The Canadian flag flies near a tent encampment in Marilyn Bell Park, located along Toronto’s waterfront on Feb 20.Fred Lum/The Globe and Mail
Can we – legally, morally, ethically – punish people who are involuntarily homeless?
Or does the state, the collectivity, have an obligation to ensure shelter is available before chasing away, fining and jailing people for sleeping in parks, on sidewalks and in other public spaces?
As homelessness becomes more commonplace and more visible, especially in big cities, that is one of the big questions society must answer.
When governments act to tackle homelessness and related public disorder, with policies that range from laissez-faire to aggressively intolerant, they invariably end up being challenged in court.
The U.S. Supreme Court recently ruled on a high-profile homelessness case: City of Grants Pass v. Johnson. The small Oregon town prohibited camping on sidewalks, in parks, alleyways and other public spaces. People who did so faced fines ranging from US$75 to US$295, and failure to pay could result in jail.
Lower courts had ruled that the municipal ordinances could not be enforced unless “practically available” shelter spaces exceeded the size of the homeless population. Otherwise, fining and jailing people for taking shelter in public spaces would amount to cruel and unusual punishment, a violation of the 8th Amendment of the U.S. Constitution.
But in a majority decision penned by Justice Neil Gorsuch, the Supreme Court disagreed with that interpretation, saying that the “cruel and unusual” language in the Constitution referred to barbaric practices such as disemboweling and burning people alive. Banning camping in public spaces is not cruel in that way, Justice Gorsuch said, and it is not unreasonable for cities to regulate what goes on in public spaces.
If anything, the Supreme Court ruled, striking down the ordinances would make the homelessness problem worse by allowing anyone to pitch a tent anywhere.
But in a minority dissenting opinion, Justice Sonia Sotomayor said that putting the interests of cities over individuals was “unconscionable and unconstitutional.” She also warned that the ruling would open the door to criminalizing homelessness and cause a “destabilizing cascade of harm.”
Advocates for the unhoused agree with that opinion, saying that the ruling would mean there would be a continued shift away from investments in affordable housing, to a banish-and-jail approach.
That would obviously be costly given the huge numbers of people struggling to find a place to live. In the U.S., there are 653,000 unhoused people, with that number growing by more than 18,000 weekly in 2023.
The comparable figure is between 25,000 and 35,000 people who are homeless in Canada on any given night. According to the Homeless Hub, the figure of homeless people in any year in Canada ranges from 150,000 to 300,000.
People living in encampments constitute a tiny fraction of that number. But they are the most visible and the most challenging to address from both a political and social-policy perspective.
In Canada, the courts have taken a markedly different approach than in the U.S., repeatedly ruling that needs of individuals to have shelter trump cities’ desire for public order.
Back in 2015, B.C. Supreme Court Chief Justice Christopher Hinkson ruled that City of Abbotsford bylaws prohibiting homeless people from sleeping in public spaces violated their constitutional rights, namely Section 7 of the Charter of Rights and Freedoms and its guarantee to “the right to life, liberty and security of the person.”
That fundamental approach has been repeated time and time again in various rulings during the last decade.
That has restricted cities’ abilities to dismantle encampments, but has also led to approaches such as providing more services and bolstering supportive housing.
But as in the U.S., there is a wide swath of measures targeting the homeless in Canada, from anti-begging bylaws to forcing people living on the streets to dismantle their shelters every morning (rather than outright bans deemed unconstitutional). Enforcement tends to be sporadic, and varies between and within jurisdictions.
In Canada, legal and human rights cases have often focused on providing more services to homeless “campers,” such as bathrooms and electricity, rather than preventing “cruel and unusual” treatment, as in the United States.
Clearly, it is in the best interest of individuals and society more generally to not have people camping on streets and in parks.
Encampments are not a solution to homelessness. Neither are shelters. Ideally, the solution is affordable homes for all, but we are a far cry from that goal.
In the meantime, we need to both ensure that public spaces are orderly and accessible to all, and allow those living on the margins to shelter safely.
That balance won’t be achieved with black-and-white court rulings, but with creative, community-based solutions.