In the run-up to the Vancouver Olympics, a law has been proposed in British Columbia that would allow police officers to forcibly transport homeless people to shelters during ‘harsh’ weather. Once they are at the shelters, they will be permitted to leave at their discretion. While it is never desirable for people to be harmed for lack of shelter, this law strikes me as morally and legally problematic. It is certainly seems contrary to section nine of the Canadian Charter of Rights and Freedoms, which provides protection against arbitrary detention and imprisonment. The question then is whether it is ‘saved’ by section one, which allows for the other rights to be subjected “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Under the Oakes test, which has become Canada’s standard but unofficial way of interpreting section one of the Charter, there are a number of requirements for allowing a law that violates a section of the Charter from being ‘saved’ by the ‘reasonable limits’ clause in section one. There must be a “pressing and substantial objective” and the means must be “proportional.” More specifically, the means must be “rationally connected to the objective,” involve a “minimal impairment of rights,” and that the law be proportional to the objective. People dying of exposure could certainly be categorized as a pressing and substantial objective, but I am less sure about whether there is a minimal impairment of rights involved. Certainly, the onus must be on those advocating the law to provide a strong argument for why it is constitutional. Such an argument would have to establish clearly that existing powers on the part of emergency services are inadequate to prevent homeless people suffering and dying during extreme weather, that forcible relocation would help, and that the violation of rights is proportional to the benefit.
The law may also be discriminatory insofar as it is meant to apply only to the homeless. Under the law, it seems like police would treat people differently when they came across them in extreme weather, based on whether they have a ‘home’ somewhere. The law would certainly never pass if it also included provisions for police to forcibly take people with homes back to them, if they happened to be out during an extreme weather event.
It is certainly important that shelters be available for the homeless, and that they be able to access them (especially during times of harsh weather). That being said, it is not clear why police should have the power to forcibly transport people. For one thing, the law risks being abused to clean up Vancouver’s image during the Olympics. Vancouver’s problems with drugs and homelessness are certainly something the Olympic organizers would want to keep out of the media. If they did so, however, it would be a shame; it would show that the city is prepared to simply suppress the visibility of enduring problems, rather than making a serious effort to respond to them.
Arguably, most of the problem of homelessness is the product of a weak social safety net, especially in areas like mental health and the treatment of drug addiction. For people who have others who care about them, it is possible to get reasonable assistance with such problems. For people with serious mental issues and nobody to play an assisting role, things must be much more difficult. Authorizing police to round up people who have committed no crime when it is cold and rainy seems more like an awkward cover-up mechanism than like a policy motivated by genuine concern for human welfare.
