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Dawn Sam, 37, is homeless. She works on the street as a prostitute, and grew up in the small native community of Fort St. James, B.C.. She is seen here in Vancouver's downtown Eastside. (JOHN LEHMANN/John Lehmann/The Globe and Mail)
Dawn Sam, 37, is homeless. She works on the street as a prostitute, and grew up in the small native community of Fort St. James, B.C.. She is seen here in Vancouver's downtown Eastside. (JOHN LEHMANN/John Lehmann/The Globe and Mail)

Gary Mason

It's our duty to protect the homeless Add to ...

Should the homeless be allowed to risk their lives by sleeping outside in winter?

That is the moral question at the heart of legislation being drafted by the B.C. government that would give authorities the power to move homeless people into shelters during periods of extreme weather - whether they want to or not.

On the surface, there wouldn't seem to be much to debate. A just and civilized society wants its citizens protected. And occasionally, ensuring that happens means overriding their constitutional rights and freedoms in order to protect them from themselves.

But not everyone sees it that way.

Civil libertarians have been quick to denounce the proposed bill, which they say will turn homeless shelters into jails, and shelter staff into guards. Furthermore, they say, the legislation will prompt the homeless to begin hiding to avoid detection, putting them at even greater risk.

Lawyer David Eby, of the B.C. Civil Liberties Association, says the proposed legislation is fraught with problems that will surely invite a legal challenge. Whether we like it or not, he maintains, staying out on the streets is a homeless person's right.

But should it be, when the homeless person is putting his or her life in danger?

The sad fact is, many of the people on the street have profound mental illnesses. They don't like homeless shelters because they are not comfortable in the company of other people. Many homeless people should not be on the street, they should be in hospitals.

But they aren't.

We give police the authority to stop someone from committing suicide. Why wouldn't we give them the same power to stop someone from possibly freezing to death? That person might have mental-health issues every bit as profound as the person standing on the guard railing of a bridge we ask police to rescue. And often their problems aren't manifested in such a way that they are always obvious.

Police do have powers under the Mental Health Act to take people into custody when they are deemed a danger to themselves. But first police need to obtain a certificate from a certified mental health authority. That takes time. When a homeless person is freezing to death, time is of the essence.

The catalyst for the bill, says Rich Coleman, the B.C. minister in charge of homelessness, was the controversial death of a 47-year-old homeless woman last December. Known to police only as Tracey, the woman burned to death while trying to keep warm with a candle. She had refused three entreaties by police earlier that evening to go to shelter. And she ignored their warnings that she might freeze to death if she stayed outside.

Still, when news of Tracey's death became public, outrage abounded. How could government allow this to happen? It was a repeat of the chorus of criticism heaped on the city and the province a year earlier when a homeless man died of exposure during a sudden cold spell.

Now government wants to give authorities the power to prevent these tragedies from happening and the voices of dissent are already emerging. It can't win.

It's already been suggested that the government wants to bring in this legislation before the Olympics so police will have the authority to empty the streets of anyone in a sleeping bag. A fair enough concern, I suppose, but I don't think the B.C. government would be that stupid. The first hint of any form of this type of cleansing would ignite a time bomb of moral outrage the likes of which this government has never seen before.

It would dwarf any good created by the Games.

At the same time, the government does not want to be dealing with any headlines during the Olympics generated by the death of some poor soul who froze to death under a threadbare blanket in sub-zero temperatures. Someone who refused to take temporary sanctuary in a shelter.

The principle at the heart of this proposed legislation is rooted in powers we already give our government. One is known as parens patriae , which, translated, means parent of the nation. It is the obligation of the state to look after those unable to look after themselves.

"Do we have an obligation to the homeless that justifies having certain powers over them?" asks ethicist Margaret Somerville. "That's where we draw different lines. I think in this case you have to make sure those powers aren't abused. But I think the idea and motives behind it are right."

Wally Oppal, the former B.C. attorney-general and Appeal Court of B.C. judge, agrees.

"Sometimes preserving a constitutional right is less important that preserving someone's life."

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