November 14, 2024
The Case AGAINST Section 2(b) in Decampment Litigation
Encampments have been a hot-button issue in 2024. Tents have been erected as part of pro-Palestinian demonstrations at over 15 Canadian university campuses,[1] and have in some cases been forcibly removed by authorities.[2] Municipalities have also cracked down on encampments constructed by unhoused persons,[3] and lawsuits regarding decampment policies — those which displace unhoused people sheltering in encampments — have made the news in Alberta[4] and Quebec.[5]
While temporary constructions on public property — or quasi-public property, in the case of universities[6] — are at issue in both these scenarios, legal approaches to the two types of encampments diverge. Section 2(b) of the Charter protects individuals’ freedom of expression[7] and has been applied to structures erected for political reasons,[8] but it has been largely avoided in constitutional challenges to decampment policies. Instead, litigation in this context has generally focused on section 7 of the Charter: the right to life, liberty and security of the person.[9] Sections 8, 12, and 15 have also occasionally been argued, albeit to varying results.
Despite the tendency of courts and litigants to neglect section 2(b) claims in the context of homeless encampments, freedom of expression has been used to successfully challenge legislation targeting unhoused people. The Ontario Superior Court recently ruled in Fair Change v His Majesty the King in Right of Ontario that a law banning panhandling in certain areas unjustifiably infringed unhoused persons’ section 2(b) rights.[10] This raises the question of whether there might be more room for freedom of expression claims in the context of anti-decampment litigation.
Considering the Fair Change ruling and the difference between the role that free expression rights play in the two encampment contexts mentioned above, this two-part article asks whether freedom of expression could play a greater part in protecting the rights of unhoused persons sheltering in encampments. To answer this question, however, we must first ask why section 2(b) has played such a limited role in decampment cases so far.
Specific Reasons for Neglecting Section 2(b) Arguments
There are several reasons legal teams may steer clear of making section 2(b) claims when challenging the constitutionality of decampment laws. The most obvious criticism of using 2(b) in such cases is that living in an encampment typically results from systemic barriers rather than personal choices.[11] Canadians who have experienced homelessness have pointed out a range of external contributing factors, including a lack of affordable housing, fewer job opportunities, cost of living hikes, family violence, physical and mental health challenges, and the lasting effects of the COVID-19 pandemic.[12] Arguing that an encampment is a form of freely chosen expression seems to blame unhoused people and suggest a level of autonomy over the situation that does not align with the reality this population faces.
Using free expression to characterize encampments also seems to miss the core point of the litigation: avoiding displacements to prevent life-threatening harm. Encampment evictions can pose serious risks to unhoused persons; research conducted in Denver, Colorado revealed that unhoused persons who were involuntarily displaced reported heightened health issues including infectious diseases, climate-related conditions (dehydration, frostbite, and heat stroke), substance abuse, and mental health deterioration.[13] In Edmonton, frostbite injuries for unhoused people spiked in early 2024 during a period where encampments were rapidly dismantled.[14] Displacements can also force a person to start over in another location where supports vital to their well-being are lacking.[15] Given the pressing, wide-ranging threats to safety and well-being that decampment policies can correlate with, litigators may be hesitant to stray from section 7 to test a court’s willingness to address the seemingly more marginal issue of expression.
Another problem with raising section 2(b) challenges in decampment litigation stems from the limited resources available to non-government organizations, which often launch lawsuits in this context.[16] The Centre for Constitutional Studies (CCS) recently conducted an interview with Professor Anna Lund — a legal scholar at the University of Alberta and member of the litigation team that challenged the City of Edmonton’s decampment policies[17] — who explained that it can be difficult for unhoused people to pursue an action while struggling to ensure their daily survival. Instead, it may be helpful to have another party pursue an action on behalf of unhoused people through the doctrine of public interest standing. These entities may have funding or staff constraints that make it particularly tempting for litigators to stick with tried and tested section 7 arguments (Lund noted that the case law is more developed for this section of the Charter in the encampment context). Crafting a section 2(b) argument might also be a particularly risky use of scarce resources given that, according to Lund, “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.” Such was the case in the Edmonton litigation, which did not advance a section 2(b) claim but was dismissed on standing grounds.[18]
A fourth conceivable objection to raising a section 2(b) challenge in encampment litigation relates to the scope of behaviour that counts as expressive. Courts may be hesitant to extend section 2(b) protection to homeless encampments because unlike some other forms of expression (including pro-Palestinian demonstrations), these structures serve a primary survival function, rather than attempting to convey a political message.[19] This doesn’t mean that an encampment of unhoused people can’t express a variety of messages, but at first glance it might be more easily understood as simply fulfilling the basic need of shelter. Given this presumption, it may be difficult to meet the legal requirements for section 2(b) without additional evidence of the encampment’s expressive intent.
In a recent interview with the CCS, Professor Richard Moon — a law professor and freedom of expression expert at the University of Windsor — echoed these concerns with stretching the limit of section 2(b) to protect homeless encampments. He noted that while technically all behaviours could be understood as conveying some meaning and could thus fall within the ambit of section 2(b), such an expansive interpretation comes with a significant price. As Professor Moon put it: “If we define expression this broadly then we would also have to adopt a very weak standard of justification under section 1.” Thus, a balancing act is at play: the easier it is to afford an action section 2(b) protection, the easier it might be for the state to justify an infringement under section 1. Given this challenge, Professor Moon noted that a section 7 claim or non-legal alternatives might be preferable to distorting section 2(b) too far. “Sometimes,” he said, “we need to take political action to address public wrongs, and cannot always look to the Charter for a remedy.”
Even if homeless encampments are considered a form of expression, section 2(b) may fail to give unhoused people meaningful protection. Treating homeless encampments as political demonstrations akin to the pro-Palestine encampments would subject the homeless encampments to legal problems inherent to protests; protests in public spaces cannot continue indefinitely without considering the needs of other stakeholders.[20] This means that if a decampment policy was successfully challenged on section 2(b) grounds, encampment residents would not necessarily be allowed to maintain their shelters in one place long term — an outcome which may negatively impact unhoused persons’ ability to connect with valuable services.[21] As Professor Lund noted, “encampment litigation is not addressing the underlying problem that we don’t have a meaningful right to housing in Canada.”
On the other hand, alternate sections of the Charter that have been used to challenge decampment policies also have limitations complicating their ability to provide practical benefits to unhoused people. These constraints, along with other reasons for considering section 2(b) as a method for challenging decampment policies, will be explored in part II of this article, which will be published next week.
[1] Aloysius Wong et al, “Some blame outsiders for spread of pro-Palestinian encampments. The idea isn’t new, say students and experts”, CBC News (last modified 16 May 2024), online: <cbc.ca> [perma.cc/NK7G-BDDP].
[2] See e.g. “Police in riot gear use flash-bang explosives to clear campus protesters in Calgary”, CBC News (last modified 10 May 2024), online: <cbc.ca> [perma.cc/6ZYA-37Z8]; Coralie Laplante, “Pro-Palestinian encampment dismantled at Laval University on first day”, CTV News Montreal (2 June 2024), online: <montreal.ctvnews.ca> [perma.cc/5M4C-SN6J]; Nicholas Frew, “Alberta Crown stays charges against 3 men arrested after Edmonton police clear pro-Palestinian encampment”, CBC News (last modified 19 June 2024), online: <cbc.ca> [perma.cc/W62J-PV6D].
[3] See e.g. Wallis Snowdon, “49 homeless encampments dismantled in Edmonton since lawsuit scrapped”, CBC News (last modified 1 February 2024), online: <cbc.ca> [perma.cc/A3CS-4ZNQ]; Simon Little & Alissa Thibault, “Vancouver homeless encampment on provincial land ordered cleared”, Global News (2 February 2024), online: <globalnews.ca> [perma.cc/5YU6-GB8X]; Lyndsay Armstrong, “Stress builds as deadline to vacate some Halifax homeless encampments inches closer”, Global News (last modified 20 February 2024), online: <globalnews.ca> [perma.cc/3R9Q-T4E2].
[4] Karyn Mulcahy, “Judge dismisses lawsuit against city over clearing of homeless encampments”, CTV News Edmonton (16 January 2024), online: <Edmonton.ctvnews.ca> [perma.cc/D3PF-HPBS].
[5] Thomas MacDonald, “Quebec lawsuit could limit dismantling of homeless camps in the province”, Global News (28 January 2024), online: <globalnews.ca> [perma.cc/Y5Q4-FSSB].
[6] Joe Bongiorno, “Private property or public space? Encampments spark debate over campus status”, CTV News Montreal (25 May 2024), online: <montreal.ctvnews.ca> [perma.cc/3C25-SMPC].
[7] Canadian Charter of Rights and Freedoms, s 2, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[8] See Zhang v Vancouver (City), 2014 BCSC 2288.
[9] Supra note 7, s 7.
[10] Fair Change v His Majesty the King in Right of Ontario, 2024 ONSC 1895 [Fair Change].
[11] Alexandra Flynn et al, Overview of Encampments Across Canada: A Right to Housing Approach (Office of the Federal Housing Advocate, 2022) at 6, online: <homelesshub.ca> [perma.cc/LFF8-YHPN].
[12] “Homelessness: How does it happen?” (6 December 2023), online: < statcan.gc.ca> [perma.cc/G8VE-U5A3].
[13] Ashley A Meehan et al, “Involuntary displacement and self-reported health in a cross-sectional survey of people experiencing homelessness in Denver, Colorado, 2018-2019” (2024) 24:1159 BMC Pub Health, online: <bmcpublichealth.biomedcentral.com> [perma.cc/WU2B-2J8X].
[14] Lauren Boothby, “Frostbite injuries up for Edmonton’s homeless; advocates suspect link to encampment removals”, Edmonton Journal (12 August 2024), online: <edmontonjournal.com> [perma.cc/7H35-KQJV].
[15] Abbotsford City v Shantz, 2015 BCSC 1909 at para 213 [Abbotsford].
[16] See e.g. Coalition for Justice and Human Rights Ltd v Edmonton (City), 2024 ABKB 148.
[17] Ibid.
[18] Supra note 16.
[19] This distinction is drawn in Prince George (City) v Stewart, 2021 BCSC 2089 at para 83.
[20] Batty v Toronto (City), 2011 ONSC 6862 at para 10-15.
[21] Supra note 15 at paras 209, 213.
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