B.C. bylaws targeting homeless face court challenge

SHANNON KARI

http://www.theglobeandmail.com/servlet/story/RTGAM.20060829....

From Tuesday's Globe and Mail

VANCOUVER - Should municipalities have the right to make it illegal for people to sleep in public spaces if there isn't enough shelter space for the homeless in the community?

Cities across Canada and the United States have decided that it is, indeed, appropriate and they are enacting bylaws restricting the activities of the homeless.

A new ban on staying overnight in public squares takes effect in Montreal on Sept. 1, for example. Las Vegas recently made it illegal even to feed the indigent in public parks.

Los Angeles tried to prohibit people from sleeping in any public space, 24 hours a day, seven days a week. But a U.S. appeals court found the policy constituted "cruel and unusual punishment" and struck down the city ordinance last spring.

Now, for the first time in Canada, a similar court challenge is under way in British Columbia, arguing that bylaws enacted by the City of Victoria violate the Charter of Rights and Freedoms.

Victoria's bylaws prohibit the erection of any shelter in a public place and sleeping overnight in parks. The city currently has about 175 permanent shelter spaces -- but more than 700 homeless people, according to an official municipal count.

Two court injunctions were obtained last fall to dismantle tent cities that had been erected on grounds owned by the province and in a local park.

The injunction obtained by Victoria to take down the tent city in Cridge Park expired last week. The constitutional challenge is a response to the injunction, and a B.C. Supreme Court judge will be asked to decide whether to impose a permanent ban against sleeping in the park, or if the bylaws violate the Charter of Rights.

"The point of the challenge is not to say people should sleep wherever they want," said Victoria lawyer Catherine Boies Parker, whose firm has been working on a pro bono basis to try to strike down the bylaws, in place since 1991.

She agreed that the homeless problem has put increased strain on city resources, but said: "The point is, you cannot make it illegal to sleep outside when there is no other option. It is literally impossible to comply with the bylaw."

The challenge is expected to be heard early next year, but Ms. Boies Parker admitted that funding for the case is an ongoing problem and likely a reason why this is the first time a court in Canada has been asked to decide the issue.

Police in Victoria have recently been waking homeless people at about 5:30 in the morning, if they are found in the doorways of businesses, and urging them to move to drop-in centres. The action is in response to complaints by business owners.

Wendy Zink, the manager of community development for the city, stressed that police are not putting homeless people in jail.

Victoria hopes to add 40 shelter spaces next month and about 50 permanent social-housing spots by 2008, but Ms. Zink said municipalities do not have the financial resources to deal with rising homelessness.

Ms. Zink noted that the provincial shelter allowance for people on social assistance is $325 per month and has not increased since 1991, which is another obstacle for municipalities trying to provide housing for low-income residents.

"Municipalities are required to use bylaws to respond to large social issues," said Ms. Zink. "Homelessness is a national disaster."

Vancouver, which has more than 1,200 homeless people, has a bylaw similar to Victoria's, and homeless people are often encouraged to move out of that city's parks or other public spaces. After being asked to move along, they are provided with a card that lists the numbers of various social agencies.

Judy Graves, co-ordinator of Vancouver's tenant-assistance program, is on the front lines of working with the homeless. She is sympathetic to the Victoria court challenge, but says the right to sleep outside is not an answer for needy people with no place to live.

"Refugee camps in the city are not a solution," said Ms. Graves. "There is no middle ground. Unless housing for the poor is part of the infrastructure of every major city, this problem is entrenched."

The onus on homeless people to comply with laws that ban sleeping in public places, when they have nowhere else to sleep, effectively "criminalizes" homelessness, said Mark Rosenbaum, a lawyer who acted for the American Civil Liberties Union in challenging the Los Angeles ordinance, which focused on an area known as Skid Row.

Ultimately, the U.S. Court of Appeals agreed that the ordinance was unconstitutional. "Sitting, lying and sleeping are universal and unavoidable consequences of being human," the court said in April.

"It is undisputed that, for homeless individuals in Skid Row who have no access to private spaces, these acts can only be done in public."

Mr. Rosenbaum said that the L.A. law was a "street-sweeping ordinance," and that police began to enforce it only after the Skid Row district began to be redeveloped.

Los Angeles has indicated it intends to appeal the ruling, but is holding discussions with the ACLU to try to work out a compromise to avoid further court action.

Court challenges are expensive, and Mr. Rosenbaum said that they are not the ideal way to obtain rights for the homeless.

"It has to be part of a broad effort," he said, echoing the views of Ms. Graves.

He noted it has shown to be less expensive to provide social housing to combat homelessness than to enact laws and rely on police to deal with the problem. "Criminalization," he said, "is bad economic policy."