On Wednesday, October 21, 2015, Chief Justice Hinkson of the British Columbia Supreme Court gave effect to the arguments of an association called Drug War Survivors (“DWS”) that the City of Abbotsford’s bylaws that forbade sleeping in the City’s parks or the temporary erection of shelters without permits to be contrary to s. 7’s protection of security of the person under the Charter and were therefore of no force or effect. In an 81 page reasons for judgment in Abbotsford (City) v. Shantz, 2015 BCSC 1909 that reviewed the evolving jurisprudence under s. 7 of the Charter and specifically previous British Columbian decisions respecting a similar challenge of the City of Victoria’s bylaws, Chief Justice Hinkson made it clear that, while there was not a positive obligation on the part of the municipality to provide shelter to its homeless population, so long as there was insufficient shelter available, the municipality could not prohibit the homeless from doing what they needed to do in order to ensure their own life, liberty and security of their persons.

This case began with a certain degree of infamy because, at one point in 2013, when a homeless camp refused to budge or, more properly, refused to budge fast enough, the City of Abbotsford directed its workers to drive a truck to the site and to spread chicken manure over the homeless encampment. At the time, the City’s decision to do so spawned a media storm. Chief Justice Hinkson found the City’s actions “disgraceful and worthy of the Court’s disapproval”. But he did not find the spreading of manure to be sufficient to breach any Charter rights in and of its own.

He reviewed the decision of Madam Justice Ross in Victoria (City) v. Adams, 2008 BCSC 1363 and of the Court of Appeal in the same case (2009 BCCA 563). He concluded at para. 132:

Adams BCSC and Adams BCCA thus established that in circumstances where there is no practicable shelter alternative, homeless people are exposed to a risk of serious harm; including death and that the risk of this harm is an interference with a homeless person’s rights to life, liberty and security of the person.

He noted that “homelessness” is not in itself an illegal activity. At para. 145, he made the critical determination that “homelessness is a risky, but legal activity and enforcement of the Impugned Bylaws heightens the health and safety risks that the City’s homeless face.”
The Chief Justice rejected the claims of the DWS under s. 2(c), 2(d) and 15 of the Charter. Relying on the Adams decisions, and on the relatively recent decisions of the Supreme Court of Canada in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, Canada (Attorney General) v. Bedford, 2013 SCC 72, and Carter v. Canada (Attorney General), 2015 SCC 5, he provided the following synopsis of how the homeless’ section 7 claim needed to be analysed:

[188] It is the Impugned Bylaws that prevent the homeless from camping in public spaces without permits or erecting, without permit, temporary shelters in public spaces that are asserted to subject the City’s homeless to decreased dignity and independence and increased physical and psychological harm. The s. 7 liberty interest is thus engaged by the Impugned Bylaws that interfere with the fundamentally important personal decision to shelter one’s self in circumstances where there is no practicable alternative shelter. The Impugned Bylaws and Displacement Tactics are alleged to impact the City’s homeless’ s. 7 rights because their effect is to continually displace the City’s homeless from public spaces.

[189] The standard against which an allegation of engagement of a s. 7 life, liberty or security of the person interest in relation to a law or government action is evaluated is that of sufficient causal connection, having regard to the context of the case. There needs to be a sufficient causal connection between the state-caused effect and the prejudice suffered by the claimant. Laws or actions do not have to be the only or dominant cause of the prejudice suffered by the City’s homeless to engage their s. 7 rights.

[190] Arbitrariness, overbreadth and gross disproportionality all compare the rights infringements caused by the law or actions with the objective of the law or actions and not their effectiveness.

[191] The inquiry does not consider how well the law achieves its objective or how much of the population the law benefits; there is no consideration of ancillary benefits to the general population that is considered under s. 1. A grossly disproportionate, overbroad or arbitrary effect on only one person is sufficient to establish a breach of s. 7. The balancing of an individual versus society’s interest within the s. 7 analysis is only relevant when elucidating a principle of fundamental justice.

The Chief Justice then reviewed whether the Impugned Bylaws were arbitrary, overbroad or grossly disproportionate. While he found that they were not arbitrary, he did find them overbroad and grossly disproportionate. When he turned to the section 1 analysis, he noted that it was difficult to uphold a law that has been found not to accord with the principles of fundamental justice. His section 1 analysis was succinct:

[245] I accept that the salutary effects of the Impugned Bylaws are to prevent the negative impacts noted above on public lands, including highways, associated with encampments on public lands, but I do not accept that the deleterious consequences of the Impugned Bylaws are minimal.

[246] Certain kinds of regulation of public spaces, which by definition limit citizens’ fundamental freedoms, may be necessary and justifiable. But the protection of s. 7 rights and freedoms will advance the dignity and autonomy of the City’s homeless, by safeguarding their safety and security.

[247] I accept that the Impugned Bylaws have a pressing and substantial objective, and that the means of regulation are rationally connected to that objective. I find, however, that the Impugned Bylaws fail to minimally impair DWS’ members’ s. 7 freedoms and rights, and lack overall proportionality between the benefits and the burdens of the effects of those regulations as they do almost nothing to accommodate the City’s homeless’ s. 7 freedoms and rights. In the result, I conclude the that City has failed to justify the infringement of the s. 7 rights of the City`s homeless.

Chief Justice Hinkson exercised a high degree of flexibility when he issued his declaration. Instead of simply declaring that the Bylaws were of no force or effect, he essentially put time parameters on the effectiveness of the declaration. His reasoning which, frankly, seems at times self-contradicting, was as follows:

[273] Some of the City’s homeless have possessions such as tents and sleeping bags which are heavy, and being required to move each day means carrying heavy belongings, and possibly having to move long distances to access daytime shelter is a hardship for them.

[274] The evidence about the Gladys Avenue Camp satisfies me that it is unsafe for the homeless and other residents of the City to permit any sustained occupation of a particular space by the homeless. The sustained presence of the homeless at the Gladys Avenue Camp has resulted in the accumulation of between 100 and 500 used syringes in a matter of days, human feces and rotting garbage left throughout the encampment, the presence of rats, and violence and criminal activity following the establishment of the encampment.

[275] Following the decision of the Court of Appeal in Adams, the City of Victoria passed new bylaws, one of which limited overnight stays in that city’s parks to the hours of 7:00 p.m. to 7:00 a.m. from November to February and from 8 p.m. to 7 a.m. from March to October.

[276] I conclude that allowing the City’s homeless to set up shelters overnight while taking them down during the day would reasonably balance the needs of the homeless and the rights of other residents of the City. The evidence shows, however, that there is a legitimate need for people to shelter and rest during the day and no indoor shelter in which to do so. A minimally impairing response to balancing that need with the interests of other users of developed parks would be to allow overnight shelters to be erected in public spaces between 7:00 p.m. and 9:00 a.m. the following day.

[277] The question then becomes, in which public spaces the shelters should be permitted between those times. I have given serious thought to granting an order that specific park land in the City be designated for use by the homeless. Indeed, DWS seeks an order designating specific lands for overnight camping, namely Lonzo Park and/or the Triangle. While the designation of specific public parkland for use by the homeless would afford a degree of certainty to the homeless, and the City, as well as to residents of the City, it is my view, that this is a legislative choice, and not an order that is open to me to make.

[278] Distinguishing non-developed parks and other public spaces from developed parks may allow the City to legislate areas where more than overnight camping is permitted. A balanced and minimally impairing approach would take into consideration the proximity of such spaces to services for the City’s homeless and whether certain areas should be designated as environmentally sensitive, while ensuring that space exists in which the City’s homeless can sleep, rest, shelter, stay warm, eat, wash and attend to personal hygiene. Whether such areas may be occupied on a consistent or rotating basis must be determined after consideration of each unique area.

[279] I will however declare, pursuant to s. 52 of the Constitution Act, 1982, that ss. 14 and 15 of the Consolidated Parks Bylaw, and subsection 2.7(d) of the Good Neighbour Bylaw to the extent that they apply to the City’s homeless and prohibit sleeping or being in a City park overnight or erecting a temporary shelter without permits violate s. 7 of the Charter, and are of no force or effect, and are not saved by s. 1 of the Charter.

[280] Given the difficulties with the homeless encampments that I have described above, I find that any declaration respecting overnight sleeping in the City’s public spaces and the erection of shelters without permits in such spaces cannot be unlimited. I will therefore limit the declaration to overnight stays between 7:00 p.m. and 9:00 a.m. the following day.

While the Chief Justice expressly stated that he did not want to usurp the role of the legislative branch by declaring that the City had an affirmative obligation respecting the necessities of life, one might argue that he has indeed usurped that role in declaring when temporary shelters can be erected and when they must be taken down. That is purely a legislative function.

Municipalities across Canada should take note of this decision. It is noted that the law that has evolved in British Columbia has thus far resulted from municipalities in the more climatically temperate parts of that province. Elsewhere in British Columbia, and elsewhere in Canada, especially in the fall and winter, temperatures and conditions are often such that “temporary” shelters may be impractical for the homeless. Assuming that Adams and now Shantz remain good law and are not overturned, if a municipality does not want encampments of homeless residents in its parks, it effectively is faced with a positive obligation to provide shelter (notwithstanding Chief Justice Hinkson’s express statements that he did not want to intrude into that aspect of the role of the legislature).

In my view, this case is yet another example of the expanding role of s. 7 in Canada’s social contract, enlarging the scope of the Charter’s influence over public policy decision-making.

I remain

Constitutionally yours

Arthur Grant