The best, albeit imperfect, legal protection available to homeless people seeking refuge is the Canadian Charter of Rights and Freedoms, as demonstrated in Victoria (City) v Adams (Adams). 10 In that case, a group of homeless people erected a tent city in a public park because of an insufficient quantity of shelter beds available. This violated a bylaw enacted by the city forbidding the construction of structural shelters in this area. The city applied for an injunction and the defendants argued that it would violate their section 7 right to life liberty, and security of the person.
The city attacked this claim on the grounds that the government did not take action to cause the state of homelessness. The court rejected this argument, recalling J. Waldron's assertion that it is incumbent upon society to make public spaces available to the homeless if an economic system producing homelessness is to be tolerated. 11 However, the court was particularly cautious to avoid the perception that a property right was being granted,12 since property rights are explicitly omitted from the Charter.
This treatment of section 7 suggests that it would not be a useful defence in an SLBC scenario which deals with private property. Therefore, while preventing the government from taking action against homeless people sleeping in outdoor public spaces, the decision does nothing to alleviate the unnecessary exclusion of homeless people from unoccupied buildings, which could provide much more adequate shelter during extreme weather conditions (such as frigid temperatures). Furthermore, even if the Adams case is to be perceived as a victory for the homeless, it does nothing to address the problem of inadequate housing in general.
It is telling that the British Columbia Court of Appeal gave an explicit assurance that they were not imposing a "positive benefit" on the municipal government. 13 Adams demonstrates that when Charter rights are triggered the court becomes able to grant a remedy, but reminds us that there is no Charter right encompassing a right to adequate housing. Even though SLBC demonstrates that inadequate housing can often lead families and individuals to desperation, they do not involve the government deprivation of liberty and accordingly do not invoke the Charter.
Since the common law doctrines of adverse possession and abandonment have impractical requirements, it may be that the only recourse is to draft new legislation, such as Bill C-304. Bill C-304 seeks to address both problems of homelessness and inadequate housing by proposing a national strategy to combat poverty. The bill requires that this national strategy "includes provision for temporary emergency housing and shelter in the event of disasters and crises"14. This may address the kind of situations that arose in SLBC where the families occupied abandoned buildings due to desperate circumstances.
However, it also bears a resemblance to section 21 of the National Assistance Act cited by the defendants in SLBC, which requires the local authority to provide "(b) temporary accommodation for persons who are in urgent need thereof, being need arising in circumstances which could not reasonably have been foreseen or in such other circumstances as the authority may in any particular case determine. "15 This clause prevented the defendants in SLBC from succeeding because it was decided that their circumstances could have been reasonably foreseen.
Bill C-304, on the other hand, omits foreseeability and extends the principle from Adams stating that homelessness is not a choice. 16 Likewise, it is often not a choice to live in a residence that is unaffordable, inadequate, or unsuitable. By requiring that existing housing meets health security and safety standards17, Bill C-304 may prevent those like the families in SLBC from needing to seek refuge in unoccupied homes. One potential shortcoming of the bill is the absence of a concrete mechanism to mitigate the legal impediment faced by those affected by poverty, even when the law is on their side.
Although the defendants in Adams were fortunate enough to be represented on a pro bono basis, this option is not available to many impoverished people who have no financial capability to hire legal counsel. While one clause of the bill requires "a process for the independent review, addressing and reporting of complaint about violations of the right to adequate housing"18, it is unclear whether the homeless would still be forced to seek legal assistance.
However, by using the word "independent", it does ensure that complainants will not have to report violations to a minister who is connected to the institution being complained about (as was the case in SLBC). As well, guided by a set of standards based on the objectives laid out in the bill, this review process could have greater latitude than the courts have traditionally had. It is clear that while legislation would be the most effective way to address these issues, there may be other short term solutions.
If Bill C-304 fails to correct the insufficient protection afforded to individuals by current statute and common law, Clarke demonstrates that the necessity defence may be interpreted more broadly in the future. In addition, Adams confirms that those suffering from homelessness may be protected by the Charter if their needs are not framed as property rights. If the court recognizes that the health and safety risks posed by a lack of shelter involve the security of the person, it is conceivable that one day they may accept that the health risks posed by inadequate housing are justiciable using the same approach.