U.S. court rules against arbitrary arrest of homeless people

Los Angeles decision may reverberate within the U.S. and could lead to similar court challenges in Canada

Los Angeles (21 April 2006) - A U.S. court ruling has come down on the side of homeless people in Los Angeles and against hard-line politicians who demand their removal from the streets without providing any place for them to go.

The decision could have implications across the U.S. and it may also lead to similar court challenges on behalf of the homeless in Canada, using provisions contained in the Canadian Charter of Rights and Freedoms.

The 2-1 ruling, issued by the 9th U.S. Circuit Court of Appeals, declared a Los Angeles ordinance permitting the arrest and removal of the homeless from city streets to be unconstitutional, violating the Eighth Amendment which prohibits cruel and unusual punishment.

No one can be arrested merely for being homeless, the court said. If the city wants to remove homeless people from the streets, it must provide accommodation because they have no alternative but to violate the ordinance, it added.

The American Civil Liberties Union of Southern California sued the city in 2003 for enforcing the bylaw in the Skid Row area of Los Angeles where the greatest concentration of area homeless people live. The group lost in a lower court then appealed to the federal court.

The immediate impact of the federal ruling is to send the issue back to the lower court for a another finding "consistent with this opinion.”

Meanwhile, the Charter of Rights and Freedoms contains several provisions that may hold out some hope to homeless people affected by similar local bylaws in Canada.

As a general principle the Charter (in Section 12) declares that, "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment."

It also says (in Section 7) that "everyone has a right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." Further, (in Section 9) citizens are guaranteed "the right not to be arbitrarily detained or imprisoned."

Section 6 could also be cited as a potential defence for the homeless because it deals with the right to move about without undue restriction.

Specifically, it allows all citizens to "enter, remain in and leave" Canada, to "move to and take up residence" anywhere and to "pursue the gaining of a livelihood" in any province. These provisions are subject to some limitations. However, there is no language that appears to allow the homeless to be targeted directly in such a manner. The section also includes language that is sympathetic to the disadvantaged.

This week Toronto is trying to conduct a first "homeless" census to determine how many people within the city lack shelter and are living in the streets. Several Toronto
councillors want to take a hard line against street people, especially on the issue of begging.

The National Union of Public and General Employees (NUPGE) has long been a supporter of campaigns and initiatives to assist the homeless in Canada. One recent instance that made national headlines involved a decision by the British Columbia Government and Service Employees' Union (BCGEU/NUPGE) to replace shopping carts that police had threatened to seize from homeless people in Kelowna. The campaign generated so much bad publicity for the city that it dropped the idea. NUPGE