Everyday, bylaw officers, police officers, and other city employees confiscate and destroy the sentimental and survival belongings of people who are forced to shelter outside across North America. In Canada, people’s internationally recognized human rights are generally enshrined in the Canadian Charter. Tens of thousands of (billable) hours and hundreds of millions of dollars have been spent by governments on lawyers trying to convince old (generally white) judges that their laws are compliant with the Charter, uphold people’s human rights, and are necessary to the functioning of a liveable society. Seemingly, the discussion of general decency is generally ignored and not a consideration in the legal profession.
For my final paper in law school, I wanted to practice writing an argument that could be put in front of one of those judges that one law in one municipality that allows the confiscation and destruction of people’s belongings violates people’s Charter right to be free from cruel and unusual punishment. It was later published by the school’s student journal. If you’re super bored, you can read it here. Below is the summary of the paper:
Since the inclusion of section 12 in the Canadian Charter of Rights and Freedoms (the “Charter”), much has been written about cruel and unusual punishment. However, relatively little attention has been paid to the issue of cruel and unusual treatment. As society becomes increasingly regulated and individuals interact with government through administrative bodies with broad discretion, clearer protections against cruel and unusual treatment are necessary to fully realize the intent of the Charter right. Over the past two decades, the City of Victoria has progressively restricted the use of public spaces by individuals experiencing homelessness. While these restrictions have been challenged under various Charter provisions, section 12 has rarely been considered. The 2023 amendments to the City of Victoria’s public space bylaws offer a timely opportunity to consider the application of section 12 in the context of non-punitive administrative decisions that amount to government treatment. Although the test for cruel and unusual treatment requires further clarification, Victoria’s bylaw scheme underscores the need for section 12 analyses to more explicitly address government treatment, or risk neglecting the Charter’s dignity-centred focus.
Balls of Rice 