Opinion: Laws affecting homeless need updating

A compassionate society should not allow laws to marginalize the rights of vulnerable people

Laws reflect the moral and ethical principles of our society. As those principles shift, so too should our laws. In Vancouver, we are faced with an antiquated set of bylaws that prohibit a homeless person from sleeping outside and sheltering themselves. We have to question whether denying homeless people the ability to protect themselves from the elements and criminalizing extreme poverty aligns with our values and our ethical duty to this vulnerable group. I believe the answer to that question is unequivocally “no.”

From 2008 through this year, Pivot Legal Society has attempted — without success — to persuade the City of Vancouver to amend its bylaws to agree with a decision of the B.C. Supreme Court. That court struck down as unconstitutional Victoria’s bylaw, which prevented homeless people from sheltering themselves in a city park — a decision that was later affirmed by our Court of Appeal.

On November 22nd, Canada’s National Housing Day, our organization brought a lawsuit against the city on behalf of the homeless. We are challenging the charter constitutionality of three Vancouver bylaws for the fact that together they prohibit a homeless person from legally sleeping outdoors and sheltering themselves in any area of public property, whether in a doorway, under a bridge, or in a park.

When the Vancouver police or the city’s engineering staff threaten homeless people under these bylaws or issue them tickets, we know that this increases the danger to the homeless by forcing them into dark corners and away from the public eye. When the government increases the potential of harm through its laws, this engages charter values that protect life, liberty and security of the person, and may be unconstitutional. In September of this year, several homeless men camping in remote areas of Stanley Park to avoid being noticed by police were the targets of brutal assaults. It is not difficult to imagine that they would have been safer had they been allowed to sleep in a more populated area.

Everyone would like to see homelessness solved in this country. The current mayor and council of Vancouver have committed to ending street homelessness and have taken many positive steps to increase opportunities for homeless people to get off the streets and into secure and safe housing. They denounced former mayor Sam Sullivan’s Project Civil City and its draconian laws aimed at criminalizing homeless and poor people on the streets. They put forward plans to address street homelessness and are working toward building more supportive and affordable housing for low-income residents.

But the reality on the ground is that we are not there yet. Despite efforts at tackling this complex social problem, the annual 2012 homeless count revealed that the number of homeless on the streets in Vancouver nearly doubled from the previous year. Even the Vancouver police department recognized the reality that there are vulnerable people sleeping outside when they teamed up with Arc’Teryx outdoor clothing to distribute ponchos to homeless people.

The city says that it has no intention of criminalizing the homeless through bylaw enforcement. If that is the case, it should be made explicit in the bylaws, as was done in Victoria, where homeless people were given special recognition and an explicit right to overnight in the parks. Some elected officials in our city have raised concerns that revising Vancouver’s bylaws would be an admission of defeat in the battle to end street homelessness. We take a different view. Taking steps to update old bylaws to accommodate the human rights of homeless people to protect themselves and exist without being hassled or ticketed does not mean working any less diligently to end homelessness. It is merely an acknowledgment that in good conscience a compassionate society cannot allow our laws to further marginalize vulnerable people.

Scott E. Bernstein is a lawyer with the Pivot Legal Society

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