THE RIGHT TO REFUGE

WHEREAS The Universal Declaration of Human Rights (Article 3) affirms that “Everyone has the right to life, liberty and security of person.”; and The International Covenant on Civil and Political Rights (Article 6.1) affirms that “Every human being has the inherent right to life” and that “No one shall be arbitrarily deprived of his life”; and,

WHEREAS the Canadian Charter of Rights and Freedoms (Section 7) affirms that “Everyone has the 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.”; and,

WHEREAS such rights are universal and inalienable, applying to all people, at all times, in all circumstances: and,

WHEREAS the United Nations Human Rights Committee affirms that the duty to protect life implies that States should take appropriate measures to address the general conditions in society that may give rise to direct threats to life such as homelessness[1]; and

WHEREAS the Government of Canada interprets Section 7 of the Canadian Charter of Rights and Freedoms to mean that “The right to life is engaged where the law or state action imposes death or an increased risk of death, either directly or indirectly”; and that “Security of the person will be engaged where state action has the likely effect of seriously impairing a person’s physical or mental health.”[2]; and,

WHEREAS extreme weather conditions may constitute an increased risk of death or serious impairment of health; and,

WHEREAS in extreme weather conditions, persons without shelter may seek shelter in public spaces; and,

WHEREAS the British Columbia Court of Appeal has determined that it is a violation of Section 7 of the Canadian Charter of Rights and Freedoms to prevent a homeless person from seeking temporary shelter when no suitable alternative shelter is available[3]; and

WHEREAS removing persons seeking shelter in public spaces without assuring that they have suitable alternative shelter can be considered a state action that exposes them to increased risk of death or a serious impairment of health; and,

WHEREAS removing persons seeking shelter in such conditions constitutes a violation of their fundamental rights under the Universal Declaration of Human Rights (Article 3), The International Covenant on Civil and Political Rights (Article 6.1), and the Canadian Charter of Rights and Freedoms (Section 7); and,

WHEREAS recognizing the fundamental right of people to refuse assistance; and,

WHEREAS recognizing the responsibility of governments and public authorities to maintain the security of their property and the public at large;

WE THEREFORE CALL ON ALL MUNICIPAL GOVERNMENTS to work with homeless service providers to develop a policy whereby during extreme weather conditions persons seeking shelter in public spaces shall not be removed from those spaces unless or until:

a)    They or their representatives are meaningfully engaged regarding their shelter circumstances; and,

b)    Based on this engagement, suitable alternative places of shelter and safe transport to them can be arranged; and / or,

c)     their welfare is assessed by qualified professionals; and / or,

d)    after their welfare has been assessed they refuse assistance.

[1] United Nations Human Rights Committee, General Comment 36, Article 6: Right to Life (3 September 2019), CCPR/C/GC/36, par. 26, available here: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G19/261/15/PDF/G1926115.pdf?OpenElement

[2] Government of Canada. Charterpedia - Section 7 – Life, liberty and security of the person (justice.gc.ca)

[3] See: Victoria (City) v Adams, 2008 BCSC 1363 where Madame Justice Ross states: “The uncontradicted expert evidence establishes that exposure to the elements without adequate shelter, and in particular without overhead protection, can result in a number of serious and life threatening conditions, most notably hypothermia.”