.C. legislation requiring the homeless to take shelter during extreme weather conditions. Civil liberties group cries foul.

According to documents released under access to information legislation, the British Columbia government is preparing legislation that would require homeless people to use emergency shelters during extreme weather conditions.

The idea seems simple enough, and perhaps even sensible. But the BC Civil Liberties Association suggests a sinister motive behind the Assistance to Shelter Act, which has yet to be tabled in the BC Legislature: it could be a tool to get homeless people off the street — and out of sight — during the upcoming 2010 Winter Olympic Games in Vancouver next February.

“The obvious outcome of this legislation will be our homeless hiding to avoid detection where they are at significantly increased danger, but are less of an eyesore for the Olympics,” says BCCLA director  Tom Sandborn. “The intent of this legislation isn’t to protect, but to clean up.”

The government-released notes indicate that, under the proposed legislation, a declaration of an extreme weather alert would serve as the trigger for police officers to become empowered to take homeless people to shelters.   The police officer would need to be satisfied that the person would be at risk of harm by staying outside.   The officer would then engage the person by encouraging them to voluntarily find shelter while advising them that an administrative order could be requested and issued to authorize the officer to transport the individual to a shelter involuntarily.

Sounds like strong medicine for homeless people insistent on fending for themselves.  And, as some critics point out, it may even be unconstitutional.  In the “Major Issues” section of the briefing materials released by government, it’s pointed out that “requiring people to go to a shelter against their will may make the legislation vulnerable to a Charter challenge.  A legal opinion on this issue is pending.”

While it’s clear that involuntary transportation and commital to a shelter engages liberty and security of the person interests under section 7 of the Charter, it’s the section 1 analysis — where government is called on to justify Charter rights infringements — that may yield broader implications.  So far, the Courts have rejected the proposition that government has a positive obligation to provide welfare or income assistance to ensure Canadians enjoy a minimum standard of living.  But, for the Assistance to Shelter Act to pass constitutional muster, government will need to establish, among other things, that there are no less drastic means of achieving the objectives of this legislation (i.e., presumably, to ensure the safety of homeless persons.) 

While it’s certainly cheaper for governments to provide emergency shelter funding in “emergency” weather conditions than on a permanent basis, a comprehensive homelessness strategy that gives Canada’s homeless a meaningful alternative to living on the streets would, it must be said, avoid the distasteful (and constitutionally suspect) scenario in which their liberty interests are suspended, even if ostensibly for their own good.  That it is administratively expedient and cheaper to force the homeless into shelters only when deemed necessary for their short-term survival is an unsatisfactory justification for dealing with the underlying problem of homelessness on a more lasting basis.

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