We’ve had a pretty cold winter so I’m going to hope that our summer will be dry and hot. That’s good because I love to camp… legally that is. For many local governments, a dry hot summer may lead to an increase in unlawful camping. This will require an expansion of municipal services.
In B.C. more people may seek to camp in public parks, given the City of Victoria v. Adams decision (see our October 2008 Client Bulletin). Indeed, with this global economic downturn, the City of Sacramento, California installed portapotties along its riverbank for a tent city comprised of about 150 homeless people.
As the municipal prosecutor for the City of Victoria in its recent camping prosecutions, I want to provide some practical advice with respect to dealing with the homeless and/or urban camping activists this summer.
In Adams, Madam Justice Ross held that an absolute prohibition on the ability of homeless people to erect temporary structures in parks and public places violated their Charter rights. In response to that ruling and pending an appeal to the BC Court of Appeal, the City adopted a policy of permitting overnight camping between the hours of 7 p.m. through 7 a.m. This was challenged and in late January, Judge Mackenzie of the Provincial Court advised the City to integrate its policy into a formal parks bylaw amendment.
The City amended its bylaw and continued to prosecute urban camping activists. On February 12, 2009, Judge Blake of the Provincial Court found that the amended bylaw was a measured response that accommodated all interests pursuant to the Adams decision. The bylaw amendment thus passed Charter scrutiny.
The City of Victoria may be amongst a handful (if any) of municipalities to permit overnight camping in North America. The bylaw amendment itself expressly stated that it was a temporary response to the Adams decision until the appeal is heard. Adams is now before the B.C. Court of Appeal and will be heard on June 10th, 2009.
In the meantime, many local governments are wondering whether their parks bylaws are in compliance with Adams. I have reviewed a number of parks bylaws and can confirm that they are not in compliance with the Adams decision. Most bylaws do not permit any temporary overnight camping in parks. Nevertheless, I do not recommend amending your bylaws until such time as the Court of Appeal has ruled on this matter. This may seem like an odd recommendation, however given the appeal, it is a practical one.
Critical to Adams is the requirement for enough overnight shelter beds to accommodate homeless persons. Urban municipalities have shelters but most suburban municipalities do not. And we have not begun to address the lack of shelter bed resources in rural municipalities. Thus, it would be prudent to wait for the B.C. Court of Appeal to provide some guidance before taking legislative action. If the appeal is successful, there may be no requirement to amend any bylaws. If the appeal is unsuccessful, it may well be that local governments will need to ensure that they have shelter beds in their jurisdiction before amending their bylaws. Moreover, some financial assistance from the provincial and federal governments may likely be needed.
In the meantime, what this means is that local governments should allow homeless persons temporary, overnight camping in its parks until the B.C. Court of Appeal has rendered its decision. If there are urban camping activists who wish to challenge your bylaw, you should consider whether you have enough shelter beds before prosecuting because you would be unsuccessful in court if you do not have them.
In any event, we’re hopeful for a positive result in the B.C. Court of Appeal. Until then, it may be a dry, hot summer with potentially free camping in public parks. Come by my site for a wiener roast!