Challenging Discriminatory and Punitive Responses to Homelessness in Canada

AuthorMarie-Eve Sylvestre and Céline Bellot
ProfessionAssociate Professor, Civil Law Section, University of Ottawa/Associate Professor, École de service social, Université de Montréal
chapter 5
Marie-eVe sylVestre and céline Bellot
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 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
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

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