[Fwd: Trial of Toronto Homeless Advocates -- Day 1, Oct 26] (fwd)
Leslie Schentag (wy497@victoria.tc.ca)
Tue, 27 Oct 1998 12:19:08 -0800 (PST)
Here is some information about Totonto's Homeless Advocates
L.
"When Freedom Is Outlawed, Only Outlaws Will Be Free"
Webmaster:<L1><a href="http://gremlinresearch.ourfamily.com">Gremlin
Research</a>
Webmaster:<L1><a href="http://bcpoverty.freeservers.com">B.C. Poverty
Issues</a>
---------- Forwarded message ----------
Date: Tue, 27 Oct 1998 08:59:27 -0500
From: Graeme Bacque <gbacque@idirect.com>
To: HPN <hpn@aspin.asu.edu>
Subject: [Fwd: Trial of Toronto Homeless Advocates -- Day 1, Oct 26]
------- Forwarded Message Follows -------
Date: Mon, 26 Oct 1998 19:24:05 -0500
From: Bob Olsen <bobolsen@aracnet.net>
Subject:
POLICE TRY TO AVOID HOMELESS CHARTER CHALLENGE: Toronto Oct 1998
POLICE TRY TO AVOID HOMELESS CHARTER CHALLENGE: Toronto Oct 1998
HOMELESS ON TRIAL..... Report 26 Oct, 1998 by Bob Olsen, Toronto
OCAP (Ontario Coalition Against Poverty) lawyers are making a Charter
challenge (Oct 26-29) on behalf of the homeless.
The police, I believe, are trying desperately to avoid the Charter
challenge as they do not want their authority reduced by the courts.
They first avoided the Charter challenge by not showing up for our
tresspassing trial on March 4, 1998, forcing the Crown (prosecutor)
to drop the tresspass charges against 25 of us when our lawyers were
prepared to challenge the Tresspass Act by arguing that:
"A person's constitutional right to shelter takes precedence over
any property rights of the owner of an unused apartment
building."
Secondly, I believe that the Crown (prosecutor) intends to avoid the
Charter challenge in the current (Oct 26-29) criminal trials by
presenting a very weak case and thus allow the judge to declare the
accused not guilty on some or all of the charges and leave the Charter
challenge moot.
Today, (Oct 26) the Crown seemed to be acting as a defense lawyer,
questioning the defendants in detail about the plight of the homeless.
He did not seem intent on prosecuting the case. He was just going
through the motions. The criminal charges against three of the six
defendants were dropped. At the moment, John Clarke, Gaetan Heroux
and Mac Scott are still on trial.
OCAP's lawyers are prepared to argue that:
"... the principles of fundamental justice requires that
the state not deny homeless persons rights to seek shelter
in privately owned premises when the owner is not using or
developing the premises."
The trials will continue at Old City Hall in Toronto.
Tuesday, Oct 27, 10:00 am - 4:00 pm, courtroom 122
Wednesday, Oct 28, 2:00 pm - 4:00 pm, courtroom 125
Thursday, Oct 29, 10:00 pm - 4:00 pm, courtroom 124
And if necessary on Friday, 10:00 am, courtroom 116
Tuesday Oct 27 the defense will call a series of expert witnesses,
including, I believe, doctors Wang and Ty Turner, Bill Morris of the
Co-op Housing Federation of Canada, Bruce Porter of the Centre for
Equality Rights in Housing and possibly some homeless persons.
Professor David Hulchanski of the University of Toronto will be
called on Wednesday afternoon.
Our lawyer Peter Rosenthal said:
The criminal trials of six people who were either homeless
or assisting homeless people will begin on Monday, October
26, 1998 at 10:00 an in Old City Hall at Bay and Queen Sts
in Toronto.
What crimes are they accused of? Committing "forcible
entry" and "mischief" by attempting to enter and clean up
abandoned apartment buildings so that homeless people could
find temporary shelter.
The defendants will take the position that they had the
right to try to obtain shelter in the circumstances; in
particular, that the Canadian Charter of Rights and
Freedoms should be interpreted to imply that the right of
homeless persons to seek shelter take precendence over any
right an absentee landlord has to prevent others from using
his unused property.
The defendants will testify. Also, other homeless people
who were seeking shelter that day will explain why an
abandoned apartment building is better than a hostel.
Several experts on housing issues and on health problems
of the homeless will provide evidence that homelessness is
a danger to liberty, security of the person, and to life
itself.
It is anticipated that the trials will continue through
Thursday, October 29 from about 10:00 am to 4:00 pm each
day (with a break each day from 1 to 2)
Your attendance at the trials will support the defendants
and the rights of homeless persons to shelter.
OCAP's lawyers, Bob Kellerman and Peter Rosenthal prepared the
following Outline of Argument:
PART I: The Application
1. This is an application pursuant to section 24(1) of the
Charter for a dismissal of criminal charges against the
applicants.
PART II: The Facts
It is anticipated that viva voce evidence will establish:
2. The buildings at 88 and 90 Carleton Street in Toronto are
apartment buildings that have been unoccupied for several
years, since the present owners evicted the previous
tenants. The buildings have not been put to any use
during this period. There has been no work on the
property for any other use.
3. There are a number of homeless people in Toronto for whom
no suitable housing is available, including some of those
who attempted to enter the buildings at the relevant times.
4. On April 19,1997, several homeless people attempted to
enter the vacant premises at 88 and 90 Carleton Street in
order to provide shelter for themselves. Other members
and supporters of the Ontario Coalition Against Poverty
accompanied the homeless persons to assist them in
establishing shelter in the premises. The homeless persons
and those assisting them were prevented from entering by
members of the Metropolitan Toronto Police Force. The
applicants were arrested and charged with contravening
certain provisions of the Criminal Code.
5. Being homeless creates serious dangers to physical and
mental health, and to life itself.
6. Canada has failed to fulfill its obligations under
international treaties to provide adequate housing for
all its residents.
PART III: Issues and Law
a) Does the right to security of person within the meaning of
section 7 of the Charter include the right to adequate
housing?
7. Section 7 of the Charter provides:
Everyone has the right to life, liberty and the security of
the person and the right not to be deprived thereof except
in accordance with the principles of fundamental justice.
Canadian Charter of Rights and Freedoms, s.7.
8. Analysis of s.7 of the Charter involves two steps. To
trigger its operation there must be a finding that there
has been a deprivation of the right to life, liberty and the
security of the person and, secondly, that the deprivation
is contrary to the principles of fundmental justice.
R v. Beare (1988), 55 D.L.R. (4TH) 481 at 492 (S.C.C.)
9. Life, liberty and the security of the person are independent
interests, which must be given independent significance by
the Court in the present case, each of the three interests
are affected.
R v. Morgentaler (1988) 44 D.L.R. (4th) 385 at 398 (S.C.C.)
Re Singh and Minister of Employment and Immigration (1985)
17 D.L.R. (4th) 422 at 458-459 (S.C.C.)
10. The concepts of "life", "liberty" and "security of person"
are capable of a wide range of meaning. Their interpretation
should be "generous rather than a legalistic one."
R v. Big M Drug Mart (1985), 18 D.L.R. (4th) 321 at 360
(S.C.C.)
Re Singh and Minister of Employment and Immigration (1985)
17 D.L.R. (4th) 422 at 458 (S.C.C.)
11. Section 7 of the Charter should be interpreted in conformity
with Canada's international obligations.
Slaight Communications Inc v. Davidson (1989). 59 D.L.R.
(4th) 416 at 427-428 (S.C.C.)
12. The Charter should generally be presumed to provide
protection
as least as great as that afforded by similar provisions in
international human rights documents which Canada has ratified.
Re Public Service Employees Relations Act (1987), 38 D.L.R.
(4th) 161 at 185 (S.C.C.)
13. Article 25(1) of the Universal Declaration of Human Rights
provides:
Everyone has the right to a standard of living adequate for
the health and well-being of himself and his family, including
food, clothing, housing and medical care and necessary social
services, and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or
other lack of livelyhood in circumstances beyond his control.
14. Article 11(1) of the Covenant on Economic, Social and
Cultural
Rights provides that:
The states parties to the present covenant recognize the right
of everyone to an adequate standard of living for himself and
his family, including adequate food, clothing and housing, and
to the continuous improvement of living conditions. The states
parties will take appropriate steps to ensure the realization
of this right, recognizing to this effect the essential
importance of international co-operation based on free consent.
15. "Security of the person" includes freedom from the threat of
physical punishment or suffering, and protects both the
physical and psychological integrity of each individual.
Psychological trauma can take the form of stigmatization,
stress and anxiety resulting from a multitude of factors.
More generally, section 7 protects against interference with
an individual's health and safety.
Re Singh and Minister of Employment and Immigration (1985)
17 D.L.R. (4th) 422 at 460 (S.C.C.)
R v. Morgentaler (1988) 44 D.L.R. (4th) 385 at 399-400 (S.C.C.)
Everingham v. Ontario (1993) 100 D.L.R. (4th) 199 at 210
(Ont. Ct. Gen. Div)
16. Although "property" was intentionally excluded from s.7 of
the
Charter, "this is not to declare... that no right with an
economic component can fall within "security of the person".
While a corporation's economic rights find no protection in
section 7, economic rights of individuals fundamental to
human life or survival may come within section 7.
Irwin Toy Ltd v. Quebec (1989), 58 D.L.R. (4th) 577 at 633
(S.C.C.)
Schaff v. Canada (1993), 18 C.P.R. (2d) 143 at 165 (T.C.C.)
17. It is therefore respectfully submitted that the right to
adequate shelter is a component of the right to life and the
security of the person within the meaning of section 7 of the
Charter. It is further submitted that this right to adequate
shelter takes precedence over any property rights of the
owner of an unused building as any such property right is not
constitutionaly protected.
b) Does "liberty" within the meaning of section 7 of the Charter
include the right to seek shelter in the circumstance of this
case?
18. It is submitted that, whether or not there is a positive
obligation on government to provide adequate housing,
"liberty" within section 7 of the Charter includes the
right of homeless persons to seek shelter in abandoned
buildings.
c) Is it in accordance with the principles of fundamental justice
for police officers to prevent homeless persons from obtaining
shelter in the circumstances of this case?
19. Principles of fundamental justice include not only procedural
considerations, but also substantive ones.
Rodriguez v. B.C.(A.G.)(1993), 107 D.L.R. (4th) 342 at 392
(S.C.C.)
20. Principles of fundamental justice are those upon which there
is some consensus that they are fundamental or vital to our
social notion of justice. They must be capable of being
identified with some precision and applied to situations in
a manner which yields an understandable result.
Rodriguez v. B.C.(A.G.)(1993), 107 D.L.R. (4th) 342 at 393
(S.C.C.)
21. In arriving at its understanding of these principles, the
Court must balance the interests of the state and the
individual. Fundmental justice requires that a fair balance
be struck between these interests, both substantively and
procedurally.
Rodriguez v. B.C.(A.G.)(1993), 107 D.L.R. (4th) 342 at 394
(S.C.C.)
22. It is respectfully submitted that balancing the interests
in the present case in accordance with the principles of
fundamental justice requires that the state not deny
homeless persons rights to seek shelter in privately owned
premises when the owner is not using or developing the
premises.
PART IV: Order Requested
23. It is respectfully requested that the charges against the
Applicants be dismissed.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Dated at Toronto the 8th day of October, 1998
J. Robert Kellerman
Peter Rosenthal
Counsel for the Applicants
....................................................
For more information call the Ontario Coalition Against Poverty
(OCAP) at 416-925-6939 or fax (if it is working) 416-925-9681
or email bobolsen@aracnet.net Subject: OCAP
http://www.interlog.com/~cjazz/tasc.htm#5
Bob Olsen Toronto bobolsen@aracnet.net (:-)
............................................................