Halifax violated the right to housing through their secrecy about August 18 eviction

Halifax chose to keep housing service providers and supporters in the dark about their planned eviction of homeless encampments, creating a false dichotomy of security versus ensuring housing needs were met. By doing this, they clearly violated the right to adequate housing as it relates to homeless encampments in Canada, as covered in the National Protocol on Homeless Encampments in Canada. I will elaborate on this below.

News this past week revealed that the office of Halifax’s Chief Administrative Officer, Jacques Dubé, decided to keep the exact date that the city planned their eviction of homeless encampments confidential. That date turned out to be August 18, which was by accounts of observers there, including myself, a violent clearing of the encampments and those defending them by Halifax Regional Police. Over 24 people were arrested for defending the rights of those staying in the encampments. As has gone public, I am representing 18 of those arrested on criminal charges stemming from standing up for the right to housing.

Keeping the exact date of the inevitably violent eviction secret was part of the City’s plan. Internal emails obtained by CBC through access to information requests revealed that Dubé emailed the Mayor’s Chief of staff Shaune MacKinlay, saying, “we made a conscious decision to not telegraph our operation to those agencies given the serious risks of doing so.” The concern was that telegraphing the removal date would have brought out protests. If the concern  was protests — understandable and expected in evictions during a homelessness and housing crisis — then meaningful attempts to ensure the rights of those living in the encampments were sacrificed to try and make a clearer path to removal.

The National Protocol states:

International human rights law does not permit governments to destroy peoples’ homes, even if those homes are made of improvised materials and established without legal authority. Governments may not remove residents from encampments without meaningfully engaging with them and identifying alternative places to live that are acceptable to them. Any such removal from their homes or from the land which they occupy, without the provision of appropriate forms of legal protection, is defined as a ‘forced eviction’ and is considered a gross violation of human rights. The removal of residents’ private property without their knowledge and consent is also strictly prohibited.

The basis for the Protocol is the International Covenant on Economic, Social and Cultural Rights, signed by Canada in 1976; General Comment No. 7 on forced evictions; as well as the National Housing Strategy Act brought into force in 2019. The Covenant and General Comment create a right to housing and protection against forced evictions. The national legislation introduces the rights into national law.

The above-noted CBC piece included comments from Dalhousie Legal Aid Society’s Community Legal Worker, Mark Culligan, who has been providing support to those in the encampments:

The city has said consistently that housing or hotels had been offered repeatedly to the people living in parks in the months and weeks leading up to the eviction, as well as on the day itself. But Culligan said when he spoke to people living at the sites, they told him they had “been given no actual offer of a place to stay.”

Sherri Lecker, the Executive Director of Adsum for Women and Children was left scrambling as a result of the City’s surprise eviction. As the CBC piece noted:

Lecker was rushing around the city trying to find housing for people who were displaced. Hotels were mostly full of tourists and shelters had few beds. 

“I remember one person didn’t have ID,” she said of a group of people she met that afternoon. “They didn’t have phones. They didn’t know who to connect with. Where were they going to go? What should they do?” 

If Lecker, the executive director of Adsum for Women and Children, a Halifax-based organization that helps find safe housing for hundreds of people every year, had known the removal was coming that day, she said she might have been able to do more to help those living at the sites.

Clearly, housing was not the priority of the day on August 18. The plan was to charge ahead with the eviction.

The Coast also reported on internal correspondence between City officials they obtained.  The basis for rushing towards removal of encampments was laid out in an August 3rd memo from Dubé to councilors. In part, the reasoning was:

“To mitigate public health and safety risks, as well as liability concerns for the municipality, we need act [sic] soon.”

The Coast piece also noted that Dubé sent an email to Councilors on August 16 to give prepackaged responses for them to reply to concerned constituents. It included this very problematic suggestion:

“Is this a violation of the tent occupants’ Section 7 Charter rights?” (answer: given the support and options being made available to occupants of homeless encampments by the province, the actions taken by the municipality are legally defensible and will not serve to deprive these individuals of their Section 7 Charter rights).”

The Section 7 Charter rights Dubé is talking about are supposed to protect people from state actions that deprive them of “life, liberty and the security of the person”, which can all be applied to the right to housing. The right to life could apply because exposure to the elements without protection could risk life; liberty applies to the choice to survive by setting up shelters of tents in a park; security of the person is the right to bodily integrity and the right to not be subjected to state actions that impose psychological distress, which can apply to encampments as they offer protection and some minimal level of privacy.

Dubé’s statement about section 7 rights not being deprived — and thereby suggesting there is no violation of the right to housing — is off the mark in the face of events that actually unfolded.  Since housing support workers and service providers were left in the dark, they were not able to help at least attempt to find adequate alternatives, which inevitably leads to section 7 deprivations. There was no place for the homeless to go, save a few. No meaningful attempt at consultation with the homeless was made, which the Protocol made clear is supposed to happen to avoid a violation of the right to housing. If not for the secrecy, Dubé may have at least had an argument that rights were not violated. But trying to have the cake and eat it too just doesn’t work. As far as the situation on the ground progressed, tents went back up not long after the eviction because the so-called hotel solution or other alternatives did not materialize as suggested. Currently, there is still a scramble ongoing to try and set up modular units for homeless people in Halifax, as the homelessness crisis has not abated at all. All in all, the actions taken by the City are not legally defensible on section 7 grounds

Meanwhile, most of those arrested on August 18 are still facing criminal charges due to protesting the brutal evictions on August 18th. There have been a couple of well attended events outside the Halifax Provincial Court, coinciding with their court appearances, calling for their charges to be dropped. The call for dropping charges is due to widespread concerns over the police violence deployed in clearing the encampments and protesters, as well as widespread concern that rights to housing were violated. When there is widespread concern over the legality of state and police actions underlying charges, and concerns about impunity in the face of rights violations, the public loses confidence that the justice system is abiding by the rule of law. Prosecutions that bring the administration of justice into disrepute should not proceed.

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