the police practice of sweeping homeless people and their supporters from city parks will face a constitutional test on November 20, when defence lawyer Peter Rosenthal launches a Charter challenge in the case of Oriel Varga and Elan Ohayon.The two housing activists, who have been sleeping in Allan Gardens every Friday night for the past two years to protest the homelessness crisis, were charged with trespassing and camping unlawfully in the park on October 21, 2000. (An additional charge laid against Ohayon the same day, for assaulting police, has already been dismissed for lack of evidence.)
"I think their sleeping out in the park was done as a protest and (is) therefore protected as freedom of expression," says Rosenthal, who is also involved in an ongoing Charter challenge of the Safe Streets Act.
"For homeless people, it might be argued that their security of person under section 7 of the Charter requires them to sleep in parks as long as the government doesn't provide better shelter for them."
Section 7, which was recently invoked in an undecided Supreme Court case concerning the right to welfare payments in Quebec, has not yet been defined to include "economic" security of the person. But neither has that definition been ruled out, says Rosenthal, who notes that an earlier Supreme Court case, the "Irwin Toy case," left the question open for future judges to decide.
The matter will be heard before the Ontario court of justice in Willowdale.