The recent decision of the BC Supreme Court in Abbotsford (City) v. Shantz, 2015 BCSC 1909, is yet another indication of how the seemingly intractable problem of homelessness in Canadian society continues to create conflict and costs for local governments. The City of Abbotsford was seeking orders from the Court for a permanent injunction against persons who were camping overnight in Jubilee Park, as well as damages from the named defendant, Barry Shantz.
In a separate action, the British Columbia/Yukon Association of Drug War Survivors brought a petition against Abbotsford seeking various declarations, including a declaration that certain bylaw provisions of the City of Abbotsford violated sections 2, 7 and 15 of the Charter of Rights and Freedoms, a declaration that the rights to warmth and adequate protection from the elements were aspects of life, liberty and security of the person guaranteed by section 7 of the Charter, a declaration that certain City actions constituted discrimination under section 15 of the Charter, and a declaration affirming a right of the City’s homeless to peacefully assemble and associate in public spaces under sections 2(c) and 2(d) of the Charter.
In the result, the Court, following the earlier decision Victoria (City) v. Adams, 2009 BCCA 563, held that sections 14 and 15 of Abbotsford’s Consolidated Parks Bylaw and subsection 2.7(d) of the Good Neighbour Bylaw, which prohibited camping in parks and public spaces without permission, violated section 7 of the Charter, were of no force and effect, and were not saved by section 1 of the Charter of Rights and Freedoms. Section 1 of the Charter allows governments to infringe Charter rights where the limits placed on the rights are considered reasonable and demonstrably justifiable in a free and democratic society.
The bylaws in question prohibited camping in parks but did allow for issuance of discretionary permits to allow camping.
As background, the court ruled that the type of shelters available were “impractical for many of the City’s homeless” because they could not abide by the rules or had insufficient means to pay even low rents. The court concluded that the City had insufficient accessible shelter space, with a focus, however, less on the number of the spaces than on the suitability of the spaces given the issues facing the homeless themselves.
The court said the following regarding section 7 of the Charter:
“The section 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 practical alternative shelter.” (paragraph 188)
To determine whether a breach of section 7 has occurred, courts will examine whether the law in question results in arbitrariness, overbreadth, or gross disproportionality of the effects of the law.
On the issue of whether the bylaws were ‘arbitrary’, the court noted that while public property is held by governments in trust for the public:
“The right to access and use public spaces is not absolute. Governments may manage and regulate public spaces, provided that such regulation is reasonable and accords with constitutional requirements. Reasonableness must be assessed in light of the public purpose described.”
The City presented evidence supporting a reasonable apprehension that harm would flow from the unregulated use of public property. The court could not conclude that the impugned bylaws were arbitrary, but recognized that the City had to be permitted to balance the needs of all of its parks users.
On the question of overbreadth, however, the court did find that the bylaws were overbroad, as they used legislative means that were broader than necessary to accomplish the legitimate objective of protecting City parks for use by all citizens.
On the question or gross disproportionality, the court found that, on the evidence, there were insufficient viable and accessible options for all of the City’s homeless (paragraph 222), and the permit system that Abbotsford had to grant permission to use parks for camping was found to be of no practical benefit to the City’s homeless:
“They are unable to avail themselves of the discretionary procedure provided for in the parks bylaw.” (paragraph 221)
The court therefore concluded that the effect of denying the City’s homeless access to public spaces without permits and not permitting them to erect temporary shelters without permits was grossly disproportionate to any benefit the City might derive from furthering its objectives of protecting the parks, and therefore the bylaws breached the section 7 rights of the City’s homeless. The court rejected the other arguments brought by the British Columbia/Yukon Association of Drug War Survivors and the other personal defendants, namely that the bylaws were violations of section 15 of the Charter of Rights and Freedoms, and refused to grant the additional declarations.
On the section 1 analysis, examining whether the breaches of section 7 could be justified, the court used the following analytical framework:
(1) is the limit as prescribed by law?
(2) is the purpose for which the limit is imposed pressing and substantial?
(3) Are the means by which the legislative purpose is further proportionate?
(a) is the limit rationally connected to the purpose?
(b) does the limit minimally impair the Charter right?
(c) is the law proportionate in its effect?
The court found that the limits were prescribed by law, and that the need for the bylaws did address a pressing and substantial need, being the need of the City to manage lands it owns for the benefit of all citizens because of the concerns about the building of structures on public lands, the appropriation of public space by one group of citizens to the exclusion of others, damage to public lands, nuisances, and unsightliness on public lands.
The court found that there was a rational connection between the prohibitions and bylaws and objectives that the bylaws purported to meet. However, the court did not find that the section 7 rights had been minimally impaired by the bylaws. The breach was therefore not justified under section 1 of the Charter of Rights and Freedoms and, accordingly, could not be saved by section 1.
Given the Court of Appeal decision in Adams, the result is perhaps not surprising – but unfortunately allowing the homeless to erect tents in parks and public spaces does nothing to address the core need for viable housing solutions for some of society’s most vulnerable individuals. Parks and public spaces will likewise remain at risk unless communities are able to develop sufficient accessible types of shelter.
