Barriers to Justice Faced by the Homeless

Access to justice means different things depending on who is discussing it (more information here). For homeless populations, it encompasses not only the ability to enforce one’s rights, but the need to safeguard basic human dignity. The homeless must face the hurdles already plaguing Alberta’s low and middle income families (discussed here) plus many more, owing to their marginalized status and complex needs. Courtroom initiatives have made some headway, but have encountered significant roadblocks as well. Any successful strategy to increase access to justice for the homeless must engage multiple stakeholders and the various organizations dedicated to serving Alberta’s homeless.

Homeless populations are among the most marginalized and vulnerable persons in our society. Their needs are complex and distinct not only from the rest of the community, but each other.  It is difficult to make broad generalizations about a group of people who sometimes have little in common other than their lack of housing (Stephen Gaetz, Street Justice: Homeless Youth and Access to Justice (Toronto: Justice for Children and Youth, 2002) [Gaetz] at 10). With that caution in place, some recurring barriers to justice have been identified as plaguing the homeless.  The examination below discusses the many barriers homeless persons face when attempting to access justice.

Criminalization of Homelessness

For many people, encountering homelessness is an unsightly and unpleasant experience. Indeed, homelessness is an uncomfortable reminder of the holes in our society’s safety net. 

The basic comforts taken for granted by the broader community – a place to sleep, eat, and the ability to care for basic hygiene needs – often elude the homeless. These factors interact with misconceptions about the reasons for homelessness, and the resources available to meet their needs. This misunderstanding can breed hostility among other segments of the community (see generally (Jeremy Waldron, “Homelessness and Community”,  (2000) 50 U Toronto LJ 371 [Homelessness and Community]).

In response to this outcry, too often municipalities view the “homeless problem” as one of visibility. Efforts are focused on treating the effects of homelessness, rather than its causes.  Bylaws ostensibly aimed at maintaining the public peace are often nothing more than attempts to criminalize the unavoidable incidents of homelessness. Bans on sitting or sleeping on sidewalks, erecting nighttime shelters, public urination, spitting, swearing, or panhandling may appear neutral on their face, but they are often directly targeted at criminalizing the homeless. When we criminalize behaviors that homeless persons cannot reasonably avoid (for example, sleeping outside) we are effectively denying their ability to legally exist in any space (Jeremy Waldron, “Homelessness and the Issue of Freedom”, (1992) 39 UCLA L Rev 295 [Issues of Freedom]). They spend their lives in a state of illegality, being moved from one location to another.

This criminalization interacts with the rights at the core of our constitution. Many of the rights guaranteed to all Canadians (for example, the right to vote, equal treatment before and under the law, and free speech) are premised on the underlying assumption that we all have a place to exercise them. These rights mean little for persons who are engaged in a never ending struggle to find a place to exist (Issues of Freedom at 303).

On a more practical note, bylaws that criminalize homelessness drive homeless persons into further isolation. Inevitably, they end up in the dark corners of municipalities where they are less likely to be targeted by police, but at significantly higher risk of being victimized by crime (Gaetz at 52).

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Interactions with Police

Homeless persons often feel targeted and bullied by law enforcement (Gaetz at 71-75). A homeless person interacts with the police much more often than other community members.  They are often viewed as frequent perpetrators of crime. This perception is not entirely baseless. Given the bylaws that target homelessness, and the fact that homeless persons often rely on quasi-legal or illegal income generating ventures (drug dealing, prostitution), the homeless do run up against the law more often than housed Albertans. These laws and behaviors make homeless persons frequent targets of police attention.

However, while we accept the characterization of homeless persons as perpetrators of crime, we less often consider how often they are victimized by criminal activity. In 2002, a study was conducted in Toronto on their youth homeless population. That report indicated that 81% of persons interviewed were victimized by crime over the past 12 months. The crimes were often related to theft or assault  (Gaetz at 51-54). These victims, who deal with the police on a fairly regular basis, were extremely unlikely to report the incident to police. In their view, police officers are either unable or unwilling to assist them in obtaining redress. These victims feel a profound inability to access justice (Gaetz at 57).

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Interactions with Other Government Entities

Aside from the police, homeless persons also interact with government services much more often than most Albertans. Many homeless persons encounter various housing agencies, food shelters, and children’s aid in their life time. As an example, a high percentage of homeless persons come from a background in foster care and/or group homes. They deal with social services as children, and unfortunately, they encounter the same entities as young parents (Gaetz at 37-41).

There are a number of significant barriers the homeless face when dealing with these entities. Indeed, these organizations are difficult to navigate for any person. Responding to a children’s aid apprehension process is particularly difficult for a person when they spend most of their days focused on obtaining food and shelter. Attending a hearing, which is stressful for anyone, is further impeded when a person lacks money, a home, an alarm clock, a method of transportation, or formal identification.

A lack of formal identification is often the most frustrating barrier homeless persons face. Many private and public organizations exist to assist the homeless. However, it is very difficult to access these services without formal ID. Obtaining official identification may seem like a relatively simple task for many Albertans. It is very hard to obtain an ID if you do not have a fixed address or prior record of documentation.

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Civil Justice Issues

Homeless persons are not only victimized in criminal matters. They encounter significant barriers in nearly every area they encounter the law.

To take one example, if an average Albertan is treated unfairly at work, they have redress to employment standards, a grievance system (if unionized), the human rights commission, or possibly the courts. When a homeless person works, it is often in illegal or quasi-legal positions without any avenue of redress or expectation of fairness.

When they engage in legal employment, it is often on the fringes of the formal economy. Most often the work is short term, and they are paid in cash, under the table. They are frequently at the mercy unscrupulous employers. Consequently, many homeless persons reported that they were underpaid, or not paid at all, for the work they completed. Others reported that being paid in cash made them targets for theft (Gaetz at 29-36).

When treated unfairly, practically speaking, homeless persons have no avenue to remedy their unfair treatment. Even when they do, most homeless opt not to pursue their claims. Aside from lacking some of the skills and know-how for accessing these services, there is a widespread view that their efforts will be fruitless and create more trouble down the road.

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Immigration Issues

A growing and disturbing number of homeless persons are new immigrants or refugees to our country. Even with a stable place to live, navigating Canada’s immigration and refugee scheme is difficult. Homeless refugees have very specialized legal and social needs to be met. In addition to the significant barriers faced by all immigrants, these homeless persons often encounter language barriers and racism on the streets (Gaetz at 43-46).

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On a broader basis, homeless persons face barriers to justice because of the negative perceptions held by other community members. Indeed, when speaking about “public safety” and “community interests” municipalities often treat homeless persons as though they separate from the “public” or “community” they serve, rather than a part of it.

Homeless persons often have complex needs. While not universal, it is naïve to ignore the fact that many of the homeless struggle with mental health and/or substance abuse issues, and can be uncomfortable or even disruptive to encounter. With that said, the homeless are human beings who are a part of our community (Homelessness and Community at 404-405; Sarah Buhler, “Cardboard Boxes and Invisible Fences: Homelessness and Public Space in City of Victoria v Adams” (2009) 27 Windsor YB Access Just 209 at 216-217 [Buhler]). Their state of homelessness is often a result of policy decisions on the allocation of taxpayer funds, and our often underfunded complex patchwork of social safety nets (Homelessness and Community at 384). The view that the homeless are responsible for their own circumstances and therefore unworthy of treatment is not only unhelpful, it is inaccurate.

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The Potential (And Pitfalls) of a Court-Based Approach

The barriers outlined above raise complex legal and social issues. Court cases and legislative reforms undoubtedly have a role to play in addressing these barriers. However, while some court battles have improved justice for the homeless, the law itself has erected some significant hurdles that are difficult for the homeless and anti-poverty advocates to meet. The paragraphs below outline the current law on accessing justice for the homeless, and some of the problems inherent in relying too heavily on the courts.

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The homeless Person in Court

A homeless person is extremely unlikely to report an injustice they experience, much less take a personal grievance to Court. In addition to the financial barriers effecting low and middle income Albertans, homeless persons have additional and often insurmountable barriers.

In the criminal sphere, rightly or wrongly, most homeless persons feel harassed and bullied by law enforcement (Gaetz at 71-75). They do not trust the police will take them seriously or investigate their case. They are worried that reporting a crime will cause them more trouble down the road. They often lack an address or phone number to be contacted for follow up. If the homeless person was engaged in criminal activity when victimized, they are particularly unlikely to report the offence. A criminal case that is not reported cannot be decided by a Court.

Outside the criminal sphere, the financial burdens are often prohibitive. It is not cheap to prepare, copy, file and serve court documents.  A homeless person often does not have the additional resources to undertake these tasks. They also often lack an address for service, which is a necessity to start a court action. Even with the assistance of programs like Legal Aid, or entities that do not require funds, a homeless person is very unlikely to attempt to enforce their rights. They either lack knowledge, know-how, or faith that these systems will work for them.

Matters that may seem small to us (the ability to show up for a court date at a specific time) may seem easy to a person with a home and an income. This is significantly less simple for someone who has no mode of transportation, bed to sleep in, or funds. Lawyers who represent the homeless often report having a difficult time receiving instructions or communicating with persons who do not have a fixed address or telephone. Furthermore, many homeless persons are often unfortunately hindered by complex needs such as mental health issues or substance abuse.

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Advocating for Homeless Rights

Homeless persons and anti-poverty groups have advanced several court cases in an attempt to redress harmful government policies that impact the homeless. Cases that challenge government action trigger the Canadian Charter of Rights and Freedoms.  Most often, these homeless or anti-poverty cases fall under sections 7 (the guarantee to life, liberty and security of the person) and 15 (the equality guarantee) of the Charter.

These anti-poverty lawsuits have had mixed success. While there have been some important wins, there have also been some heavy losses. The high profile cases discussed below dictate how lower courts will approach poverty and homelessness on a go-forward basis. They also highlight the limits of what a court-based advocacy approach can accomplish.  

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Section 7

There are several important section 7 cases for homeless persons. Section 7 has many thresholds and limitations that must be satisfied before it can be successfully relied on (read more about section 7 here). Several of these restrictions are relevant to anti-poverty court cases. For example:

  • Section 7 is characterized as a “negative” right. This means that it only protects people from state interventions. It does not create an obligation on the government to act in a certain way (Gosselin c. Québec (Procureur général), 2002 SCC 84 at para 81).
  • In order to succeed, a claimant must show that the state deprivation fails to accord with the “principles of fundamental justice”. While this list is not closed, Courts are reluctant to recognize new principles under this heading. Practically speaking, to satisfy this requirement a claimant must show that a law is vague, overbroad, arbitrary, or grossly disproportionate (Linda McKay-Panos and Kristyn Stevens, No Place to Sleep: The Right to Housing in Canada, 2nd ed (Calgary: Alberta Civil Liberties Research Centre, 2013) at 92,93 [McKay-Panos]).
  • Section 7 protects life, liberty and security of the person. It does not protect property rights. Opponents of anti-poverty lawsuits argue that homeless people are attempting to use section 7 to advance something akin to a property right (Peter W. Hogg, Constitutional Law of Canada: 2013 Student Edition, (Toronto: Thomson Reuters Canada Limited, 2013) at 47.9 [Hogg]); see, for example, Victoria (City of) v Adams, 2009 BCCA 563 at paras 98-101 [Victoria v Adams]).
  • Like all other Charter provisions, a claimant must point to a specific government law, policy or action in order to succeed. It is very difficult to advance a broad claim alleging that a general attitude and approach taken by the government infringes section 7 (Tanudjaja v Canada (Attorney General) and Ontario (Attorney General), 2014 ONCA 852 at para 32 [Tanudjaja ONCA]).

Victoria v Adams is one of the most notable successes in homeless litigation. This decision dealt with a municipal bylaw that prohibited persons from erecting overnight shelters in public parks. While ostensibly this applied to everyone, the bylaw was clearly targeted at the “tent cities” of homeless persons sleeping in Victoria’s parks (Buhler at 211).

The British Columbia Court of Appeal held that the bylaw infringed section 7 of the Charter because:

  • it deprived people of their life and security of the person  (people can die when sleeping outside without adequate protection); and
  • the bylaw was overbroad and therefore, not in accordance with the principles of fundamental justice (less invasive options would be available to accomplish its societal interests) (Victoria v Adams at paras 102-110, 116).

Victoria v Adams was an important victory for anti-poverty advocates. It recognized that, while governments don’t necessarily create the state of homelessness, they cannot legislate in a way that is indifferent to homeless persons’ Charter rights. It also emphasized that, just because a case involves publicly owned property, it does not make the case about property rights.

Canada (Attorney General) v PHS Community Services Society, 2011 3 SCR 134 [PHS] is another important section 7 decision. It held that the Minister of Health had to comply with the Charter when making a decision that would effectively close a safe injection site. Closing the site triggered the section 7 rights of many marginalized (and often homeless) persons. The harm to these people would be grossly disproportionate to any goal the government sought to advance. Therefore, it was not in accordance with the principles of fundamental justice.

Victoria v Adams and PHS provided some helpful -- and at times challenging -- indicators on how to launch a successful section 7 anti-poverty case in the future. Both decisions were heavily guided by expert and social science evidence. In addition, these cases largely succeeded because there was a positive state-action (the bylaw prohibiting shelters and the Minister’s decision) the Court could point to. These decisions reemphasized that section 7 can (thus far) only be used to strike down government action, and not chastise government inaction (see, Catherine Boies Parker, “Update on Section 7: How the Other Half is Fighting to Stay Warm” (2010) 23 Can J Admin L & Prac 165).

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Section 15

Several cases have argued that the treatment of homeless persons violates the equality guarantee in the Charter. These cases have struggled in large part because the test for section 15 is a moving target (see generally: Jennifer Koshan and Jonnette Watson Hamilton, “The Continual Reinvention of Section 15 of the Charter” (2013), 64 UNB LJ 19; McKay-Panos at 97-101). The Supreme Court of Canada has re-articulated and reformulated the test for a successful section 15 case several times. This shifting ground has made progress slow and difficult for any anti-discrimination advocate, including homeless advocacy groups.

With the test for section 15 as currently formulated, the major obstacles for anti-poverty advocates to overcome are as follows:

  • Analogous Grounds: In order to establish a claim of discrimination, a claimant must show that they face discrimination on an enumerated (listed) or analogous ground. Neither poverty nor homelessness is an enumerated ground. Poverty and homelessness have encountered difficulty being established as analogous ground because they are not ‘immutable’ (unchanging) (McKay-Panos at. 107, citing Toussaint v Canada (Minister of Citizenship and Immigration) 2009 FC 873 at paras 75-77).
  • The meaning of discrimination: The Supreme Court looks at discrimination through the lens of perpetuating stereotyping and prejudice. Equality advocates argue that this narrow view ignores the other harms that flow from discrimination, such as the denial of basic goods, which would assist a poverty or homelessness based claim (McKay-Panos at 99).  

No discussion about poverty advocacy is complete without considering Gosselin v Quebec (Attorney General), 2002 SCC 84 [Gosselin]. Gosselin is a significant hurdle to overcome when considering a section 15 action based on homelessness or poverty. While the decision is not about homelessness, per se, it is about poverty and social assistance.  The claimant herself lacked a fixed address for several years, so aspects of homelessness infuse the decision.

The case itself was a challenge to a social assistance law that decreased social assistance by 2/3 for persons who were under 30. Ms. Gosselin argued that the threshold violated her section 15 and 7 Charter rights. Her appeal was viewed as a test case for the notion that there should be a guaranteed minimum level of social assistance available to Canadians as a human right.

In a close and very split decision, Ms. Gosselin lost her case. The Supreme Court concluded that there was no discrimination and rejected her claim. This loss does not foreclose future anti-poverty cases, but it dealt a significant blow to homeless and anti-poverty advocates. Gosselin entrenched the notion that section 7 and 15 rights are “negative”, and they do not force the government to take positive action (Gosselin at para 81, but see para 83). It also reinforced the narrow view of discrimination as one that must be linked to “stereotyping”  (Gosselin at paras 35, 38). Finally, its discussion of section 15 was scattered among many judges, and failed to provide any certainty on the test that would be applied going forward (for more discussion on Gosselin, see McKay-Panos at 122-127).

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The Future of Court Based Challenges: Tanudjaja v Canada (Attorney General)

The above sections highlight many of the hurdles imposed on anti-poverty lawsuits as a result of the history of section 7 and 15 cases. Instead of tip toeing around these barriers forever, one exciting case is directly challenging these traditional guidelinesTanudjaja ONCA is a case alleging that Canada and Ontario’s overall approach to low-income housing violate sections 7 and 15 of the Charter. It challenges the status quo of section 15 and section 7 litigation in several important ways:

  •  The claim does not allege that one piece of legislation was unconstitutional. Rather, it is based on the federal and provincial government’s overall approach to homelessness;
  • The claim does not restrict itself to traditionally conceived “negative” rights. It challenges negative rights and alleges positive duties;
  • The claim does not shy away from the dichotomy between policy decisions and specific laws or actions that have been put in place.

Given its novel approach, it is perhaps unsurprising that both the Ontario Superior Court of Justice and the Ontario Court of Appeal struck the claim on the basis that it was not justiciable (see: Tanudjaja ONCA, and Tanudjaja v Canada (Attorney General), 2013 ONSC 5410). What is surprising is the strongly worded dissent from Court of Appeal Justice Feldman that would have let the claim continue (Tanudjaja ONCA at paras 40-89).

The applicants in Tanudjaja ONCA have sought leave to leave to appeal to argue their case before the Supreme Court of Canada. This is an exciting prospect – if granted, Canada’s highest court will being given the opportunity to revisit some of its more restrictive interpretations. This has massive potential to open the door to anti-poverty advocacy in the courtroom.    

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Initiatives Beyond the Courtroom

Alberta has a number of governmental and private entities dedicated to advancing the quality of life and access to justice for the homeless. Some of the most notable and promising efforts are outlined below.

Access to Government Identification

One of the most pervasive and frustrating barriers to justice faced by the homeless revolves around their lack of formal identification. In recognition of this fact, a branch of the Ministry of Human Services has developed an alternative strategy to permit homeless persons alternative means to acquire government ID Alberta (Homeless Initiatives Program Policy, ID for the Homeless Training Manual (Integrating Branch, Ministry of Human Services, September 2014)) [ID Training Manual].  This strategy addresses the two criteria a person needs to acquire Alberta identification:

  • address authorization; and
  • identity authorization.

Now, alternative measures exist for homeless persons to meet these conditions.  For example, a homeless person can use a shelter’s address to satisfy the first criteria.

In terms of identity certification, expired and photo-copied documents can now be accepted as part of the identity verification process. In addition, a broader range of documents can be used to verify a person’s identity (for example, hospital records or records of incarceration). And lastly, alternative channels can be used to fact check someone’s identity through a trusted record or authority figure.

The access to government identification program is not an answer to all the problems facing homelessness. Indeed, qualifications, restrictions and costs to identification still exist, which are still barriers to obtaining identification (see ID Training Manual at page 6). However, it is an important step in the right direction. Calgary Legal Guidance has lawyers who are dedicating significant time and effort assisting homeless persons to obtain identification under this rubric.  

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Housing First Strategies

Housing First is a relatively new approach to the treatment and assistance of the homeless. It is premised on the notion that a homeless person’s first and most important need is obtaining stable housing.  Rapidly placing a homeless person into a permanent housing situation is the first priority. The issues that lead to the person’s homelessness (including, for example, abuse, addiction, and mental health problems) are only addressed once stable housing is provided. This approach works in contrast to the former model, which often required certain thresholds be met before a person was considered an appropriate applicant for housing.

Advocates for Housing First are adamant that the approach yields greater outcomes. Once housing is provided, it is easier for homeless persons to access other government services, tackle root causes of homelessness, provide treatment and support, and secure personal safety. These advocates also submit that housing first saves money, because it actually costs less to provide persons with appropriate housing and support compared with them accessing emergency shelters and public systems (hospitals, jails, police, ambulances) (see Calgary Homeless Foundation’s 10-year Plan).

The Province of Alberta has adopted a Housing First strategy in its efforts to rid the province of Homelessness by 2019.

Even with all the benefits touted by Housing First, there are still significant hurdles and difficulties to overcome. Relationships between housing agencies, tenants and landlords are not always seamless. Despite touting Housing First for the past few years, many Albertans are still living on the street or in temporary shelters. 

While no program will be perfect, the housing first approach has some exciting and ground-breaking potential. In 2015, the city of Medicine Hat declared that it is on the brink of ending homelessness after adopting a housing first mindset (Annalise Klingbeil, “Medicine Hat is about to end homelessness – but then what?” Calgary Herald (April 15, 2015)). By adopting a solution-oriented approach (as opposed to one that judged the worthiness of homeless persons to receive shelter), we have the potential to make significant strides in improving the lives of Alberta’s homeless population.

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