Challenging Discriminatory and Punitive Responses to Homelessness in Canada

• Author: Marie-Eve Sylvestre and Céline Bellot
• Profession: Associate Professor, Civil Law Section, University of Ottawa/Associate Professor, École de service social, Université de Montréal
• Pages: 155-186

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chapter 5

CHALLENGING DISCRIMINATORY

AND PUNITIVE RESPONSES TO

HOMELESSNESS IN CANADA*

Marie-eVe sylVestre† and céline Bellot‡

A. INTRODUCTION

State and local governments have long turned to legal norms such as crim-

inal law, anti-panhandling statutes, and la nd use planning and develop-

ment bylaws and have relied on policing strategies to control the poor and

homeless in Western countries.1 Since the 1990s, Canadian cities have

adopted a new series of local policies that emphasize the enforcement of

provincial statutes and bylaws against urban disorder.2 These strategies

* Part of thi s chapter is based on an exp ert adavit f‌iled in supp ort of the applicants

in Tanudjaja v Canada (Ont Sup Ct File no CV-10-403688) (2011), onl ine: CURA

http://socialrig htscura.ca. T he authors would like to th ank Bruce Porter and Ma rtha

Jackman for in sightful comments on e arlier versions of this c hapter.

† Marie-Eve Sylvestre , Associate Professor, Civ il Law Section, Universit y of Ottawa.

‡ Céline Bellot, As sociate Professor, École de serv ice social, Univers ité de Montréal.

1 Mic hel Foucault, Discipline and Puni sh: The Birth of the Prison , trans Alan Sh eridan

(New York: Vintage Book s, 1977); Katherine Becket t & Steve Herbert, Banished: T he

New Social Control in Urban A merica (New York: Oxford University P ress, 2010);

Mary An n Poutanen, “Images du d anger dans les arch ives judiciaires. Comprend re la

violence et le vagabond age dans un centre urb ain du début du XIXe siècle, Montré al

(1810–1842)” (2002) 55 Revue d’h istoire de l’Amérique fra nçaise 381.

2 Marie -Eve Sylvestre et al, “Le droit est au ssi une question de visi bilité : occupation

des espaces publics e t parcours judiciai res des personnes itinéra ntes à Montréal et

à Ottawa” (2011) 26:3 RCDS 531 [Sylvest re et al, “Occupation des espace s publics”];

Catherine C hesnay, Céline Bellot, & Mar ie-Eve Sylvestre, “Taming the Homeless O ne

Ticket at a Time: The Pen alization of Homelessness i n Ontario and Brit ish Columbia”

156 ► marie-eve sylvest re and céline bellot

have generated much debate and controversy. Scholars, community groups,

and lawyers have chal lenged the legitimacy and the discrim inatory aspects

of these policies, as they fall disproportionately on homeless people and

racial minorities.

In both the historic and modern eras, punitive responses to homeless-

ness were largely based on negative stereotyping, prejudices, a nd discrimin-

ation. Those who are homeless are wrongly portrayed as morally inferior,

lazy, and dishonest individua ls (the “mora l depravation” di scourse), bla med

for their own misfortunes (the “choice” discourse), and are treated as crim-

inals or potential serious of‌fenders needing to be repressed and conf‌ined,

rather than as equal citizens worthy of respect and consideration (the

“criminalit y” discourse).

These three sets of beliefs have little to do with homeless individuals’

actual circumstances or reality. However, their prevalence has had import-

ant legal implications for social rights litigation, preventing a necessar y

debate about the complexity and the multi-factorial dimension of home-

lessness — a phenomenon rooted in various social, economic, and pol itica l

causes. In this ch apter, we suggest that a broader discussion of the origins

of the moral depravation, choice, and criminality discourses, and the con-

sequences of these three discourses for homeless people and communities,

strongly supports the recognit ion of homelessness as an a nalogous ground

of discrimination under section 15 of the Canadian Charter of Rights and

Freedoms,3 as well as claims to social and economic rights, such as access

to housing, education, employment, health care, and social services under

both section 7 and section 15 of the C har ter. 4

(2013) 55:2 Canadia n Journal of Crimi nology and Crimin al Justice 161 [Chesnay, Bellot,

& Sylvestre, “Tamin g the Homeless”]; Damian Col lins & Nicholas Blomley, “Pr ivate

Needs and Publ ic Space: Politics, Poverty and A nti-panhandli ng By-Laws in Canadi an

Cities” in Law Commi ssion of Canada, ed , New Perspectives on the Public-P rivate Divide

(Vancouver: UBC Pre ss, 2003); Joe Hermer & Janet Mosher, Disorder ly People: Law

and the Politics of Exclusion in On tario (Halifa x: Fernwood, 2002) [Hermer & Mosher,

Disorderly People].

3 Par t I of the Constitution Act, 1982 , being Schedule B of the Canada Act 1982 (UK ), 1982,

c 11 [Charter].

4 Thi s chapter will focu s on section 15. See Mar got Young, “Context, Choice and Right s:

PHS Community Servic es Society v Canada (Attorn ey General)” (2011) 44:1 UBC L Rev 221.

For more specif‌ic arg uments on s 7 and the idea of choice, se e Marie-Eve Sylvestre,

“The Redi stributive Potentia l of Section 7 of the Charter: Incor porating Socio- economic

Context in Crim inal Law Cases a nd in the Adjudication of Rig hts” (2012) 42:3 Ottawa

L Rev 389.

Challenging Discriminatory and Punitive Responses to Homelessness in Canada ► 157

Since the Supreme Court of Canada’s decision in R v Kapp,5 a person

claiming that her rights have been violated pursua nt to section 15 of the

Charter has to demonstrate that (1) a law creates a distinction, in pur pose

or ef‌fect, based on an enumerated or analogous ground; and (2) the law is

discriminatory within the meaning of the equality guarantee, i.e., that it

creates a disadvantage by perpetuating prejudice or stereotyping in a way

that does not correspond to the group’s actual circumstances or reality.6

Moreover, the Court has held that an ana logous ground of discrimina-

tion is often the “basis for stereotypical decisions made not on the basis

of merit, but on the basis of a personal characteristic that is immutable

or changeable only at unacceptable cost to persona l identity.”7 The specif‌ic

question of whether homelessness is an analogous ground of discrimina-

tion under section 15, like the issue of poverty as an ana logous ground,8

has yet to be settled by the court s.9

5 2008 SCC 41.

6 Ibid at para 17.

7 Corbiere v Canada (Minister of Indian & Nor thern Af‌fairs), [1999] 2 SCR 203 at para 13

[Corbiere] (conf‌irmed in Baier v Alberta, 2007 SCC 31 at p ara 64).

8 See Masse v Ontario (Minist ry of Community and Social Ser vices) (1996), 134 DLR (4th)

20 (Ont Div Ct), leave to appeal to C A refused (1996), Admin LR (2d) 87n , leave to

appeal to SCC refu sed (1996), 39 CRR (2d) 375, in which , at para 71 of the Divis ional

Court decis ion, the court refused to re cognize welfare rec ipients as a “discret e and

insula r minority” where reduct ions in the level of welfare were cha llenged; Polewsky

v Home Hardware Stores Ltd (1999), 68 CRR (2d) 330 (Ont SCJ): Gilles e J rejected a

challenge unde r s 15 of the Charter because “[t]he poor in Ca nadian societ y are not a

group in which the me mbers are linked by sh ared personal or group ch aracteristic s”

(ibid at 346); Toussaint v Canada (Minister of Citizenship a nd Immigration), 2011 FCA 146

at para 59 and Boulter v Nova S cotia Power Inc, 2009 NSCA 17 at para s 42–44, where

the courts ref used to recognize p overty as an ana logous ground. But see Dunmore v

Ontario (AG), 2001 SCC 94: L’Heureux-Dubé J, conc urring, would have held t hat the

occupationa l status of agricu ltural workers const ituted an analogous g round; Falkiner

v Ontario (Ministr y of Community and Social Servi ces) (2002), 59 OR (3d) 481 (CA): the

court accepted t hat membership in the grou p of “sole-support mothers on welfare”

could be considered g rounds for a claim of disc rimination ba sed on the enumerated

ground of sex and pa rtly on an analogou s ground. Application for leave t o appeal to

the Supreme Court of C anada was gra nted on 20 March 2003, but Ont ario decided

in September 2004 not to pu rsue its appeal. See, ge nerally, Martha Jack man & Bruce

Porter, “Justicia bility of Social a nd Economic Rights in Ca nada” in Malcolm La ngford,

ed, Social Right s Jurisprudence: Emerging Trends in Internat ional and Comparative Law

(Cambridge: Ca mbridge University Pres s, 2009).

9 Federated Anti-Poverty Grou ps of BC v Vancouver (City), 2002 BCSC 105. The cour t

upheld a Vancouver bylaw prohibiti ng aggressive panh andling and solicit ation of a

captive audience. Ju stice Taylor was of the opinion that th e bylaw did not violate s 15