November 5, 2024
In this Q&A, CCS Summer Student Krystin Hoffart speaks with Professor Anna Lund — a law professor at the University of Alberta and member of the team who challenged the City of Edmonton’s encampment displacement policies in litigation, which was ultimately dismissed on standing grounds. We explore the possibility of using freedom of expression — which is protected under section 2(b) of the Charter of Rights and Freedoms — to challenge decampment laws and policies restricting or banning homeless encampments.
Q. Why do you think that freedom of expression claims are infrequently pursued when challenging decampment laws, policies, or practices targeting unhoused people? What kinds of pitfalls do you think would accompany a section 2(b) claim in this context?
A. I’m not a freedom of expression scholar, but I know that there are some encampments of unhoused people that have had a specifically expressive purpose. I’m thinking of Camp Pekiwewin, which was set up during the pandemic down by Rossdale Flats in Edmonton. There was an underlying political purpose to that encampment around the reclamation of land and finding new ways to govern ourselves. I’d say there was a sort of Abolitionist thread to their thinking.
So why doesn’t section 2(b) typically get raised? One answer is that section 7 has been central in the encampment context — and I think appropriately, because encampments in those cases are more than expression. They’re also a life sustaining activity: when we’re talking about removing people, we’re talking about undermining their ability to protect their bodily and psychological integrity, their lives. Yes, other sorts of arguments have been made in some of the encampment cases as well. But if you look at the decisions, they focus on section 7.
That’s partly because so many of the encampment cases have been decided at a preliminary stage on an injunction or standing claim where you’re not doing a deep dive into the merits. So even if the parties are raising a bunch of different Charter grounds, the courts don’t need to look at that. They can say, “section 7 is a well-trod path, and we are satisfied that section 7 is made out on the minimum basis required for standing or an injunction.” And then they go on to look at other things; for an injunction, it often fails on something like irreparable harm or balance of convenience.
As a litigator, there’s also a sense that the best route for your client might be to follow the path that’s already been argued — where people have already won or where there’s case law saying, “yes, section 7 is an issue here.” At the same time, though, you do see litigators trying to tell different stories about what’s happening in encampments by looking at different aspects of the Charter. We’ve seen a lot of that around section 15, because encampments do hit groups differently. Being displaced from an encampment means something different in terms of impact if you are a woman or gender minority, or if you’re an Indigenous person or someone with a disability.
So sometimes section 15 is argued, and as you’ve noted section 2 has been argued in cases like the Edmonton litigation and Abbotsford (City) v Shantz. In both those cases, though, it was argued in terms of assembly and association, and not expression. In Shantz, however, the court does a deep dive on the section 2 claim, and it actually looks to freedom of expression and the case law around it to try and understand how freedom of assembly might be at play. There’s so little on freedom of assembly, because it’s so often invoked alongside freedom of expression, but it’s a separate section of the Charter.
Q. It’s obviously common for non-profit, non-governmental organizations to be involved in litigation in this context, bringing suits on behalf of affected parties. How does the availability of funding and staff play into these organizations’ legal strategies and whether a freedom of expression claim is made in this context?
A. Limited resources are a reality of litigation on behalf of marginalized groups. If we look at what’s available, there’s Legal Aid — but Legal Aid doesn’t cover this kind of test case litigation in Alberta. In Ontario there is some funding for test claims and a well-funded clinic system, and some of those clinics have been involved in encampment litigation. We have clinics in Alberta, but they’re often restricted by the terms of their funding to individual representation — the tenant who is being evicted from their house, the person who’s lost their job. The funding models don’t really permit much of this sort of test case litigation. Occasionally, they do find a way to bring that kind of stuff forward, but they’re not resourced to do it.
There’s also what’s called the Court Challenges Program, which is funded by the federal government. You can bring a claim under a language component or a human rights component, but the latter must engage federal legislation. Encampments are primarily about municipal bylaws and provincial trespass legislation or municipal government legislation, so they don’t obviously lend themselves to that kind of funding application.
You could apply for advanced costs, and say, “you know, there’s a compelling case here that’s not going to be heard otherwise — government action created the problem so they should pay us costs ahead of time.” If you bring that kind of application and win, that’s a great thing! But the application in and of itself is a significant undertaking. It takes time. It takes resources. In the encampment context, these things are often being decided on a pretty time-limited basis.
That was one of the fights in the Edmonton encampment litigation — the plaintiffs wanted the matter heard before it got really cold, and the City and police wanted more time to test the evidence. The plaintiff had been hoping for a November date, but it ended up being heard in January, which still did not leave time to get before court and seek advanced costs.
Another option is crowdfunding, but how much can you get from the public to bring forward this sort of thing? You could also go the pro-bono route, which is how the Edmonton litigation went forward. I think that if you asked counsel representing the unhoused persons in the Edmonton litigation they wouldn’t consider themselves to have donated time, but they donated their time. That’s time they could have used to do legal services on a billing basis and make money, and they forwent that to bring the claim forward. One of the reasons that you don’t see more of this kind of litigation, especially in Alberta, is because it relies on people being generous with their time.
Q. So it sounds like there are some resource-based hurdles associated with bringing this kind of litigation. Are there any procedural hurdles that non-profits face when they bring these types of cases, given that they’re not the party directly affected by the decampment policies?
A. When people are litigating, they often have private standing. If you’re hit by a car and you sue the other party, you’re suing because you’re the person who was injured. Some encampment cases have been brought on the basis of private standing, where an individual has been displaced from the encampment they were living in and applies to the court for relief. Alternatively, they may be specifically named as a defendant and are then responding to government action. Many of the encampment cases involve the government applying for injunctions to have encampments removed.
In those cases, you have a private individual, but there are a lot of reasons why people living in encampments are not well-positioned to undertake litigation. You need to be in regular contact with your lawyer. You need to be able to provide affidavit evidence and undergo questioning on it. You need to be able to provide instructions throughout. People living in encampments are struggling to stay alive day-to-day. If you think about Maslow’s Hierarchy of Needs, suing the government is pretty far down that hierarchy.
In other cases — like the Downtown Eastside Sex Workers United Against Violence case — the Supreme Court of Canada has developed a doctrine called public interest standing, which basically says that somebody else can bring litigation forward on behalf of the harmed party. So as you mentioned, we’ve seen encampment cases where non-profits have sought remedies on behalf of people living in encampments. They’re saying, “look, the affected persons face too many hurdles to do this themselves, so we’d like to bring this litigation on behalf of them.”
It’s then up to the courts. It’s a discretionary decision as to whether they grant the organization public interest standing. There’s a three-part test where you must show that there’s a serious issue, that the party applying for standing has a genuine interest, and that it’s a reasonable and effective way to get the matter before a court.
Public interest standing isn’t just organizations applying on behalf of people. It can be a person applying on behalf of someone else. An early standing case from the Supreme Court of Canada involved an anti-abortion activist named Joseph Borowski, who was applying for standing on behalf of fetuses to challenge the criminalization of abortion in the Criminal Code. And there have been a couple of cases in Alberta (see here, and here) where an organization named Zoocheck — and I believe some individuals as well — have unsuccessfully applied to have standing on behalf of Lucy the elephant.
Q. You’ve already touched on this in your first answer, but funding and procedural hurdles aside, are there any scenarios where you think a freedom of expression challenge to decampment policies would be persuasive? What kinds of factors might make a court more likely to accept this type of claim?
A. It seems like it would fit better in a case where people living in an encampment are explicitly trying to communicate something with their encampment. I think about one of the affiants in the Edmonton litigation who had been living in a tipi, and after one of his displacements he set it up in front of City Hall.
It makes me think that the lines around what is and isn’t expression are very blurry. I can see it being an avenue worth exploring. And when we think about the Charter grounds as different ways of saying what’s at issue in an encampment, a freedom of expression ground would open a space for litigators to tell a different story about the benefits of encampments and the drawbacks of their displacement.
The counterpoint to that is that every extra Charter claim requires evidence. This goes back to the question you asked earlier, but when you’re working in a world with very limited resources, you at some point need to be a little bit picky and choosy about what you’re putting in your pleadings.
Maybe you won’t do that at the pleading stage. Maybe you put it in your pleadings, and then see what evidence you’re able to elicit, what evidence comes out from the other side, and you realize at some point you need to abandon that claim. Or maybe at the start you just say, “look, this is really a case about life and death, and that’s what we’re sticking to.” I think those are the sorts of things you would need to balance on the particular facts of a case — is there something about this case that really speaks to an expressive purpose? How much time and energy do we have to pursue that? And does telling that story say something important about the lived experiences of people in encampments and the way that the Charter can or should protect that aspect of their humanity?
Q. Challenges to decampment policies on section 7 grounds of life, liberty and security of the person hinge on whether the court feels there is enough accessible shelter space to accommodate unhoused people. Do you think there’s a gap between how the public and a court might define sufficient/accessible shelter space? For example, are courts sensitive to the risks or concerns that might lead encampment residents to feel safer in an encampment than in a public shelter?
A. It’s really hard to appreciate the barriers to being in a shelter when that’s so far from your lived experience. Not just for courts, but for all of us who haven’t had the experience of living in a shelter. Some barriers might be easier for us to grasp. If there’s no wheelchair ramp up to the front of the shelter or no women and child-only spaces, those are things we recognize as barriers.
When you get into other kinds of barriers that require an understanding of someone’s lived experiences, it becomes more difficult to understand. What really struck me about reading evidence in the Edmonton case and other cases about shelter space accessibility is the way that shelters are inaccessible to Indigenous peoples for reasons tied to the history of residential schools. A lot of shelters are run by organizations that have some sort of connection with the Christian religion. If you have a history of forced religious education — if you’ve had negative experiences directly or through your family members in residential schools — then I hope people can understand that a religious institution with a lot of rules is going to feel extremely unsafe. Likewise, there are people who feel that congregate care, where you are sleeping in a room with a bunch of other people, feels unsafe, and unfortunately there’s some dramatic numbers about violence in shelters backing those feelings up.
It can be hard to hear those stories when they’re so different from our own experience, and we might think, “of course I would rather go stay at the shelter than sleep outside when its minus 30.” But until you’ve walked the walk, it’s hard to understand the ways people’s choices are constrained.
Q. We’re getting towards the end of our interview, but I have a few more questions for you. The jurisprudence in this area seems to suggest that a government can counter section 7 challenges simply by adding more shelter spaces in the affected region, which may fail to address core issues underlying the housing emergency. Do you think that a Charter challenge on freedom of expression grounds is a useful way of challenging decampment policies despite the availability of shelter?
A. Again, I think I would need to know what is being expressed, and how section 1 is interpreted in that situation. But what you’ve really put your thumb on is that encampment litigation is not addressing the underlying problem that we don’t have a meaningful right to housing in Canada. We have a right to shelter in public spaces overnight — between the hours of 8pm and 7am or whatever it is — if there aren’t enough shelter spaces in your community. It is such a narrow right to shelter.
We’ve got things like the International Covenant on Economic, Social, and Cultural rights that Canada signed, which guarantees and recognizes every individual’s right to adequate housing. We’ve got the National Housing Strategy Act that recognizes that the right to housing is a fundamental human right. But we haven’t had our courts recognize it.
Let’s go back to procedural hurdles. The Tanudjaja case — a big piece of litigation arguing that there was a right to housing in Charter — was found not to be justiciable. We have governments that have not taken the necessary steps. Good things have been done, but not enough. So, we’ve got growing numbers of unhoused people and now we’re arguing about whether they can stay in their tents outside. It’s important work, but if you think about whether it’s sort of preventive or reactive law, it’s reactive. Which is disheartening, because it’s not addressing the underlying causes.
Q. As a litigator, is there a downside to making a free expression claim in addition to a section 7 or section 15 claim? Is there a risk, for instance, that a court will take a dim view of a litigant who seems to be throwing too much mud at the wall, just hoping some of it sticks?
A. Maybe! As we discussed, there’s the question of resources for developing an evidentiary record. I also wonder if making an explicit expressive claim would alienate you from supporters and the judge who is hearing your case. Depending on what sort of expressive claim you’re making, it may be challenging some foundational beliefs or power structures. If you have an encampment of unhoused people who are arguing for Land Back, some people will really support that mission and others will be very concerned. If you centre that in your litigation, you might get a judge who is very sympathetic to that sort of expressive claim but you might get one who is not. That’s a risk you’d be taking.
Q. Is there anything we didn’t talk about that you’d like to add?
A. The only thing I would say is that community organizing is so important. The Edmonton litigation got a lot of media attention, but there was already a lot of organizing that was going on before, and there’s a lot of organizing that continues. The litigators got to play a role for a while, but they were part of a much bigger team. As lawyers, we’re always interested in the legal aspects of an issue, but it’s often the other things that really change what we do in our communities.
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