October 17, 2024
In this Q&A, CCS Summer Student Krystin Hoffart talks to Professor Richard Moon (University of Windsor) about 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 restricting or banning homeless encampments.
Introduction
Krystin: So, as you know, encampments have been in the news recently for two reasons — demonstrations against the conflict in Gaza, and the displacement of unhoused people living together on public land. Both forms of encampment involve erecting temporary structures in public spaces, but legal framings of them diverge. Whereas politically motivated encampments are accepted as a form of expression protected under section 2(b) of the Charter of Rights and Freedoms, challenges to laws restricting encampments of unhoused people typically do not include section 2(b) claims. Instead, litigation in this context typically centres around the right to life, liberty, and security of the person (although such litigation may also include claims based on other Charter rights too).
Q. Why do you think that only some encampments are treated as expressive by litigants? And should both forms count as conveying meaning in a way that is protected under section 2(b) of the Charter?
A. I think that if the right to free expression is to have any substance, its scope needs to be limited to acts that are intended to convey a message — which is how our courts defined expression in the early cases that established the test for determining whether section 2(b) had been breached.
In the Irwin Toy case, the Supreme Court said that any act that is intended to convey a message will count, at least prima facie, as expression. To illustrate how broad this category might be, the Court gave the example of parking contrary to the rules. The Court recognized that parking against the rules would not ordinarily be viewed as an act of expression — people often park their cars against the rules because they can’t find a convenient spot, or they haven’t got any change, or some other similar reason. They are not trying to communicate a message and so their act does not count as expression. But if someone parks against the rules to convey a message, as a protest, for example, that would count as expression under section 2(b).
It’s possible, of course, to look at any voluntary human act as expressive. How someone dresses, or carries themselves, what they choose to eat, may reveal something about them to others. If I jaywalk or park illegally, it might say something about me, such as my indifference to rules. But if we were to define expression this broadly, so that it extends to any voluntary human action, then the free expression right would really just amount to a liberty to do whatever you choose to do, subject to limits under section 1. If we define expression this broadly then we would also have to adopt a very weak standard of justification under section 1.
So, the courts then have sought to define a subcategory of human action that we call expression, which one might refer to as communication: acts that are intended to convey a message or meaning to others — to an audience. When we communicate with others — when we try to convey a message to an audience — we want the audience to recognize that we’re trying to communicate something to them so they will look at our action as carrying meaning and try to understand that meaning.
This meaning might be obscure, and the audience may not understand the message — it is certainly true that communication can engage its audience on many levels, some of which are more explicit or conscious than others. What’s important is the speaker’s intention to convey a message to others, and part of that is an intention that others recognize the act as having meaning. So, when I use traditional forms of language, such as the spoken or written word, I signal to my audience that I’m trying to communicate something to them and want them to try to grasp my meaning.
So what about an encampment? There is no question in my mind that an encampment that is part of a protest counts as an act of expression. It’s intended to convey a message. The message, or a similar message, could be conveyed in other ways, of course, but as a form of protest an encampment has a particular force or significance. Sometimes an encampment can represent a particular form of social organization, which may be part of its message. In the case of the Occupy encampments, several years ago, it was recognized by the courts that they were intended to model a different, more egalitarian or democratic form of collective life. There is no question that the pro-Palestine student encampments are intended to convey a message and therefore count as expression under section 2(b) of the Charter.
The difficult question in the case of encampments, and other forms of protest, is always, “What are the appropriate or justified limits?” Protest in public spaces always involves a degree of disruption of ordinary life or alternative uses of the particular property. How much disruption is too much? For how long is it acceptable for the disruption to continue? Those are the difficult questions, and reasonable people may answer these questions differently, although it is important that the message of the protest, as long as it does not amount to hate speech, does not affect how we answer these questions.
So, let’s return to your original question, which is “Well, what about other kinds of encampments that are meant to provide a place for those who are otherwise without shelter?” Of course, one could stretch the idea of expression to incorporate encampments of that sort, but I don’t think that we ordinarily understand these encampments as intended to convey a message, even if their existence does tell us something about the problem of poverty and homelessness. They are established as a matter of necessity: because people require shelter, a place to reside, and because of the absence of real alternatives. If that’s what encampments are really about, if that’s the main object, then I don’t think they count as expression and therefore they will not fall within the scope of section 2(b) protection. There may of course be other Charter rights, such as section 7 — life, liberty, and security of the person — that can be invoked to protect encampments.
Q. This has been a good introduction to our next question, which is designed to help clarify where the line is, legally speaking, between non-expressive behaviour and behaviour which conveys meaning and is thus protected under section 2(b). We’ll start with a broad version of the question, and then I have four specific scenarios to ask you about afterwards.
To start, erecting a temporary structure in an encampment helps an unhoused person survive. Can an act that is necessary to meet one’s basic needs double as a form of expression? Or does triggering 2(b) protection always require something more than this?
A. An encampment can count as expression if it is intended, at least in part, as a statement about the problem of homelessness. I don’t think that that’s ordinarily what’s going on when encampments of that kind are established, but it’s certainly possible.
If you think about panhandling, the primary purpose of a panhandler is to obtain money from passersby. Occasionally people make the argument that this is political speech — a statement about economic inequality or homelessness — but I think that’s not really what’s going on. The panhandler is seeking help and is not ordinarily making any sort of comment about the state of the economy or the injustices of the capitalist system.
Panhandling, though, is a form of expression, even if is not political expression. The panhandler is saying to others “I have need, can you help me?” — either explicitly or implicitly. Sometimes panhandling is viewed as a less valuable form of speech — as similar to commercial speech, as simply instrumental. I don’t think that’s a fair assessment of the panhandler’s message, however, which is an expression of need and a request for help from others. I think it should actually be viewed as high-value speech.
But returning to your main question: I don’t think we can fit encampments into section 2(b) without stretching the scope of the right so far that it can no longer provide meaningful protection.
Q. What if the location of the encampment suggests a political motivation, such as in a high-traffic area in front of a legislative building? Is that more likely to be viewed as protected expression?
A. The question would be why is it located in that place. But sure, if it’s on Parliament Hill or in front of the legislature or a city hall, that would suggest that it is, at least in part, intended to be a political statement (e.g. “we are here, we need to be housed”). So yes, if the choice of location is intended to convey a message to political actors or others, then it could absolutely fit within the scope of section 2(b) protection.
Q. What if the residents of an encampment have political or personal reasons for living there rather than accepting available shelter space? For example, some particularly vulnerable people might have concerns over a perceived risk of abuse in an available shelter, and may feel more comfortable in an encampment. Does choosing not to accept available accommodation in that context express meaning?
A. I think probably not. Again, if someone feels safer or more comfortable in a particular place or within a particular community, that’s still about their own situation — their own needs or preferences and is not intended to convey a message to others. Absent such an intention, their act would not count as expression.
Q. What if the encampment persists after authorities order residents to leave? Does the defiance implicit in maintaining the encampment after that point strengthen the case for viewing it as expressive?
A. Well, I guess it could. But again, if the same motivation is operating — that the residents are there because they need a safe environment in which to shelter then it’s not clear to me this involves conveying a message simply by breaking the law. If you’re breaking a rule in order to protest, that’s one thing. But if you’re breaking the rule because you still need or want to live in this way, I don’t know that that amounts to conveying a message to others.
Q. What if the encampment has a name that suggests an act of protest, like the “We Exist” Tent City in Coquitlam, BC?
A. It might. It just depends again on whether you think that is what the encampment is really about — whether you see it as simply a group living there out of necessity or instead as a form of protest.
Q. You’ve already touched on this a bit in your previous answers, but let’s say that a court agreed that in one of the scenarios we just discussed, an encampment of unhoused people is eligible for freedom of expression protection. A critic might say that this brings the threshold for establishing a section 2(b) violation too low. What are the merits and drawbacks of this position, and are there other counterarguments you think a decision like this might generate?
A. I think the principal concern is that if you adopt an expansive view of expression, you will have no choice but to water down the requirements needed to justify the restriction of expression.
There were some early 2(b) cases that were addressed by lower courts in Ontario and Quebec in which margarine producers argued that the requirement that they not colour their product in a certain way (so that it would resemble butter) was an interference with their expressive freedom. In other words, their decision or choice to colour their product in a particular way was an act of expression protected under 2(b) that could only be restricted if the state had good reasons to do so.
One of the judges, who considered the issue, adopted a very broad view of the freedom’s scope. She said, “Well yes, this is expression, but the state is justified in restricting it in order to protect the dairy industry.” That just didn’t sound like an acceptable reason to justify the restriction of a fundamental human right: the protection of one industry over another. In this regard, we want to be careful about how broadly we understand expression if we are going to maintain the integrity of the right and ensure that it can’t be restricted for just any reason whatsoever.
There are other rights, as you know, that could be invoked to protect encampments and that better capture the interest at stake. I’m not an expert on section 7 and its application to encampments, but if individuals require shelter and a safe place to live, there is a strong case to be made for section 7 of the Charter, which protects life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Some courts have decided that section 7 is breached when an encampment is shut down and the residents have no safe or acceptable shelter alternative.
Q. This leads very neatly into my next question! Given that encampments really are about individuals’ personal security and safety, isn’t it just too easy to argue that the expressive interest at stake is peripheral, and that the justificatory bar should therefore be relatively low?
A. I really do think we want to be careful about expanding rights claims because we feel strongly about the injustice of a particular situation. Of course, we need to address homelessness. Of course, we want to ensure that people have a safe place to live. Encampments aren’t ideal, but they are better than some of the alternatives available to people.
We run the risk of undermining the role and significance of certain rights and enabling their use in cases in which they really should not be used, if we expand their scope to address a particular wrong. However sympathetic I may be to the protection of these encampments — and however unhappy I might be with the police action taken against them — I worry about expanding the scope of Charter rights so that they can address everything and anything we think is wrong or unfair. Sometimes we need to take political action to address public wrongs, and we cannot always look to the Charter for a remedy.
Q. Even if the expressive character of a homeless encampment is limited, is there any value in using a 2(b) claim to strengthen a section 7 one? For example, could you argue that the existence of a secondary 2(b) violation lends support to a claim that a law or action is grossly disproportionate, and hence not in accordance with fundamental justice?
A. I think that’s unnecessary. Either a section 2(b) claim can stand alone or it can stand alongside a section 7 claim, but I don’t think we need to incorporate 2(b) into a section 7 claim. If there really is an act of expression here, then we can rely on section 2(b), and maybe also but separately we can look to section 7. But I don’t see the necessity or appropriateness of trying to implant section 2(b) into a section 7 claim, as one of the principles of fundamental justice.
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