Creating A Positive Out of A Negative

Today, we will journey from yesterday's Peace Camp to Victoria's Tent City and discuss the legal implications of protecting positive rights through the Charter.

Our Charter is generally a negative rights document protecting mostly civil and political rights. To protect these rights, the government is required to refrain from action, essentially to leave us, the right-holders, alone to enjoy rights such as freedom of religion (s.2(a)) and freedom of expression (s.2(a)).

The idea of positive rights in the human rights context is more problematic. These rights require the government to take action, to fulfill our entitlement to rights. They are typically socio-economic in nature and cover a wide array of social welfare issues such as the right to education or the right to health care. 

Traditionally, our Courts have been reluctant to find positive rights protection in the Charter : this would require the non-elected judiciary to step into the political fray by creating public policy. Despite this cautious approach, as Dylan would say (that's Bob, not Thomas), "the times they are a changin'." An example of this judicial trend into the positive rights arena, is the Supreme Court of Canada decision in the Chaouilli case, where Quebec legislation limiting timely access to health care was found to violate s.7 rights under the Charter.

Recently, further forays into the positive rights territory has produced interesting results. The 2009 Adams case, a particularly unique case from the British Columbia Court of Appeal (BCCA), highlights the lengths the Court will go to protect basic human rights, such as shelter. At the time of Adams, the City of Victoria was experiencing a severe shortage of shelter beds for the City's numerous homeless, resulting in a Tent City erected in a local public park. The Tent City housed 70 homeless people by the time the City of Victoria started legal steps to evict the people through the authority of the municipal bylaw. 

In a bold decision, the BCCA found the bylaw was overly broad and deprived the homeless people of their right to life, liberty and security of the person under s. 7 of the Charter by prohibiting the assembly of temporary overnight shelters by the homeless, who had no alternative accommodations. To require them to leave would negatively impact their personal integrity and diminish greatly their human dignity and self-worth.

As a result, the Court crafted a highly ingenious and singular remedy declaring the legislation inoperative when the number of homeless people exceeded the number of shelter beds available. The Court was sending a clear message to the City of Victoria: provide or accept the consequences.

The interesting aspect of this positive rights movement is how grounded it is in the basic minimal needs one requires in order to live; water, food, and shelter. And yet considering the origins, why is this such a unique foray? If indeed these rights are so basic, why are they not already "covered" by the Charter?

Perhaps the answer lies at the beginning of this post; with the meaning of positive rights. The government must act to fulfill these basic rights, which means big government spending big money. Not such a popular notion in a weakened economy. Another reason may be more subtle and may be found in the historical framework of our liberal democracy itself as epitomized by the laissez-faire or "hands off" government policies of the economist Adam Smith.

For whatever reason, it is clear the Courts have become more positive about our rights, which proves a positive can be created out of a negative.

Part Two: Occupying Public Space

Yesterday, I outlined the tension between the City and the Occupy movement over the tent city erected in the City's public spaces. Although, municipal legislation prohibts the camp, it has, to this date, not been enforced. Why? Initially, no doubt, the thought was occupy Calgary would make their point and move on. No "strong arm of the law," means no trouble. Unfortunately, that tactic has proven to be wrong. The Occupy movement has no plans to move their campsite, even in the face of declining public support (petitions) and despite alternative offers of living space. It appears a Western style show-down is inevitable and the only question is how soon before the matter is before the Courts. 

What would happen if the matter did go before the Courts? Two cases, involving protest in two very different Canadian Cities, may help answer this question.

First we go to Ottawa. It is 1994 and a Peace Camp, to protest cruise missile testing, is erected on the lawn of the Parliament building. Indeed, the protesters had a presence, in one form or another, in front of Parliament since 1983. An attempt to dismantle the camp led to various court actions. At the heart of the debate was the expressive quality of the protest: if the Peace Camp attempted to convey or did convey a meaning, then, Weisfeld the leader of the protest, could argue an infringement of s. 2(b) of the Charter, freedom of expression.

The Federal Court of Appeal agreed with Weisfeld: the structure, and the presence of other accouterments of the protest (brochures, pamphlets, signs, and the like), indicated there was a meaning conveyed by the Peace Camp itself. However, as discussed yesterday, the decision does not rest on a violation. An infringement of a right still requires a further analysis based on s. 1 of the Charter. Is this violation justified in a free and democratic society? Enter, the government to establish that indeed, it is, or the legislation restricting the right is invalid. The end result in Ottawa was a save by the government. On the s.1 analysis the removal of Weisfeld was justified. Exit the Peace Camp.

Fast forward fifteen years to Vancouver where the Falun Gong erected banners and a "make-shift shelter" in front of the Chinese Consulate, contrary to a City By-law. The City sought an injunction to remove the protest, which was granted. The Falun Gong appealed to the British Columbia Court of Appeal.

Following Weisfeld, the Court agreed there was a violation of s.2(b) as the structures had expressive content being "part and parcel" of the Falun Gong protest. That is where the similarities end. The BCCA did not find the bylaw saved under the s.1 analysis. In the Court's view, the prohibition did not minimally impair the legitimate right to engage in political protest; a cherished Charter value residing at the very core of our democracy. In a word, the by-law was over broad and captured legitimate forms of expression.

After that Canada-wide tour, we are now back in Calgary. What conclusions can we draw based on these other cases? Clearly, the occupy protest has an expressive quality which is protected by s.2(b) of the Charter. However, whether the City ordinance will be a justifiable intrusion on that right is questionable and dependent on a number of factors, including the type of evidence the municipality will proffer to justify the legislation.

Whatever the outcome, this much is clear, the protesters are here to stay for the near future. Indeed, no Canadian City has successfully evicted the movement. In the end, when the dust is settled and the shoot-out is over, this gun-fight might just be a draw.