BC Preparing New Law to Apprehend Homeless

Homeless British Columbians would be apprehended and transported to shelters as soon as this winter, under the terms of new legislation being prepared within the provincial Housing Ministry.

"We do think there should be a tool, at least, for an outreach worker or the police to take a homeless individual to the shelter and say, 'You must come with us to see this,' Housing Minister Rich Coleman told The Tyee. "If they say 'no,' there's nothing that we can do about that."

B.C. Civil Liberties Association director David Eby provided The Tyee with fragments of government e-mails in which the proposed "Assistance to Shelter Act" is debated. Eby said the law being discussed goes much farther than the tool described by Coleman.

"This bill would have police arrest citizens who are not guilty of any crime, and detain them without any charge, simply because they are homeless," Eby said. "There's no chance that the legislation described in these memos would pass a challenge under the Charter of Rights and Freedoms."

Nine concerns raised

The memos provided to The Tyee describe a law that would take effect only during periods of extreme cold or wet weather. An attachment entitled "Major Issues" lists nine concerns already raised within the government. Among them:

• Requiring people to go to a shelter against their will may make the legislation vulnerable to a Charter challenge. A legal opinion on this issue is pending.
• There is a need to establish a point at which the duty of the police officer ends. If an officer 'apprehends' a person and it turns out that (1) no shelter space is available, (2) a shelter refuses to accept a person, or (3) a person refuses to stay in the shelter, the officer remains responsible for that person. The officer would be liable for anything that happened to them if they left them outside; putting them in a cell against their will would violate their Charter rights; and the officer cannot continue to keep the person with him/her while attending to other duties.
• The appropriate use of force options will have to be determined.

Coleman said the act is being written in response to the case of a Vancouver woman known as Tracey, who died last December after refusing to be taken to a homeless shelter. Tracey burned to death while trying to warm herself with a candle.

"Can we at least give a power to take the person to the shelter, connect them with an outreach worker, show them that it is warm and there is a meal there for them, and let them make a choice," Coleman asked.

Right to refuse remains: Coleman

Minister Coleman repeatedly emphasized that under the draft legislation, a homeless person would still be provided both the opportunity and the right to walk away once they'd seen the shelter and spoken to an outreach worker.

"If after seeing the shelter, the person refuses, well, I don't think there's any more we could do," he said.

But the government memos released by Eby debate a process that would go further. A page entitled "Proposed process to assist persons to shelter," details a five-step procedure. The two final steps are as follows:

• If the person refuses, the police officer contacts and official (to be determined) by telephone who issues an administrative order which the officer would then enforce. The administrative order would name the person and order that they accompany the officer to an emergency shelter. This process enables the police officer to use force.
• The officer takes the person to a shelter. If the person is not accommodated at the shelter, alternate accommodation may be found. As a last resort, and in order for the police officer to discharge their legal responsibility, the individual may be taken to police cells, either voluntarily or involuntarily, where they will be held until the extreme weather declaration is no longer in effect.

Coleman said the bill is not yet ready, and suggested the public reserve judgment until an actual draft is tabled.

"Yes, we are having discussions to sort out these difficult issues," he agreed.

"My hope is we would try and get it ready for this fall, because I would like something in place so that we have some tools for this year's cold weather," he said. "We have time over the next few weeks to see if we can actually nail down the legislation, deal with whatever legal issues are remaining."

The minister, a former RCMP officer, also suggested considering how these cases impact outreach workers and police.

"With this Tracey situation," he said, "there was actually a police officer who knew there was a shelter bed, and couldn't get her to go... who is now living with the fact that that person died overnight on their watch."

Law crafted for Olympics?

"There aren't enough shelter spaces for people to go to,” Carnegie Community Action Project organizer Wendy Pedersen said in a release. "Just between April 1st and September 13th of 2009 almost 2000 people were turned away from the city's HEAT shelters because they were full. And now two of them are closed.”

Pedersen warned that the law could also force street homeless further into the shadows.

"If homeless people think they will be forced into shelters or jail for sleeping outside, they may decide to sleep in out-of-the-way places that are more dangerous than sleeping where a lot of eyes are on the street. Women, especially, could be in more danger because of the proposed policy."

Eby, the civil rights advocate, challenged Coleman to release all legal opinions regarding the proposed legislation.

"If the government has a legal opinion that argues this law will survive a Charter challenge, let's have a look at it," Eby said.

"But if they've already been advised that the proposed act is not constitutional, then one has to wonder why they are moving ahead with it anyway. Is this act being rushed into law solely in the hope it will last long enough to enable the government to round up the homeless during the 2010 Olympic Games?"