Vancouver Canadian Charter challenge seeks to give homeless campers daytime sheltering rights

A lawsuit from the B.C. Civil Liberties Association (BCCLA) aims to prove that prohibiting people from sheltering in public spaces in Vancouver during the daytime violates sections of Canada's Charter of Rights and Freedoms. 

"Shelter is a fundamental human right. It provides people with safety, security, community and is necessary, first of all, for survival," said Vibert Jack, litigation director for the BCCLA.

"What the city is doing to the unhoused community here in Vancouver is taking all of that away from them and killing them, frankly, and we want that to stop."

On Thursday, the BCCLA, along with three other plaintiffs with lived experience, filed the notice of claim in B.C. Supreme Court.

The challenge targets three city bylaws that "make it illegal for unhoused people to shelter outdoors during daytime hours." 

It also claims the city engages in daily sweeps to enforce the ban, destroying encampments and seizing their tents and other personal items, which it claims violates the Charter section that protects people against cruel treatment by the state.

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One of the plaintiffs in the case, Brittany Littlejohn, sheltered at Vancouver's CRAB Park for four years before they were moved out as part of a co-ordinated effort to connect them with more appropriate housing late last year.

"It wasn't perfect, but I became part of a community there," she said in a release from the BCCLA. "People who had nowhere to go, had somewhere to go until they could get housing."

Now Littlejohn says she's forced to pack up her tent and things every day at 8 a.m. and spend the day hauling them around the city.

"It's just colder ... harder."

Fellow plaintiff Jason Rondeau has lived outside along Hastings Street, under the Dunsmuir Viaduct, and in Strathcona Park and said the city's rules are not helping solve the problem of homelessness in the city.

"The city's solution is just to spread us out into the larger community and hope that we become less visible because of it," he said as part of the BCCLA's materials.

The claim argues it's "impossible" for vulnerable people, many of whom have complex needs, to set up and then disassemble a shelter and carry it throughout the day.

The city says on its website that people without housing are allowed to set up temporary shelters in parks from dusk to dawn, but they must be removed at sunrise "to make parks available to support the health and well-being of the whole community."

In 2009, the B.C. Court of Appeal established the right to shelter outdoors when there is a lack of adequate alternative shelter, at least overnight.

The principle has largely been recognized by courts in cities throughout B.C. and across the country, but the BCCLA argues that it leaves unhoused people vulnerable throughout the day.

Stepan Wood, with UBC's Allard School of Law, studied how courts from 2000-2022 ruled on government-sought injunctions to break up tent encampments.

He said in recent years, judges have granted fewer injunctions in favour of a more sensitive, balanced approach to homeless encampments, meaning the time might be right for a direct challenge on daytime sheltering bylaws.

"What makes this new lawsuit really unique is that as far as I know, it's the first time in Canada where the right to shelter in the daytime has been the central and really the only issue put before the courts," he said.

Wood says there are only about a handful of cities that have or are allowing daytime sheltering across Canada, but often for a very limited time or reluctantly.

He said that if the BCCLA manages to achieve a court-enforced change to Vancouver's bylaws, it would not result in entrenched, never-ending camps in city parks. 

"One of the main things that drives a lawsuit like this is that up until now, the balance has been skewed really in favour of the kind of non-survival related rights and interests of other users of public space," he said. 

"And the argument is that we need to give more constitutional weight to the basic interest in survival and dignity of all members of society."

The City of Vancouver has not responded to the claim.