> Twenty-five members of OCAP (Ontario Coalition Against Poverty)
> were charged on March 5, 1997 with tresspassing when we occupied
> a vacant apartment building in order to take shelter or support
> those needing shelter.
>
> We appear in court on March 4, 5, 6, 1998 at Old City Hall,
> Toronto.
>
> We will use section 7 of the Canadian Charter of Rights and
> Freedoms to argue that the Trespass Act cannot be enforced
> against homeless people attempting to establish residence in
> abandoned apartment buildings and also that the right to
> shelter takes precedence over any property rights of the
> owner of an unused apartment building.
>
> Some of us face more serious charges, which will be tried
> subsequent to this initial trial.
>
> (This email copy of our lawyers' outline of the legal argument
> was transcribed by OCAP from the original 6 page fax)
>
>
> .................... lawyers' outline follows ............
>
> OUTLINE OF LEGAL ARGUMENT OF OCAP THAT TRESPASS ACT CANNOT
> BE ENFORCED AGAINST HOMELESS PEOPLE ATTEMPTING TO ESTABLISH
> RESIDENCE IN ABANDONED APARTMENT BUILDINGS:
>
> The testimony of several expert witnesses and of those charged
> is expected to establish:
>
> The buildings at 88 and 90 Carleton Street in Toronto are apartment
> buildings which have been unoccupied for several years since the
> 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
> to prepare it for any other use.
>
> There are a number of homeless people in Toronto for whom no suitable
> housing is available.
>
> On March 5, 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 arrested by members of the Metropolitan
> Toronto Police Force and charged with contravening the Trespass Act.
>
> Being homeless creates serious dangers to physical and mental health,
> and to life itself.
>
> Canada has failed to fulfill its obligations under international law
> to provide adequate housing for all its residents.
>
>
> The constitutional argument against enforcing the Trespass Act in the
> circumstances involves two main issues:
>
> a) Does the right to security of the person within the meaning of
>    section 7 of the Charter include the right to adequate housing?
>
>    (Section 7 of the Charter provides:
>
>       Everyone has the right to life,  liberty and security of the
>       person and the right not to be deprived therof except in
>       accordance with the principles of fundamental justice.)
>
>       (Canadian Charter of rights and Freedoms, s.7.)
>
>
> The analysis of s.7 of the Charter involves two steps.  To trigger
> its operation there must be finding that there has been a deprivation
> of the right to life, liberty and security of the person and,
> secondly that the deprivation is contrary to the principles of
> fundamental justice.
>    (R.V. Beare (1988) 55 D.L.R. (4th) 481 at 492 (S.C.C.)
>
>
> Life, liberty and security of the person are independent interests,
> which must be given  independent significance by the Court.
> The interests affected in the current case are life and security of
> the person.
>    (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 (S.C.C.).
>
>
> The concepts of "life" and "security of the person" are capable of
> a wide range of meaning. Their interpretation should be a "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  (B.C.C.)
>
>
> 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.)
>
>
> The Charter should generally be presumed to provide protection at
> least as great as that afforded by similar provisions in
> international human rights documents which Canada has ratified.
>    (Re: Public Service Employees Relations Act (1997) 38 D.L.R.
>    (4th) 161 at 185 (S.C.C.)
>
>
> Article 25(1) of the International 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 livelihood in
>    circumstance beyond his control.
>
>
> 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.
>
>
> "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 Immigrarion (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 (S.C.C.).
>
>
> Although "property" was intentionally excluded from s. 7 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.).
>
>
> It is therefore respectfully submitted that the right to adequate
> shelter is a component of the right to life and security of the
> person within the meaning of section 7 of the Charter. It is further
> submitted that that this right to shelter takes precedence over any
> property right of the owner of an unused building as any such
> property right is not constitutionally protected.
>
>
> b) Is it in accordance with the principles of fundamental justice
>    to use the Trespass to Property Act to deny shelter in the
>    circumstances of this case?
>
>
> The 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.).
>
>
> 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 394-395
>    (S.C.C.).
>
>
> In arriving at its understanding of these principles the Court must
> balance the interests of the state and the individual. Fundamental
> 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 394-395
>    (S.C.C.).
>
>
> It is respectfully submitted that balancing the interests in the
> present case in accordance with the principles of fundamental
> justice requires that the state prefer the applicants' right to
> shelter over the property rights of the owner as long as the owner
> is not using or developing the property.
>
>
> The order requested of the court is:
>
>    It is respectfully requested that the trespassing charges
>    against the applicant's be stayed.
>
> ............................................................
>
> Bob Olsen     Toronto         [log in to unmask]   (:-)
>
>