by Laura Track

On October 14, the B.C. Supreme Court handed down a decision with potential repercussions for the entire country. In Victoria (City) v. Adams, Justice Ross struck down Victoria bylaws prohibiting homeless people from erecting temporary shelter on City-owned land. She ruled that the bylaws were arbitrary and overbroad and thus violated Section 7 of the Charter and were not saved by Section 1.

The decision is based on three main findings of fact. First, the number of homeless people living in Victoria vastly exceeds the number of shelter beds. Thus, hundreds of people have no choice but to sleep outside in the City’s parks and streets. Second, the effect of the bylaws was to prohibit homeless people from erecting any kind of overhead protection to shelter themselves from the elements, even on a temporary basis. Third, the effect of the prohibition was to impose upon homeless people, who are among the most vulnerable and marginalized of the City’s residents, significant and potentially life-threatening health risks such as hypothermia.

Given these realities, Justice Ross found that by denying access to shelter, a basic necessity of life, the City violated homeless people’s right to life, liberty and security of the person, in a manner not in accordance with the principles of fundamental justice.

There have been predictable accusations of judicial activism and legislating from the bench, but in fact the judgment was remarkably narrow. Justice Ross noted that the City enacted the bylaws for legitimate purposes: protecting parks’ natural environment, ensuring parks are available for everyone to enjoy, and because of public health concerns. However, the City was unable to show how prohibiting people from sheltering themselves at night would achieve those aims. Recognizing that policy makers are entitled to deference in the policy choices they make regarding complex issues such as homelessness, Justice Ross emphasized that, nevertheless, it is the responsibility of government in making those decisions to act in conformity with the Constitution.

Accusations that the judgment will result in the unbridled expansion of tent cities throughout the city are also misguided. The judgment does not suggest that all laws should be suspended with respect to homeless people in parks, nor that there can be no regulation of when, where, and how homeless people may shelter themselves. In response to the court’s decision, the City of Victoria passed a new bylaw restricting the hours when tents could be erected to between 9:00 p.m. and 7:00 a.m. Unfortunately, those hours were decided without any consultation with the homeless people sure to be affected, and the Victoria police’s efforts to enforce the new bylaws resulted in several arrests just days after the court’s decision.

The City of Vancouver says it will continue to enforce its own bylaws prohibiting homeless people from sheltering themselves on public property, despite the Victoria ruling. This despite the fact that Vancouver has fewer than 800 shelter beds and more than 1500 homeless people, according to a homeless count conducted in March 2008. In the last nine months of 2007, Vancouver shelters turned away homeless individuals seeking a place to stay for the night 36,000 times because the shelter was full.

The City of Victoria plans to appeal the court’s decision.

Laura Track, Lawyer, Pivot Legal LLP

This article was published in the December 2008 issue of BarTalk. © 2008 The Canadian Bar Association. All rights reserved.