The “Disappear-You” Act

[Interspersed with my commonsense attempt to read the implications of the Assistance to Shelter Act is more schooled comment and elaboration in boldface. Also see No Home? Go to Jail!]

 
The draft Assistance to Shelter Act, introduced into the British Columbia legislature on 29 October 2009,

establishes a scheme for issuing and cancelling extreme weather alerts and enables police officers to transport persons at risk to emergency shelters when extreme weather alerts are in effect.

Introducing the bill, the Hon. R. Coleman elaborated (emphasis added):

When an extreme weather alert has been issued, we want people at risk off the streets and into safe accommodation of their own free will.

The legislation enables police officers to take adults at risk of harm due to weather to an emergency shelter where they can make the choice, after speaking to a worker or looking at the shelter and knowing that they could come in for a warm room and a meal, whether they wish to stay for the night.

 
The provisions of what might be called the Disappear-You Act look like a blank writ for unspecified authorities to take a person off the street and put them almost anywhere.

To start with, a “police officer” (a subsequent regulation will decide who that is) can “assess” whether anyone 19 or older in a declared area is “at risk of suffering physical harm because of … extreme weather conditions.”

“Police officer” is defined in s. 1 of the Act as a provincial or municipal constable, or a constable prescribed by regulation. If the Lt. Governor in Council were to prescribe by regulation a class of constables completely inconsistent with the Act’s definition or the plain meaning of “constable,” this would likely not be an authorized use of the regulation-making power.

 
Risk of physical harm might include almost anything: fungus from moisture, sunburn, chapped lips, etc. “Extreme weather conditions” under 8(2)(a) and 8(3)(c) can be defined as anything.

These could both conceivably be further defined by regulation. “Extreme weather” has been used without further definition in other legislation. It has been reported by the Tyee that

Criteria in Vancouver include temperatures near zero with rainfall making it “difficult or impossible for homeless people to remain dry.” Sleet, freezing rain, snow, high winds or temperatures below negative two degrees Celsius also count as extreme weather.

 
After assessment, the officer “using reasonable force if necessary, may transport the person at risk to an emergency shelter.”

The use of “reasonable force if necessary” appears a breeding ground for Charter challenges. Compare this provision with Part 2 of the Health Care (Consent) and Care Facility (Admission) Act (Health Care Consent Act). S. 4(a) and 5(1) of that Act require health care providers to obtain consent to health care from every capable adult, “even if the refusal will result in death.” S. 12 provides some exceptions where death or serious harm is imminent, the adult is incapable, there is no substitute decision maker, and there is a second medical opinion. S. 12.1 provides that these exceptions do not apply where there are “reasonable grounds to believe” that the adult, while capable, expressly refused consent.

 
Emergency shelter is defined as

a building or a portion of a building that is used to provide temporary accommodation free of charge to persons to meet the persons’ immediate basic needs for shelter.

For a person on the street in Vancouver, emergency shelter might become a portion of a jail in Kamloops?

There are some criteria in s. 6(2), and “emergency shelter” could be further defined by regulation.

 
A whole section (section 3) allows the minister (none other than Rich Coleman, Minister of Housing and Social Development) to step in and exercise his “opinion” about extreme weather conditions “that are not addressed or identified” in existing plans. In effect, the minister can declare whatever he wants to, whenever he wants to.

Although the Lt. Governor in Council has broad regulation-making power under s. 8, s. 3 appears subsidiary to s. 2. In other words, “community representatives” appear to have primary responsibility for extreme weather response plans and alerts. The Minister would presumably only issue an alert where there is no community representative or response plan, where there are extreme weather conditions not foreseen by the community representative or response plan, or where the community representative is not following their response plan. It is not clear exactly who these community representatives would be, or how they would relate to the Minister.

 
On the basis of assessments and opinions, undesirable persons thus can be removed to indefinite locations for indefinite periods. Like anywhere outside of the Lower Mainland for February 2010.

S. 6(1) provides that a person “assessed” as “at risk” may choose to accompany a police officer to an emergency shelter, or to go unaccompanied. The Minister has affirmed: “Once at the shelter, they [people at risk] have the right to decide whether or not they want to stay at the shelter.”

Leaving aside where these shelters might be or what might happen if the person “decides” not to stay, the logic and consistency with the Charter and the Health Care Consent Act is not evident. S. 7 of the Charter enshrines the right to “life, liberty, and security of the person,” which is reflected in the Health Care Consent Act’s robust consent provisions.

If a capable adult can decide to refuse health care, a capable adult could also presumably decide to refuse emergency shelter. S. 13 of the Health Care Consent Act provides that even for a preliminary examination, an adult (or relative or friend) must at least indicate that he or she wants health care. In the case of an incapable adult requiring health care, there are much more rigorous conditions than a “police assessment” before health care can be provided.

In the case of a capable adult, it is hard to understand how a “police assessment” would be necessary or sufficient to justify infringement of s. 7 of the Charter, or a lower consent standard than the Health Care Consent Act. In the case of an incapable adult, assuming for the sake of argument that a “police assessment” was somehow necessary and sufficient for a police officer to get a person to a shelter, it is hard to understand the source or nature of that person’s subsequent “right to decide whether or not they want to stay.”

 
Just imagine the potential weather constraints on discharging an “at risk” person who has been sent to a facility in the B.C. interior.

Given Vancouver and the interior’s respective weather conditions, it is hard to foresee any justification for why traffic, if any, would proceed from Vancouver to the interior.

Parliament has a great deal of legislative discretion, but it must exercise that discretion so as to respect the democratic legislative process and the Charter rights of those in whose interests they claim to act.

 
*     *     *

(In chronological order)

Sam Cooper / John Bermingham. “Cops kicking us out, homeless say,” Province (21 Oct 2009)

Dirk Meissner. “New bill to put homeless in shelters not about Olympics: Housing Minister,” Canadian Press / Globe & Mail (30 Oct 2009)

Jonathan Fowlie. “Act introduced to force homeless to shelters,” Vancouver Sun (30 Oct 2009) a15

Andrew MacLeod. “New law lets police force homeless to visit shelter,” Tyee (30 Oct 2009)

Damage Control in Vancouver

Introduction

In October 2009 a new chapter got written on civil liberties in Vancouver. A good title for that chapter is damage control. And the story is not going to stop with that installment.

Only two days apart, on October 20th and 22nd, formal statements went out to the media from the City of Vancouver and the Vancouver Police Department (VPD), with clear intent to counteract bad press on civil liberties. The legislators and their enforcement officers worked hand in hand.

Two weeks earlier, the BC Civil Liberties Association announced support for a challenge to the constitutionality of provisions in the omnibus Olympics bylaw passed by Vancouver City Council on July 23. This timely move put pressure on the fait accompli tactic of passing indefensible laws, then using those laws, and later on being forced to relinquish broad illegitimate powers – but only after the occasion for using them has passed.

Concurrent with news of the challenge, Jeff Lee published a story about International Olympic Committee (IOC) concern over “extreme” security plans for the Vancouver Olympics. The ongoing conundrum: how to keep everything looking nice without using obvious ugly force.

To further aggravate the circumstances, the provincial government at the same time was introducing the Miscellaneous Statutes Amendment Act (to alter the Vancouver Charter for Olympics measures as earlier requested by the City of Vancouver). Included in that legislation:

• Enforcement officers to enter private property with minimal or no notice to deal with signage offenses
• Maximum bylaw offense penalties increase from $50 to $10,000 a day
• Provision for up to six months of imprisonment for a bylaw offense

 
The Primary Contradiction

The mantra of policing authorities (in particular Bud Mercer, head of the Vancouver 2010 Integrated Security Unit / V2010-ISU) in various public forums throughout 2009 has been:

                     If it is legal now, it will be legal in 2010.

In effect, the police have been declaring that no new Olympics-inspired legislation will change the ground on which protesters stand. Yet Vancouver City Council changed eleven bylaws on 23 July 2009, and looks to do even more in November 2009 after the Province makes requested alterations to the Vancouver Charter.

 
City of Vancouver Double Talk

On October 20 the City of Vancouver issued a press release titled Vancouver to take further steps to ensure Charter rights protection in bylaws. Mayor Gregor Robertson claimed:

“We’ve made it clear from the beginning that respect for the Charter of Rights and Freedoms was our top priority.

However, the minutes of the 22 January 2009 meeting of the Standing Committee of Council on City Services and Budgets show that the Charter of Rights and Freedoms was not a “top priority” back then. To the two-and-a-half-page motion that requested 16 alterations to the Vancouver Charter by the provincial government, Councillor Ellen Woodsworth moved this amendment:

THAT the following be added to the motion:
i) THAT Council direct staff to include a direction to the Province that we ensure these amendments are covered by the Canadian Charter of Rights and Freedoms to protect the freedom of speech of its citizens.
ii) THAT we direct the Province to limit this to the duration of the Olympics.

Both portions of the amendment LOST. Here is the voting record:

• (Councillors Anton, Chow, Deal, Jang, Louie, Meggs, Reimer and Stevenson opposed to i)
• (Councillors Anton, Cadman, Chow, Deal, Jang, Louie, Meggs, Reimer, Stevenson opposed to ii)

The second part of the above failed amendment also exposes the cynical use of the word temporary in the City’s Vancouver Olympic Bylaws Questions and Answers:

WHY did the City of Vancouver ask the Provincial Government to introduce amendments to the Vancouver Charter?
TO FULFILL its responsibilities under Olympic agreements, the City of Vancouver requested temporary powers to assist in the fast removal of ambush marketing signs and graffiti during the Olympic Games.

Vancouver City Council specifically refused to ask the provincial government to limit the Vancouver Charter changes to the duration of the Olympics. There is nothing temporary about that.

 
Vancouver Police Department Spin

Two days after the City asserted something quite different from what most Councillors actually did in January 2009, the VPD’s Public Affairs on October 22 weighed in with their Olympic Update. The statement seems most vehement about designated areas for protest:

There are no protest-only zones, no demonstration pens and no corrals. … Protestors are free to gather in any public space as long as their actions are legal.

Compare the foregoing with this statement from the February 2009 Inventory of the Inner City Inclusive Commitments of a VPD “operating guideline”:

There will be designated protest zones for groups or individuals that wish to lawfully demonstrate in support of their views or opinions. In keeping with the provisions of the Criminal Code of Canada, demonstrators will not be permitted to interfere with other people’s ability to enjoy the Games. (p. 9)

Speaking to Vancouver City Council on July 7, V2010-ISU head Bud Mercer referred to plans for free speech zones for protesters. In Council on July 9 Mayor Gregor Robertson declared: “Vancouver is a free speech zone.” After that, V2010-ISU seemed to shift their terminology to safe assembly area, the heading currently used for a section of the FAQ on their web site. (Safe from what?)

 
End Result, So Far

Perhaps the two strongest pieces of negative media that confronted the City of Vancouver and the VPD in October 2009 were a column by Pete McMartin (Oct 12) that invoked civil rights activist Rosa Parks, and three forceful letters in the Vancouver Sun (Oct 14).

The IOC says nothing about civil liberties or political freedoms, either in its charter or in the host city agreement. Of foremost concern is advertising by the competitors of Olympic sponsors. The negative flip side is propaganda – all those words and images that can stick like muck to the Olympic brand and the brands of the sponsors. So the IOC seeks to squelch both by every means possible. Especially through the massive security forces provided by the jurisdictions that the IOC occupies for the term of the Games.

As the kickoff of the Olympic torch relay in Victoria on October 30 coincides with a zombie march of protesters, Olympic sponsor Vancouver Sun editorializes in favor of civility, which seems to mean this: “People who want to enjoy the activities planned in conjunction with the Games must be able to do so.”

That script eerily echoes the February 2009 mandate of the VPD: “Demonstrators will not be permitted to interfere with other people’s ability to enjoy the Games.”

 
*     *     *

(In chronological order)

BCCLA helps activists sue City over Olympic gag law – BCCLA press release (7 Oct 2009)

“Lawsuit challenges Olympic sign bylaw,” Vancouver Sun (7 Oct 2009) A4

Jeff Lee. “Vanoc security plan goes too far, IOC member says,” Vancouver Sun (7 Oct 2009) B7

Mark Hume. “Bylaw will stifle free speech, critics say,” Globe & Mail (8 Oct 2009)

Andy Ivens / Damian Inwood. “Olympics free-speech debate goes to court,” Province (8 Oct 2009)

Jonathan Fowlie. “Bill would allow police to enter homes during Games to remove illegal signs,” Vancouver Sun (9 Oct 2009) A5

Bob Mackin. “Free speech back on the block,” 24 Hours Vancouver (9 Oct 2009) 1

Pete McMartin. “Keeping eyes on those who want to burst the bubble zone,” Vancouver Sun (12 Oct 2009)

“Attack on free speech shows who’s really in charge [three letters],” Vancouver Sun (14 Oct 2009) A12

Ethan Baron. “Losing free speech is a sign of Oly times,” Province (15 Oct 2009)

Frances Bula. “An Olympic city’s delicate fight against ambush marketing,” Globe & Mail (15 Oct 2009)

Vancouver to take further steps to ensure Charter rights protection in bylaws – City of Vancouver News Release (20 Oct 2009)

Frances Bula. “Vancouver to amend guerrilla ad bylaws,” Globe & Mail (21 Oct 2009)

Damian Inwood. “City won’t jail anyone over Games bylaw: Mayor,” Province (21 Oct 2009)

Vaughn Palmer. “Olympic sign shots miss mark,” Vancouver Sun (21 Oct 2009) A3

Olympic Update – Vancouver Police Department, Public Affairs (22 Oct 2009)

Allen Garr. “Civil liberties, city clash over ‘propaganda’,” Vancouver Courier (23 Oct 2009) EW08

Damian Inwood. “Vancouver police say they won’t confiscate anti-Olympic signs,” Province (23 Oct 2009)

“Civility must be our guide as we prepare for the 2010 Games [editorial],” Vancouver Sun (27 Oct 2009) A12

No Home? Go to Jail!

Toward the end of September 2009, a BC Civil Liberties Association (BCCLA) press release set off a week of extensive media scrutiny. The Province of British Columbia was planning an Assistance to Shelter Act that would enable police to force homeless persons into shelters. BCCLA representative Tom Sandborn stated: “The intent of this legislation isn’t to protect, but to clean up [for the Olympics].”

The BCCLA posted to the web four internal government documents that revealed details of the planned legislation. At that point the Province had already failed to make its “Sept. 10 deadline to have a completed draft bill.”

One document states, “We’re using the declaration of an extreme weather alert as a trigger for a police officer to be able to take someone to a shelter.” Another opens with a concern about “requiring people to go to a shelter against their will [making] the legislation vulnerable to a Charter challenge,” and goes on to refer to “appropriate use of force options.” A third document outlines a process, under whose “last resort” measures “the individual may be taken to police cells, either voluntarily or involuntarily.”

In dealing with the reactions, BC Housing and Social Development Minister Rich Coleman blustered:

There’s a body of people out there who always want to tie everything to the Olympics. It had nothing to do with the Olympics. (Meissner)

With regard to timing, NDP opposition leader Carole James noted that the Liberal government has already had eight years to help the homeless.

In the winter of 2008-2009, Vancouver had 37 nights that qualified as “extreme weather.” Coleman has anticipated that only five or six people would be forced into shelters in a particular year, most of them in Vancouver (Fowlie / Ward). This disproportion – between the measures contemplated for an Assistance to Shelter Act and the potential effectiveness of such a law – is overwhelming.

Columnist Miro Cernetig identified inadequate funding for appropriate social services as the real issue. The next day his newspaper editorialized against the “problems with this bad law,” one that the government still seemed “determined to introduce.”

A month has elapsed now. So far the government has left the initiative off the table and avoided further controversy.

 
*     *     *

(In chronological order)

BCCLA uncovers plan to turn homeless shelters into jails   BCCLA press release (21 Sept 2009)

Ian Austin. “Law to force homeless into shelters dubbed Olympic cleanup trick,” Province (21 Sept 2009)

Frances Bula. “B.C. wants to force homeless into shelters in extreme weather,” Globe & Mail (21 Sept 2009)

Gary Mason. “It’s our duty to protect the homeless,” Globe & Mail (21 Sept 2009)

Dirk Meissner. “B.C. drafting law to give police power to compel homeless to shelters,” Canadian Press (21 Sept 2009)

Monte Paulsen. “BC preparing new law to apprehend homeless,” Tyee (21 Sept 2009)

Housing Minister reverses plan to arrest homeless   BCCLA press release (22 Sept 2009)

Jane Armstrong. “Move to force homeless into shelters draws scorn,” Globe & Mail (22 Sept 2009)

Jonathan Fowlie / Doug Ward. “B.C. plans to force homeless off streets in risky weather,” Vancouver Sun (22 Sept 2009) A3

Lora Grindlay. “Sweeping up homeless only isolates them more: Critics,” Province (22 Sept 2009)

Justine Hunter. “Weather trumps homeless rights: Attorney-General,” Globe & Mail (22 Sept 2009)

Miro Cernetig. “No need for a law to pick up the homeless in the cold,” Vancouver Sun (23 Sept 2009) A7

“Good intentions likely to result in bad legislation” [editorial], Vancouver Sun (24 Sept 2009) A14

Harsha Walia. “B.C. government wants to jail the homeless,” Vancouver Sun (28 Sept 2009) A9