‘Role for the law’ in setting guidelines on private property rights for unhoused people: law prof

By Ian Burns

Law360 Canada (November 20, 2023, 3:13 PM EST) -- A recent report from a number of Canadian academics is asking a question that may be on people’s minds but hasn’t been closely looked at — why is the law of private property different for you if you are on the street or don’t have a stable roof over your head?

The Belongings Matter report, which was co-authored by University of British Columbia (UBC) law professor Alexandra Flynn, is part of a multi-year investigation looking at the law surrounding the belongings of precariously housed people. Flynn said when the project began “we promised ourselves at that time that we would do something that was really practical for advocates.”

“We knew that this was an area that was under-researched — there was almost nothing written about people’s belongings, and how that affected precarity,” she said. “And in addition to the theoretical work, we really wanted to do something that would be helpful.”

Alexandra Flynn, University of British Columbia

Alexandra Flynn, University of British Columbia

The report focuses on the experiences of people whose low income has impacted their ability to obtain and maintain stable housing, thus pushing them to periods of homelessness or unstable housing arrangements that often force them to a greater reliance on public space. The report refers to this population as “precariously housed and unhoused people,” which is intended to capture the broad spectrum of housing insecurity that many people face. “Precariously housed” signals a particular legal relationship, in which a person is subject to the will or decision of others, such as an encampment on public property. The term “unhoused” is often used as a synonym for “homeless” but signals that, while a person may lack a physical structure that they can call their own, they still have a social connection with a broader community.

Municipal and provincial legislation across Canada permits government workers, landlords and governmental or non-profit housing and shelter employees to seize or destroy belongings if they are determined to be in the wrong place at the wrong time. And the report notes that precariously housed and unhoused people have few remedies available to them when their belongings are taken from them.

Flynn said the system of law is built around the idea that you get compensation for things that have value — but the belongings of people without adequate housing are typically not seen as valuable, and they are “weaving in and out of different kinds of spaces,” which means “weaving out of different kinds of legal structures.”

“There may be a recovery system for transit, but that doesn’t speak to city bylaws and structures — which might not even apply to these kinds of belongings anyway,” she said. “But if you’re an unhoused person, and you have a bunch of belongings that are taken from a transit shelter stop, how would you know if that was a city recovery system or a transit recovery system? You know, it’s hard for me to figure out, and I'm a law professor.”

According to the report, people exposed to street sweeps have expressed difficulties in recovering their belongings from municipalities — in some jurisdictions because of the immediate disposal of the seized items. And there are rarely clear, formal processes for recovering belongings when they are seized or held by public or private entities, the report noted — and the options that do exist are often inaccessible for people. When belongings are destroyed according to — or outside of — the pertinent legislation, there are few avenues available for compensation.

Processes that would allow for broader systemic changes, such as police complaints, ombudsperson complaints or Charter challenges, also present significant barriers and generally provide no tangible or immediate remedy to the initial loss of belongings, the report said. People may not have the ability or willingness to engage in the same bureaucratic systems and processes that resulted in the seizure and destruction of their belongings in the first place.

As a result, the report said that “paradigm-shifting changes” are required in the way society values property compared to how it values human beings. Flynn said proper housing for everyone would be the best solution, but obviously not one which will happen overnight.

“We spoke to people with lived experience, and they said number one what is needed is more compassion — for officials to understand what it means to have belongings taken,” she said. “There’s a role for the law in setting guidelines for officials which say these unhoused people have property rights, this is their stuff, and you have to create a system to deal with the injustice that happens when their belongings are taken.”

And Flynn also noted the case law around private property and belongings largely centres on high-value items.

“There is some mention in the jurisprudence related to tent encampments about belongings, but it’s an in-passing kind of thing — more recent cases mention belongings, but it is not centred on the issue,” she said. “It’s not about what kind of recovery is available for belongings, it’s really about people’s ability to sleep in an encampment. So, we don't really know what the courts would say about this.”

See here for more information about the Belongings Matter project.

If you have any information, story ideas or news tips for Law360 Canada please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.