In 2009, the BC Court of Appeal turned its mind to the growing issue of homelessness and clarified the scope of Charter protections for those who have no option but to spend the night on public lands. Since Victoria (City) v. Adams, 2009 BCCA 563 ("Adams"), the fact that local governments cannot prevent the homeless from building or erecting a sheltered place to sleep at night where no other option is available had almost become old news.
In the recent case of Abbotsford (City) v. Shantz, 2015 BCSC 1909 ("Shantz"), the BC Supreme Court re-visited the legal issue in Adams and granted a more expansive declaration than that granted in Adams.
The legal dispute in Shantz arose when the City of Abbotsford (the "City") applied to prevent the reconstruction of a protest camp that had been ordered vacated in 2013. That camp involved a large wooden structure and had been built after a number of homeless persons had been forcibly evicted from a former camp. By the time of the hearing, a third camp had been constructed on City lands with a population that varied from five to 20 people.
In response to the City's suit, the British Columbia/Yukon Association of Drug War Survivors ("DWS"), an organization representing homeless persons which had been given public interest standing by the court, challenged the constitutionality of the City's Consolidated Parks Bylaw, Consolidated Street and Traffic Bylaw and Good Neighbour Bylaw (the "Bylaws"). The Bylaws prohibited, amongst other things, overnight sleeping in City parks without a permit and erecting shelter in public places.
Homelessness as Set Out by the Court
In order to define the scope of Charter rights held by homeless persons, the court first turned its mind to defining homelessness. In Shantz, a number of potential definitions were before the court, from the broad notion of spiritual homelessness, as experienced by Aboriginal individuals due to separation from traditional lands, to a much narrower definition based simply on the use of public land for habitation. While Chief Justice Hinkson did not rule out the applicability of other definitions to other disputes, he ultimately adopted the definition of homelessness set out in Adams: "a person who has neither a fixed address nor a predictable safe residence to return to on a daily basis".
The City argued that sleeping outside involves a degree of choice as some individuals, those that are disinclined towards rules for instance, prefer sleeping outside over other viable options. Chief Justice Hinkson rejected that argument as overly simplistic and as ignoring realities such as poverty, drug addiction and mental illness. He reviewed the available shelter options and concluded that there were insufficient viable and accessible shelter options for all of the City's homeless persons.
However, the court also recognized the negative impact of sustained homeless encampments on the community. Chief Justice Hinkson noted that both the current and past camps were unsafe not only for the people living in them but also for the people attending there to provide services and the citizens of the City generally.
The Court's Decision
Chief Justice Hinkson dismissed a number of Charter arguments that were advanced against the Bylaws. He made it clear that the claimed right to use public space for a purpose for which it is not generally intended does not fall within the Charter section 2(c) freedom of assembly or section 2(d) freedom of association. He also clarified that homelessness is not a protected ground under the section 15 equality provision of the Charter. Finally, he determined that the "right to obtain the basic necessities of life" is not a foundational principle underlying the section 7 Charter guarantees of life, liberty and security of the person.
The Chief Justice concluded that the Bylaws unjustifiably violate homeless persons' section 7 Charter rights to life, liberty and security of the person. In particular, he found that by denying the City's homeless overnight access to public spaces without permits and by preventing them from erecting temporary shelters without permits, the Bylaws were overbroad, grossly disproportionate and not minimally impairing.
In considering the appropriate remedy, the Chief Justice stressed the need to establish a balance between the hardships caused to the homeless by frequent relocations and the unsafe conditions that are created at homeless encampments. He considered granting an order that specific park land in the City be designated for the homeless, which he indicated would provide a degree of certainty to the homeless. However, he did not do so noting that this was a legislative choice of local governments.
Ultimately, the court declared the Bylaws to be of no force and effect to the extent that "they apply to the City's homeless and prohibit sleeping or being in a park overnight or erecting a temporary shelter without permits". The declaration was limited to overnight stays between 7 p.m. and 9 a.m. Curiously, however, although Chief Justice Hinkson defined "homelessness" and ultimately concluded that the Bylaws unjustifiably violated the section 7 Charter rights of homeless persons, he did not limit his declaration to homeless persons because he regarded such a limitation as "unworkable". Practically, this appears to mean that even persons who have accessible shelter may erect temporary shelter in the City's parks between 7 p.m. to 9 a.m. without a permit from the City.
While it is too early to tell how future courts will apply the Shantz decision, it appears to have clarified the Charter right to shelter on public lands in at least two ways.
First, Shantz extended the hours during which erecting shelters could not be prohibited. In Adams, the court did not set out particular times during which overhead shelter must be permitted. Instead, the emphasis was on allowing for the creation of a safe place to sleep at night, and the City of Victoria responded to the decision by allowing overhead shelter from 7 p.m. to 7 a.m. In Shantz, however, a judicially established 7 p.m. to 9 a.m. was set with the goal of balancing safety with the court's conclusion that there was some need for day-time shelter.
Second, Shantz added the requirement that shelter options must be viable and accessible. Where Adams engaged in an almost mathematical comparison of the number of shelter beds and the resulting shortfall, Shantz took a more nuanced approach and discussed the type of beds available and the various barriers to accessing those beds before concluding that there were "insufficient viable and accessible options".
Shantz illustrates the need to take a proactive and measured approach to addressing homelessness. Local governments would be wise to review, and, if necessary, amend their bylaws to ensure they minimally impair section 7 Charter rights of homeless persons living within their jurisdiction.
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