Should the homeless be banned from sleeping in parks?

I think all of us at one time or another have seen homeless people sleeping in city parks. I have seen them sleeping on very busy sidewalks in the middle of the day in Toronto, huddled inside their sleeping bags. It is a sad commentary of our time that so many people have to live this way.

The mayor of Victoria, B.C. wants all homeless people in his city banned from sleeping in the city’s parks, day or night. Let me say from the start that I too am not too keen about having to share a park bench some warm summer day when a homeless man is sleeping on it or under it. At the same time, I have some sympathy for these unfortunate people who can’t find a place to sleep at night. I have no sympathy for them however if they are still sleeping on a park bench after ten in the morning.They don’t have the right to presume that the park bench is their permanent home and therefore in their minds, not to be intruded on by citizens or tourists who want to visit the park for the day.

The mayor was quite upset when a number of the homeless people in Victoria congregated in one the parks and built a tent city in it. He had them removed and rightly so. Building a tent city in a public park in the middle of the city is not only illegal, it is also unhealthy. Where are these people going to urinate and defecate?

A number of the homeless are seeking shelter in a B.C. Supreme Court at the start of a civil case being closely watched by municipalities across the country.

It’s the first case of its kind heard in Canada dealing with the constitutionality of the city's bylaw prohibiting sleeping in parks. It is being challenged by a number of people who argue they have a right to sleep in public places such as city parks. The challenge to Victoria's bylaw began nearly three years ago, after dozens of homeless people erected a tent city and were then forced to dismantle it.

The homeless group argues that in the absence of shelter beds, it's a violation of their Charter rights for the city to ban them from sleeping in city parks and from putting up their own shelters, whether cardboard boxes, tents or tarps.

The mayor has argued that "Parks are for everyone and for everyone's enjoyment. We do not support any one group taking over the park for their own purposes. That includes people who want to camp overnight.”

I agree with him. The city didn’t build the parks for the purpose of erecting tents for the homeless but rather for the enjoyment of all its citizens including the homeless. The enjoyment I am speaking about is; picnicking, lying on the grass and sunning themselves; playing games etc.

How can the citizens along with their children truly enjoy themselves in a public park if they have to walk around, through or near a tent city of homeless people who have urinated and /or defecated on the grass?

It has been suggested that the real number of homeless in Victoria is around 300, and those people without homes includes those living in cars or couch-surfing at homes of friends and family. There are about 350 shelter spaces in Victoria which obviously is not enough to handle the many more homeless who may gravitate to Victoria during warm months of the summer.

Catherine Boies-Parker, the lawyer representing the homeless said to the court, “One principle of justice is that people shouldn't be punished for doing what they must do to survive when they have no choice. She told the court that, “There is a homeless population that has nowhere to go.” She added that, “this blanket prohibition on any sort of shelter that allows the meagre comfort of a cardboard box is not constitutional."

I don’t see how banning a homeless person from sleeping in a public park contravenes the Constitution of Canada.

The framers of Canada’s Charter of Rights in creating this important document, attempted to ensure that the whole area of human rights was protected in a way that they would protect everyone in Canada of their fundamental freedoms, democratic, equality and legal rights.

When governmental bodies, be they federal, provincial or municipal, seeks to curtail the rights of its citizens, or that of anyone else in Canada, they must show that the laws that they pass do not conflict with the rights that everyone is guaranteed by this document.

The term ‘fundamental freedoms’ carries with it an implicit notion that some measure of freedom with respect to us exercising our rights of choice is available to all of us. In principle, that is correct but in practice it isn’t necessarily so. For example, we do not have the right to walk down the middle of a busy highway nor can we scream out the word, FIRE! in a crowded theatre when there is no fire.

Even though there is a constitutional guarantee of individual rights such as exists in our Charter of Rights, the rights of the citizens to do as they please are never viewed in absolute terms; as they must yield to the common good.

There must be a compromise between the specific rights of the individual and the welfare of society in general. That is what the court hearing this case must determine.

The restraints put on the homeless who want to settle in the park and make it their home must not only be judged subjectively, as applies to a fewer number citizens in the city, but also it must be judged objectively as to protecting the rights of the majority of the citizens by ensuring that the majority of the city’s citizens are able to exercise their rights to enjoy the advantages given to them by the city via the use of their parks, unhindered by the minority who wish to use the park for a purpose other than that to which the park was not created.

There are times when the good of the individual takes precedence over the good of the majority such as protecting a citizen from abusive police treatment simple because the police regard him as a criminal.

But in this instant case, the issue really boils down to a simple question, it being; ‘Will society suffer because of the interest of the minority who would choose to use society’s parks for their own use, a use that will end up being detrimental to the good of the majority.

For example, the right to a peaceful assembly cannot be exercised in such a way as to interfere with the rights of others to have full access to a street.

The U.S. Supreme Court dealt with an issue not unlike the one I have just stated when it dealt with Public Utilities Commission v. Polack, a case heard in 1952.

In that case, a street railway company in the District of Columbia, whose service and equipment was subject to regulation by the Public Utilities Commission of the District of Columbia, received and amplified radio programs through loudspeakers in its streetcars and busses. The programs consist generally of 90% music, 5% announcements, and 5% commercial advertising. The Commission, after an investigation and public hearings disclosing substantial grounds for doing so, concluded that the radio service is not inconsistent with public convenience, comfort and safety; and permitted it to continue despite protests of some passengers that their constitutional rights are thereby violated.

The court held that neither the operation of the radio service nor the action of the Commission permitting its operation was precluded by the Federal Constitution. The court further said that the supervision of such practices by the Public Utilities Commission in the manner prescribed in the District of Columbia meets the requirements both of substantive and procedural due process when it is not arbitrarily and capriciously exercised.

It also said that the personal liberty which is protected by the Fifth Amendment does not permit an objector to override the preference of the majority of the other passengers and the regulatory body's finding, upon hearing and evidence, that the radio service was consistent with the public convenience, comfort and safety.

In applying this judgment with respect to the issue as to whether or not the homeless can usurp the use of the park for its own purposes, let me put their case before you in the same light as the one previously given to you.

In my opinion, the Charter of Rights does not permit the homeless to override the preference of the majority of the citizens and the city’s bylaw when it is against the best interests of the citizens of Victoria and its tourists to use the park as their permanent residence as this is inconsistent with the public good.

If I have learned anything from my 42 years of practice in law, it is this; never assume what a court will say in its decision. What I have merely done is to give you my opinion.

Beside, there are beaches (albeit stony) on the south shore of Victoria where they can sleep unhindered by anyone and it won't interfere with those wishing to use the park and they wont be a hindrance to anyone on the beach since no one swims at that beach because of the stones.

When I learn what the decision of the court in B.C. is, I will let you know.