Homeless man challenges Vancouver’s ban on street sleeping

Steve Mertl
National Affairs Contributor
Daily Brew

A formerly homeless man's legal challenge to Vancouver bylaws barring the homeless from sleeping on the street raises an interesting question or two.

Society hasn't eradicated homelessness after three decades of trying and temporary fixes such as shelters are often full and, even when they're not, often populated with drug users and violent people.

So to some, sleeping on the street offers the only safe alternative, but many communities outlaw the practice. Is it because they're concerned about the well-being of the homeless or do they want to keep the problem out of sight?

[ Related: Vancouver's ban on homeless street sleeping challenged ]

Clarence Taylor, who spent two years on the street from 2009 to 2011, filed a challenge against Vancouver's bylaws in B.C. Supreme Court on Thursday, the Vancouver Sun reported.

"Over the course of 2009, I moved to approximately 40 or 50 different places to try to sleep outside," Taylor says in his affidavit, according to the Sun.

"I tried to go to the Central City Shelter on Main and Terminal, but I didn't feel safe there because the shelter was filled with drug users."

Taylor, who now lives in a subsidized housing complex, said people at the shelters were routinely violent. He received eight $25 bylaw-violation tickets in 2009 and was moved along about 100 times by city workers or police.

The suit is being filed on Taylor's behalf by Vancouver's Pivot Legal Society, which advocates on behalf of the poor.

The society said in its news release that it is challenging the constitutionality of three Vancouver bylaws that prohibit sleeping on streets, in parks or on other city property, and also ban people from putting up a shelter to protect against the elements. The bylaws violate Section 7 of the Charter, which guarantee Canadians life, liberty and security of the person, Pivot contends.

"We're challenging the constitutionality of these bylaws because they increase the harm to homeless people sleeping outside," Pivot lawyer Scott Bernstein told the Sun.

"They're going to sleep in an area that's hidden and away and dark, so it makes them targets, it brings them out of the public space and puts their life in danger ... And the fact that they can't shelter themselves obviously can lead to sickness and health and exposure."

The challenge by Taylor and Pivot has a good chance of succeeding. Three years ago, the B.C. Court of Appeal upheld a B.C. Supreme Court ruling that struck down Victoria bylaw that banned overnight camping by the homeless in city parks.

The court agreed that was unconstitutional for the city to restrict camping and the erection of temporary shelters if no shelter beds were available. However, it set limits on camping rights to avoid people setting up permanent encampments in parks.

Despite that decision, Vancouver kept its restrictions in place. It should be noted Taylor's challenge refers to the safety of the shelters, not necessarily the availability of beds.

The University of Alberta law school's Centre for Constitutional Studies points out other cities, notably Calgary and Edmonton, have laws restricting where the homeless can lay their heads. But it notes they'll likely stay in place unless a challenge makes its way to the Supreme Court of Canada.

[ Related: Video of sleeping man being urinated on outside Toronto Eaton Centre draws police investigation ]

Vancouver City Councillor Kerry Jang, defended the city's bylaws, saying they are intended to protect the homeless, not chase them off the streets.

The bylaws are meant to keep the streets clear of obstructions and people from freezing to death, as well as other hazards to their safety, Jang told the Sun. Scrapping the bylaw would absolve the city of its responsibility to the homeless, he said.

"And for me that's just wrong," said Jang.

But Patrick Smith, professor of urban studies and political science at Simon Fraser University, said the bylaws are out of touch with the realities of homelessness.

"Some people would see efforts to outlaw homeless people sleeping out or sleeping rough as basically a bylaw trying to outlaw poverty, which is really kind of a legal absurdity," he told the Sun.

"The idea that you've got people who can't afford a place to live and you're now going to fine them and that's going to solve the problem — it's kind of a silly circular argument."