Thursday, November 20, 2008

Homelessness, Medicare, Parks and Unintended Consequences

The courts have struggled for a quarter century over whether the Charter of Rights and Freedoms has empowered them to compel the government to enact a social welfare system. This fight is now being played out over the rights of the homeless to protect themselves from the rain and the rights of the citizenry of Victoria to control the use of the public parks. The outcome of this case together with a number of other recent decisions will likely have a profound effect on Canada's social safety net but the nature of that effect may be quite different than anyone involved expects.

In a recent decision by Madam Justice Ross the British Columbia Supreme Court struck down a Victoria by-law which prohibited the erection of even temporary shelter in Victoria's parks. Justice Ross held that such a prohibition, in the face of Victoria's failure to provide an adequate alternative to homeless people, interfered with the security of the person of the homeless who are compelled to sleep outside on public property. Given all of the circumstances around the management of parks and the treatment of the homeless in Victoria she also held that the City could not justify this breach of the homeless persons' section 7 rights as a reasonable limit, demonstrably justifiable in a free and democratic society.

This decision has been appealed by the City of Victoria (a step that is entirely reasonable no matter how politically controversial) and how the courts will ultimately treat this matter is highly uncertain. This is an area of law that is hugely in flux and on a number of matters it has been very hard for anyone to say with any certainty how any particular case will go. However, given the Supreme Court of Canada's decision regarding Quebec's ban on private medical insurance for services covered by the Provincial medicare program (Chaoulli), anyone who says Justice Ross' decision is clearly wrong or unreasonable is not watching what is going on. In Chaoulli the Supreme Court essentially held that if the government is going to ban individuals from fending for themselves in terms of accessing medical care then it equally has to ensure that it has put in place an adequate alternative. Madam Justice Ross has essentially extended this logic holding that if the state is going to ban people forced to sleep on public property from sheltering themselves from the elements, then it has to show it has provided an adequate alternative.

The Victoria homeless challenge has been clearly taken by people motivated by the larger vision of the Charter of Rights and Freedoms being used as a tool to advance social welfare policy. That is, the goal is not to actually entrench camping in the parks but instead to shame the governments into actually moving to provide some real solutions for homelessness in British Columbia. However, the fact that this decision builds on Chaoulli highlights the danger of this course of action from a social policy perspective. In Chaoulli it is evident that the goal of the challenge was not to motivate the government to strengthen the public medical care system, instead it was designed to provide cover for the development of a parallel private system of medical care. While the response to Chaoulli has been slowly emerging there is a real sense that this goal will be achieved. There is only so much money that the public will put into medical care and therefore the Supreme Court of Canada's decision creates room for private medical care to fill the gap.

In the case of the Victoria bylaw what may turn out to be the actual outcome is not the development of a meaningful homelessness strategy but instead a regulated system of camping or tent cities. This outcome has been suggested by Victoria's immediate response post-decision: a small number of new shelter beds and a by-law permitting orderly camping provided that camp is broken by early morning. If the decision is upheld on appeal, my prediction is that what we will see is the development of designated sleeping areas on public land where permanent tent cities may be erected. This will be coupled with bans on sleeping in most parks at most times. Thus the shameful solution to homelessness will become the preferred solution to homelessness. It is a cheap solution and, provided that the tent city is not situated in a well used park or too close to residential areas, the citizenry will not rise up in arms. Moreover, the City will be able to point at Madam Justice Ross' decision as cover for what many will see as an ugly outcome.

It will take time to see if this comes to pass but given the complexity and costs associated with resolving the issues of homelessness (particularly in an economic downturn), I expect it will be a far too tempting option for our governments to resist. It is an outcome that will flow from a well-intentioned attempt to use what is at its core a libertarian document (the Charter of Rights and Freedoms) to implement social policy change. Sadly it will create incentives to continue to decrease the amount and quality of public space available and has given governments an easy out on the homelessness front.

What then should have been done? In my view this proceeding had to be taken -- we are in a homelessness crisis in Victoria and we should not stick our heads in the sand in this regard. However was it the best route? One of the fortunate side-effects of the emergence of Charter is the devaluation of formal political action in favour of formal legal action. That is, many smart, socially engaged people who before would have become actively involved in the formal political process and driven social policy change through that process -- which involves coalition building, consensus building and public engagement -- now head straight to court. The problem with this approach is that the court (by its very nature) can offer only a limited range of solutions and those solutions can often be received in a very hostile manner by the public if the proper political groundwork has not be laid before the decision is reached.

The Supreme Court of Canada has described the interplay between the courts and the political institutions in our society as being a dialogue. Some critiques view this as giving the courts an overblown role in our society by claiming an equal footing to Parliament and/or the legislatures. In my view it does the opposite. Instead of carving out a sacred judicial territory for human rights it gives a real role to our political institutions to decide when and how human rights will be respected -- or limited. But this means that in fighting for human rights in Canada -- including the basic ability not to have to sleep uncovered in the rain (yes, it rains in Victoria), citizens cannot just turn to the courts. The fight has to be equally fought in the democratic realm by means of public persuasion and also participation in electoral politics. This may involve trade-offs, patience and some disappointment but the alternative is the entrenchment of court approved tent cities.
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2 comments:

Karen said...

Yes I see your point about the dangers of pivoting political action on a court challenge. It part these challenges serve to change society by throwing the ball into the court of professional associations to uphold the new law and through doing so, bring about the societal change that was not there yet when the court challenge was launched. This has been a very successful political strategy for some. Think of the spanking ruling. The lobbyists there still fight to have the criminal code repealed, yet based on the charter ruling all the professions adjusted their policy and people responded. Think of abortion where before the ink was dry on the ruling the head of the CMA had created the new abortion law in the form of a CMA policy document on induced abortion. Then, of course, the clinic practice of abortion followed and now 15 years later the society as a whole has really changed it's attitudes and acceptance. So these charter challenges work to bring about change, and they work within the political system as well as the social policy sphere. Yet the legal community rejects this process and you see that in the mess that is now our Criminal Code. I think it is really up to the legal community to work with Parliament and government to reform the process such that a Charter Challenge case can be a legitimate way to change society. The legal community has accepted that the Charter can bind all other laws. In my view, this was folly. Yet having taken that course they should see it through responsibly.

Die said...

I agree that heading to court can have unexpected consequences.

This particular situation displays to me the failure of this country to have any kind of anti-poverty strategy. As a result, we have come to accept that people need to panhandle and sleep outdoors and food banks, which were developed twenty years ago as an emergency measure, have become institutions.

I would also argue that the Morgentaler decision, while it made abortion legal, did not even remotely address the provision of abortion services in Canada. Because abortion became legal through a court case rather than an act of Parliament and political commitment to the provision of abortion services is minimal, we have extremely poor access to abortion across Canada, with less than 20% of Canadian hospitals providing abortion and clinics available only in urban centres.