This chapter explores the principal constitutional challenges to laws that regulate unhoused persons and public property. Municipal ordinances have been challenged on the grounds that they are unconstitutionally vague or overbroad, impose cruel and unusual punishments, violate the right to travel, or infringe the right to equality. This chapter discusses the successes and shortfalls of these challenges. Its concluding parts discuss how U.S. and Canadian courts have rejected a positive right to housing.

This chapter examines the idea of ’dialogue’ as a way of conceptualising the relationship between the courts and the legislature in a system of ’weak-form review’. Tracking the trajectory of dialogue theory in Canada and in the UK, this chapter outlines the promise and perils of dialogue. By highlighting the iterative and interactive dynamic between courts and legislatures when seeking to uphold rights, the metaphor of dialogue held out the promise that it could transcend the Manichean narrative. However, the chapter argues that the idea of dialogue overpromised and underdelivered. It failed to take us beyond the Manichean narrative and ultimately provided a misleading and distorted understanding of the constitutional relationships between the branches of government in a constitutional democracy.

The chapter identifies three rules of law which ground the general right to conscientious exemption in Canadian law. The primary source of this right is to be found in anti-discrimination statutes and the duty of reasonable accommodation that case law has read into them. This rule of law is the most extensive. It arises in each Canadian jurisdiction; it binds public and private persons; and it arises in a variety of contexts, including employment and provision of goods and services. The right to freedom of conscience and religion under the Canadian and Quebec Charters also gives rise to a general right to conscientious exemption which applies to public bodies but not to private persons. Depending on which exercise of public power is concerned (administrative action or law of general application) the legal analysis will differ. Administrative bodies’ refusal to grant an exemption cannot be unreasonable. Legislative measures cannot infringe that right disproportionately.