IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Abbotsford (City) v. Shantz, |
2015 BCSC 1909 |
Date: 20151021
Dockets S156820;
S159480
Registry:
New Westminster
Docket:
S156820
Between:
City
of Abbotsford
Plaintiff
And
Barry
Shantz, John Doe, Jane Doe and Other Persons Unknown Erecting, Constructing,
Building or Occupying Tents, Shelters or Other Constructions on the Land Known
as Jubilee Park, Abbotsford, British Columbia
Defendants
–
and –
Docket:
S159480
Between:
British
Columbia/Yukon Association of Drug War Survivors
Plaintiff
And
City of Abbotsford
Defendant
And
British
Columbia Civil Liberties Association
Intervenor
Before:
The Honourable Chief Justice Hinkson
Reasons for Judgment
Counsel for British Columbia/Yukon Association of Drug War | D. Wotherspoon, D. J. |
Counsel for the City of Abbotsford: | J. G. Yardley, A. D. |
Counsel for the Intervenor B.C. Civil Liberties | A. Latimer |
Place and Date of Hearing: | New Westminster, B.C. June 2930, July 2, |
Place and Date of Judgment: | New Westminster, B.C. October 21, 2015 |
Difficulties With Homeless
Encampments
Bylaw Enforcement and Evictions
Damaging Tents and Personal Property
Destruction or
Disposition of Personal Property
The Failure by the City to Develop
Housing
Section 2 and Fundamental Freedoms
Section 7 and Principles
of Fundamental Justice
The Citys Claim for Damages Against
Mr. Shantz
Permanent Injunction Sought by the
City
Declaratory Relief Sought By DWS
Consolidated Parks Bylaw, 1996
Consolidated Street and Traffic
Bylaw, 2006
INTRODUCTION
[1]
In Action No. 159480, the City of Abbotsford (the City) seeks a
permanent injunction in relation to events that occurred at Jubilee Park in
Abbotsford. In addition, the City seeks damages against the personal defendant,
Barry Shantz.
[2]
In Action No. S159480, the British Columbia/Yukon Association of
Drug War Survivors (DWS), challenges the constitutional validity of various
bylaws passed by the City. DWS seeks a number of declarations respecting sections
of the Citys Consolidated Parks Bylaw, the Consolidated Streets
and Traffic Bylaw and the Good Neighbour Bylaw and damages against
the City based upon various asserted rights under the Canadian Charter of
Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].
[3]
The two proceedings were heard together as result of an order that I
made on November 10, 2014. These reasons deal with both proceedings.
ISSUES
[4]
I would phrase the issues raised in these
proceedings as follows:
a)
whether the
interlocutory injunction granted to the City in respect of Jubilee Park should
be made permanent; and
b)
whether the City is
entitled to recover damages from Mr. Shantz, and if so, what damages, and
in what amount;
c)
whether the right to
obtain the basic necessities of life is a foundational principle of fundamental
justice;
d)
whether the s. 7
rights of the Citys homeless include the right, without permit, to erect
temporary, non-obstructing, shelter during the day as well as at night, on City
park lands and public spaces;
e)
whether certain
provisions of the Citys bylaws, as they affect homeless persons breach one or
more of sections 2(c), 2(d), 7 and 15 of the Charter and, if they do,
what relief should be ordered;
f)
whether certain acts of
City employees and others, affecting the Citys homeless breach the Charter
and, if they do, what relief should be ordered.
[5]
For the reasons which follow, in Action No. S156820, I decline to
grant the permanent injunction sought by the City. In addition, I dismiss the
claim for damages brought by the City against Mr. Shantz.
[6]
For the reasons that follow, in Action No. S159480, I declare that portions of the bylaws passed by the City which
prohibit sleeping or being in a park overnight without permits or erecting a
temporary shelter without permits violate the guarantee the right to
life, liberty and security of the person set out in s. 7 of the Charter.
I decline to issue other declaratory relief sought by DWS or to award any
damages.
THE PARTIES
[7]
The City is a local government constituted under the Community
Charter, S.B.C. 2003, c. 26 and the Local Government Act,
R.S.B.C. 1996, c. 323. The City has a population of approximately 140,000.
[8]
Barry Shantz is a resident of the City and is a director of DWS.
[9]
DWS is a society incorporated under the Society Act, R.S.B.C.
1996, c. 433. It asserts that some of its members are drug users or former
drug users, and that some have no fixed addresses, or any predictably safe
residences to return to on a daily basis. DWS asserts that a number of its
members live on the streets or in other places not generally intended for human
habitation, including public spaces in the City.
[10]
By order dated September 29, 2014, I granted public interest standing to
DWS on the basis that it had raised serious issues to be tried, that it had a
genuine interest in the issues that it wished to raise in these proceedings,
and that if it was not granted standing, there was no other reasonable and
effective way to bring the issues that it has raised before the court, B.C./Yukon
Drug War Survivors Association v. Abbotsford (City), 2014 BCSC 1817
(Standing Decision).
[11]
On January 20, 2015, I granted intervenor standing to the British
Columbia Civil Liberties Association (BCCLA). The BCCLA supports the
positions advanced by DWS.
BACKGROUND
The Citys Parks
[12]
The City holds numerous parcels of land,
amounting to some 2,534 acres of parkland. Lands administered by the City’s Parks,
Recreation and Culture Department include 80 playgrounds, 60 sports fields,
several community centres, swimming pools, 2 arenas, 4 cemeteries, a golf
course, Exhibition Park, and a civic centre precinct that includes the Reach
Art Gallery, City Hall, the police station and the Courthouse.
[13]
The City classifies its parklands into 4 broad
categories:
1. Neighbourhood parks. These are local in
scale, are mainly used for socialization, serve an area equivalent to an
elementary school catchment area, and are intended to be located within 500
meters or a ten minute walk of residents.
2. Community parks. These are typically larger
parks, serving an area equivalent in area to a high school catchment. Community
parks typically contain amenities such as sports fields and splash parks.
3. City wide parks. These are parks for events
and interests that bring people together. These include Exhibition Park, Mill
Lake Park and the civic centre precinct. Facilities at these parks include
sports fields, legacy buildings, picnic sites and special purpose buildings,
such as art galleries, institutional buildings and historic houses.
4. Open
space. This consists of mountainsides, ravines and other lands that are not
developable.
[14]
Some of the City’s parklands are also used for
storm water detention ponds, and during periods of heavy precipitation are
unusable.
The
Citys Trails
[15]
The City also holds and maintains 105 kilometers
of maintained trails.
The Citys Highways
[16]
There are approximately 945 kilometers of highways in the City.
THE IMPUGNED BYLAWS
[17]
Pursuant to the Community Charter, the City has enacted three
bylaws for managing its parks and streets. It is portions of these bylaws which
are at issue in these proceedings:
a)
Consolidated Parks Bylaw, 1996, No. 160-95 (Parks Bylaw);
b)
Consolidated Street and Traffic Bylaw, 2006, Bylaw No. 1536-2006 (Street and Traffic Bylaw);
c) Good Neighbour Bylaw, Bylaw No. 1256-2003
(Good Neighbour Bylaw)
(collectively,
Impugned Bylaws).
[18]
The relevant sections of the Impugned Bylaws are reproduced
in Appendix A which is attached to these Reasons for Judgment.
[19]
The objectives of the Parks Bylaw
provisions are to assist in the regulation, prohibition and imposition of
requirements in relation to the management, maintenance, improvement,
operation, control and use of property held by the City as a park, with a view
to ensuring that parks are available to current and future members of the
public, for pleasure, recreation, or similar community uses.
[20]
The objectives of the Street and Traffic
Bylaw provisions are to assist in the regulation, prohibition and
imposition of requirements in relation to the management, operation and use of
Citys streets and highways with view to ensuring that they may be safely and
efficiently used by all members of the public for mobility, transportation and
commercial activities.
[21]
The objectives of the provisions from the Good
Neighbour Bylaw are to assist in the regulation of individuals who engage
in activities that interfere with, or disrupt, the publics quiet use and
enjoyment of property.
[22]
Those wishing to use outside areas in parks in the daytime, or camp
overnight in the parks, must apply for a discretionary permit from the City.
The person applying must have a valid credit card. Private bookings in the
parks during the daytime cost $15/hour, and commercial bookings cost $35/hour.
Insurance must also be obtained for such bookings. There is a $10 charge per
vehicle or tent each night for overnight camping. In considering whether to
exercise its discretion to grant permits, the City considers the dates, number
of people, whether that site has already been booked, whether the space is
appropriate, whether the facilities are large enough, and whether the proposed
use might cause damage to the park.
[23]
Along with the parks booking system, the Parks
Bylaw allows people to apply to the City to erect structures, including
tents, in its parks. The Parks Bylaw sets out in section 30 the
following criteria for reviewing such requests:
a)
the impact such activity will have on other
members of the public;
b)
the impact such activity will have on the
environment and around the subject park;
c)
public safety issues; and
d)
the nature, duration and size of the activity.
[24]
The DWS allege that the following sections of the Impugned Bylaws are
unconstitutional:
a)
Sections 14 and 17 of the Parks Bylaw, which prohibit sleeping or
being present in any park overnight and erecting any form of shelter from the
elements without permits;
b)
Sections 10 and 13 of the Parks Bylaw, which prohibit gathering
and meeting in any park or obstructing any other person from the free use and
enjoyment of any park;
c)
The definition of “park” in section 2 of the Parks Bylaw,
which includes all public places under the jurisdiction of the City;
d)
Subsection 2.7(d) of the Good Neighbour Bylaw, which prohibits
erecting any form of shelter from the elements in any public place;
e)
Subsection 2.7(e) of the Good Neighbour Bylaw, which prohibits
sleeping in a vehicle on any highway or other public place;
f)
The definition of “Highway or Other Public Place” in Schedule
A to the Good Neighbour Bylaw, which includes any place to which the
public has, or is permitted to have access or is invited; and
g)
Subsections 2.1(d), (h) and (j) of the Street and Traffic Bylaw,
which prohibit creating any obstruction to the flow of motor vehicle, cycle or
pedestrian traffic on a Highway, and prohibits any chattel or ware of any
nature, or any object from being placed on a Highway.
[25]
DWS contends that the Impugned Bylaws are arbitrary, overbroad,
and grossly disproportionate in effect, as they function to continually
displace the Citys homeless from public spaces, and thereby prevent them from
obtaining the basic necessities of life including survival shelter, rest and
sleep, community and family, access to safer living spaces, and freedom from
the risks and effects of exposure and sleep deprivation.
CHRONOLOGY OF EVENTS
[26]
On June 4, 2013, some City employees orchestrated the eviction of
some of the Citys homeless from a camp on Gladys Avenue (the Happy Tree
Camp) by spreading chicken manure on the campsite.
[27]
In or around October 20, 2013, Barry Shantz and others entered into
Jubilee Park, one of the Citys parks, and set up a tent camp where they
remained, without written permission from the City.
[28]
On December 12, 2013, many of the occupants of the tent camp moved into
a wooden structure (Structure) that had been erected in the parking lot of
Jubilee Park.
[29]
On December 13, Mr. Justice Blok ordered that the Structure
be vacated.
[30]
On December 20, 2013, Mr. Justice Williams granted an interim
injunction that among other terms enjoined the erection, placement,
construction or building of tents, shelters, and other constructions in Jubilee
Park and ordered the removal from the park of the Structure and any tents,
shelters, and other constructions in the park, and permitted the arrest of
those with knowledge of his order who failed to comply with its terms.
[31]
When the Order to vacate Jubilee Park was posted at the tent camp, the
occupants of the camp left Jubilee Park. Thereafter, many moved from one public
or private space to another, often due to notices or verbal requests to do so
by City staff. Some found housing. Two or three of the homeless came to the
Salvation Armys Shelter (the Salvation Army Shelter) and one obtained a rent
supplement. BC Housing offered housing supplements to some of the people who
had camped at Jubilee Park subject to a precondition that housing was actually
available. Some of the Citys homeless have camped on City land, private land
or on land belonging to the Province. Some have erected tents, tarps, boxes,
blankets or other improvised structures to protect themselves from the
elements. Sometimes some of the homeless live in proximity to each other, while
others prefer to live alone.
[32]
After December 21, 2013, several people erected tents along the west
side of Gladys Avenue in the City adjacent to the intersection of Gladys Avenue
and Cyril Street (the Gladys Avenue Camp). City staff has tolerated the
presence of the campers since then. To some extent, the City and some
charitable organizations have also accommodated the presence of the campers by
providing some garbage removal, supplies and food. In January 2015, there were
at least 12 people at this location, but the number of people observed there by
the Citys employees has varied from 5 to about 20.
DEFINITION OF HOMELESSNESS
[33]
The Mennonite Central Council (MCC) Homeless Count includes persons
who are living and sleeping outside, persons who are in emergency shelters,
safe houses, and transition houses, and persons who couch surf (meaning they
sleep at a friends or family members place for a night or two or three, and
then move on to another place). Of these people, the majority are men aged
30-49, about 32 (21%) self-identify as Aboriginal, and just over 76 (51%) are
living and sleeping outside. Approximately 30% of the Citys homeless further suffer
from chronic homelessness (defined as having been homeless for more than one
year), a proportion significantly higher than in other municipalities (1015%)
and overall in Canada (15 20%).
[34]
The MCC Homeless Count determined that there were 226 homeless in the
City in 2004, 235 in 2008, and 117 in 2011. The most recent count which was
conducted in 2014 tallied 151 homeless individuals living in the City. Of the
151 identified in 2014, 62 reported sleeping outside any building on the
evening of March 11 12, 2014, the date of the count.
[35]
DWS submits that the appropriate definition of homelessness is:
a population of people without a
fixed address, or a predictable safe residence to return to on a daily basis, a
number of whom live on the streets or in other places not generally intended
for human habitation including in public spaces.
[36]
The City contends that while it is necessary to define the term
homeless, it rejects the definition proposed by DWS. The City contends that
the term homeless should be defined by the factor that has
been placed at issue in this proceeding: the use of public land for habitation.
[37]
When asked to define homelessness, Pastor Wegenast of the 5 and 2
Ministries stated that BC Housing outlines several definitions, the primary one
being individuals with no fixed address. He considers as homeless the people
camping on Gladys Avenue or sleeping under overpasses, in bushes or in cars, as
well as people without control over their housing conditions or length of stay
at a location. The latter he called hidden homeless, who include people
trading sex for shelter or people living in transition homes.
[38]
The DWS submitted an expert report prepared by Dr. Yale Belanger in
which Dr. Belanger stated that:
6.97% of urban Aboriginal people
in Canada are considered to be homeless compared with 0.78% of the mainstream
population. More than one in fifteen urban Aboriginal people are homeless,
compared to one out of 128 non-Aboriginal Canadians.
[39]
Dr. Belanger noted that Aboriginal people may experience
homelessness differently than others due to generational trauma. He uses the
construct spiritual homelessness to contextualize Aboriginal homelessness,
emphasizing the effects of separation from traditional land, separation from
family and kinship networks, and/or crisis of personal identity whereby an
individuals understanding or knowledge of how one relates to country, family
and Aboriginal identity systems is confused.
[40]
I am not persuaded that spiritual homelessness is relevant to the
actions that I am dealing with. While it may be a factor affecting the
aboriginal population, it is not an issue that I can address within the parameters
of the litigation before me. In respect of the specific needs of Aboriginal
homeless in the City, the issues and remedies are beyond the remedies that I
can entertain in the proceedings presently before the Court.
[41]
I adopt the definition of homeless accepted by the
Court of Appeal in Victoria (City) v. Adams, 2009 BCCA 563 [Adams
BCCA] at para. 161:
a person who
has neither a fixed address nor a predictable safe residence to return to on a
daily basis.
[42]
The homeless population in the city is not homogeneous. Physical and
mental illness, addiction to drugs and alcohol, poverty, and personal trauma or
some combination of these challenges are common to many of the homeless in the
City, and the group is overrepresented by members of First Nations.
[43]
Constable Stahl, a member of the Abbotsford Police Department (APD)
gave evidence that he had been to over 30 homeless camps in the City between
2013 and 2014, albeit some of which appeared to have been abandoned. He
recorded seeing over 90 people living in homeless encampments in the City during
2014.
[44]
While encampments have tended to cluster along
Gladys Avenue, they have also been located on public lands throughout the City including
at Jubilee Park, in the Clearbrook area, at Grant Park, Mill Lake Park, Oriole
Park, Gardner Park, Lonzo Park, and Century Park.
[45]
Constable Stahl also acknowledged that there were homeless camps
on Forest Terrace, behind 7th Avenue, behind the south of Fraser Way, across
from the Salvation Army Shelter, at McCallum/Homeview, on the south side of
Highway 1, at West Railway, south of Fraser Way, behind the University of the
Fraser Valley, under the power lines, behind 3370 Morrey Avenue next to the
tracks, and at 2771 Emerson Street. He confirmed that generally the individuals
he observed residing in the camps were occupants at some point and not simply
just found there. Encampments have also been found on lands not owned by the
City, such as under the Highway One overpass, and on private land behind Save
On Foods.
HOMELESSNESS IN THE
CITY
[46]
While the City contended that there was no evidence before me of any
present homelessness, I find that homeless individuals remain in the City. I
reach this finding based on the evidence of the Citys Homelessness Coordinator,
Dena Kae Beno, and in part upon the conduct of the City creating the Abbotsford
Social Development Advisory Committee, in planning for future housing to
address the problem of homelessness, and in creating the position of
Homelessness Coordinator for the City in April of this year.
Available Shelter Space
[47]
DWS submits that available shelter means shelter that is accessible
shelter. For many of the Citys homeless, available shelter is that which is
low barrier or low threshold shelter, designed to limit the personal, service
and structural barriers to shelter that prevent the Citys homeless from being
housed on any given night. For the most chronically homeless, emergency shelter
may not be accessible at all.
[48]
The City takes the position that there is sufficient shelter for those
who are presently sleeping in public or private property in the City; however,
a report by Cherie Enns, consultant to the City on social issues, confirms that
there is a lack of shelter and housing in the City. In her report titled 2014
Homeless, the City of Abbotsford Role and Response, Next Steps which was
admitted into evidence, Ms. Enns advised that the number of shelter beds
per 100,000 people in Abbotsford is much lower at approximately 20 beds than
the provincial average of 79 and that Abbotsford lacks a comprehensive and
coordinated low-no barrier housing first program.
[49]
Mr. Walker, the Executive Director of the Kinghaven Treatment
Centre (Kinghaven) and the Peardonville House Womens Center
(Peardonville) acknowledged in cross examination that, in Abbotsford,
it is very difficult for us to find transitional housing that respects the
needs of the clients and treats them in an honourable and respectful manner.
[50]
Since April 2015, the City has employed a Homelessness Coordinator, Ms. Dena
Kae Beno. In addition, a Deputy City Manager, Jake Rudolph, was given the
special project of dealing with issues surrounding homelessness. The City had
a Homelessness Task Force between April and October of 2014, and as of December
2014 the City has a Homelessness Action Advisory committee.
[51]
There are three basic types of indoor shelter or housing options potentially
available to the Citys homeless: emergency shelter, second stage housing, and market
housing. No shelter or housing options are funded by the City. The options that
do exist range from temporary to permanent, low barrier to high barrier and
from free to conditional upon the payment of monthly rent.
Emergency Shelter
[52]
The only emergency shelter for adults in the City is the one operated by
the Salvation Army on Gladys Avenue. The Salvation Army has a contract with BC
Housing to provide 20 emergency high-barrier shelter spaces, only six of which
are designated for women. The Salvation Army funds five more beds itself. The Salvation Army Shelters maximum occupancy
in 2014 was 139 percent; the equivalent of 35 people. People are turned
away when the shelter is full; this happens regularly. There is also a 30-day
limit on the length of stay.
[53]
Once someone is in the Salvation Army Shelter for the night, they cannot
leave and be allowed back in. If they stayed the previous night and are not
there by 9:30 p.m. the next night, they lose their bed. People must leave the Salvation
Army Shelter at 7:30 a.m.
[54]
Until early 2014, clients faced numerous barriers to access, including
drug abstinence and sobriety, a 6:00 pm curfew, and temporary bans for minor
rule infractions, sometimes of indeterminate lengths. Prior to early 2014,
there were on average approximately 37 people banned from the Salvation Army Shelter.
[55]
Since a change in leadership in January 2014, the Salvation Army Shelter
has moved from being high-barrier to low-barrier. This has resulted in
fewer people being turned away, forced to leave or banned for lack of sobriety
or violation of other rules and conditions. If the shelter is
full, the only option is to send people to a shelter in a nearby community such
as Mission or Chilliwack. If someone came to the Salvation Army Shelter in the middle of the day to sleep, that request could be accommodated.
[56]
The Salvation Army Shelter keeps track of how many clients enter the shelter
for the first time. On average there are 94 unique clients per month arriving
at the Salvation Army Shelter. Only about 1 in 4 to 1 in 5 (23%) of the people
who access the Salvation Army Shelter move on to securing more permanent
housing, and only about 50% of those people maintain that housing for
more than six months.
[57]
The Salvation Army also operates a 14 suite
supportive independent living facility, for which the rent is $375 per month,
which is the maximum amount provided for rent to those receiving social
assistance.
[58]
The Salvation Army also administers 20 rental
subsidies which are funded by BC Housing, and Abbotsford Community Services administers
another 20 rental subsidies.
[59]
The Cyrus Center has space restricted to young
people.
[60]
Raven’s Moon operates several houses in the City with
spaces for over 70 people in 16 locations for rent of $450/month. One of its
houses is a low barrier mens house. Ravens Moon has housed people who were
living on the streets. It is largely abstinence-based housing; it is
although tolerant of those who relapse. Its homes are consistently full or
nearly full, including in 2014 when the last homeless count was done.
[61]
Kinghaven is an abstinence-based intensive
treatment centre requiring a referral and treatment-readiness. It has space for up to 62 men, including detox beds for people who are
actively under the influence of drugs or alcohol, and some of Kinghaven’s
residents have entered the Centre from homelessness. There are usually 4 to 6
beds available, and as of July 2015 there were spaces for 4 people but neither
shelter nor long-term housing. Kinghaven does not have a program to assist
clients to find housing following treatment.
[62]
Peardonville has 40 beds and provides addiction
treatment with similar rules and timelines as Kinghaven, although beds are not
as frequently available as beds at Kinghaven. Women can be referred from the
Salvation Army and some of the women who attend Peardonville need assistance in
looking for a place to go when they leave Peardonville.
[63]
The Extreme Weather Response Program (EWRP) is
in operation when the temperature drops below zero degrees Celsius, or there is
heavy precipitation. Under the EWRP, more shelter space is opened in the City at
the Salvation Army Shelter, the Cyrus Center, various
secondary sites at churches, and the Citys Agriculture Recreation site, if
there is overflow.
Second Stage Shelter
[64]
There is second stage housing for people who
have been sober. There is the George Schmidt Center, the Christine Lamb
Residence, and Lynnhaven. Although this is second stage housing, there is
evidence of some DWS witnesses who accessed these facilities, such as Colleen
Aitken, who stayed at Lynnhaven for 3 to 4 months.
[65]
The George Schmidt Centre has 30 single beds for men 19 and older who
have committed to long-term recovery from addiction through an abstinence-based
program. Individuals stay an average of six to seven months, and beds become
available only when a resident chooses to leave.
[66]
The Assertive Community Treatment (ACT) Team has
rental supplements for 35 people in the City.
Market Housing
[67]
I also heard evidence about the availability of
market housing in Abbotsford. Two witnesses explained that such housing was
unsuitable on the basis that they couldn’t afford any of them unless they
shared with someone else.
[68]
The availability of market housing to the Citys homeless is limited
by supply, the monthly amount they receive in income assistance/welfare, by
requirements for the payment of application fees, and by other things, such as
whether they are actively using drugs or alcohol. Any market housing that is
available to those with the limited incomes of the Citys homeless is often in
deplorable condition.
Cause of Homelessness
Harvey Clause
[69]
Harvey Clause testified that he lived in Grant
Park in the summer of 2013 and was given several weeks advance notice by the
City to vacate that space. He moved to another outdoor location where he was
assaulted by someone he lived with before moving to Jubilee Park in November
2013. While staying at Jubilee Park, BC Housing offered him a housing
supplement to obtain housing but because the location of the housing was not
identified to him, Mr. Clause declined the offer. Mr. Clause
eventually moved to the Gladys Avenue Camp where he stayed for over a year,
during which time, he testified, he turned down a housing opportunity from a
Salvation Army worker because he would not have been allowed to have guests. He
eventually moved from the Gladys Avenue Camp because a stronger criminal
element moved to the site, and because it was getting to be chaos. He first moved
to a friends cabin for 2 or 3 months, then to “the catacombs” under
the west side of the Hwy 1 overpass, then to the east side of the overpass and then
to a shelter in North Vancouver. Mr. Clause now lives in a house in
Lytton.
Nicholas
Zurowski
[70]
Nicholas Zurowski testified that tents are important both during
the evening and daytime hours. He indicated that there were situations in which
he needed to watch out for someone for an extended period of time, where he was
unable to take that person to the Salvation Army because they would not be able
to obtain adequate sleep there. Having a tent has allowed him to take care of
that person and others and to ensure they have food and water. Mr. Zurowski testified that he started sleeping outdoors on
2006, that it felt like “freedom”, and that he preferred sleeping
outside compared to the Salvation Army Shelter, which he likened to a prison. Mr. Zurowski
now lives in Chilliwack.
Norman
Caldwell
[71]
Norman Caldwell testified that he could go back
and live with his daughter, but he doesnt wish to impose on her and her family.
He also testified that he doesn’t like the Salvation Army Shelter because he
doesn’t like being around other people. Mr. Caldwell testified that
certain groups tend to cluster based on common drug preferences, while
different groups of people do not all get along. When Mr. Clause
was moved out of Grant Park in 2013, he moved under the Sumas highway overpass
on a more obscure hillside. While he was there he was assaulted by another
homeless person. Mr. Clause also testified that following his eviction
from beneath the Sumas overpass, he took drugs in order to stay awake
throughout the night because he had nowhere to go and was afraid to fall
asleep. He ultimately moved to Jubilee Park during the encampment as he
considered it to be a safer option.
Colleen Aitken
[72]
Colleen Aitken testified that she preferred living in a tent to being in
a shelter. Ms. Aitken gave evidence that she overdosed 13 times over a
one-year span. She emphasized that, were it not for her visibility and the
community around her, no one would have been around to assist her and she would
not be alive today.
Other Witnesses
[73]
Holly Wilm gave evidence that she has the option of
moving to Duncan, but as that would mean leaving the place where and with which
she is familiar, she has not exercised that option. Ms. Wilm also
testified that she likes privacy. Rene Labelle testified that he prefers to
live alone and Nanna Tootoosis testified that it “was okay” when he
lived alone. Some witnesses testified that violence is not uncommon at
the Salvation Army Shelter. Both Rene Labelle and Doug Smith admitted in their
oral testimonies to partaking in and at times being banned for such violence.
Nate McCready stated that on the Thursday prior to him testifying in this
proceeding, four people were banned for violent behaviour.
[74]
DWS alleges that there are a number of barriers faced
by the Citys homeless in accessing shelter and housing; onerous requirements
set by these facilities that include sobriety, abstinence, and curfews; a lack
of permanent support services and resources; and individual circumstances such
as criminal records, physical or mental health issues, addictions, and a
distrust of others. There was significant variation to the extent to which
those residing on public lands expressed a desire to be in groups or on their
own, and in open places versus hidden locations. Reasons given during
the Homeless Count for not using a transition house or shelter the previous
night included, too many rules; feels too much like an institution; don’t
like the curfew; do not feel safe; and turned away. While the shift from
abstinence to low barrier for the Salvation Army Shelter has increased the
accessibility of the shelter for some, it has created problems for others who
do not wish to stay in the shelter due to its lower barriers.
[75]
Some of the Citys homeless prefer to seek and set up shelter out of
sight; other of the Citys homeless prefer to gather together in homeless
camps. When the Citys homeless shelter together, in small groups of two or
three or in larger and more stable homeless encampment, this allows them to
both take care of each other, and to gain in the visibility needed for
service providers to find them and address their basic needs, from garbage
pickup, to accessible washrooms, to the provision of fire extinguishers.
[76]
The City contends that some of what are
characterized by DWS as barriers are really more of a disinclination on the
part of individuals to rules, and that while that disinclination may be
genuinely held by the individual, it does not justify the individual either not
accepting, or leaving available shelter, to go and live on public lands.
[77]
The City submits that the evidence supports findings
that there is a degree of choice in sleeping outside, with many individuals
expressing a preference to sleep outside over other viable options; that those
who testified that they currently sleep outside do stay inside at times; that there
was no evidence of a group of homeless who permanently sleep outside in the
City because there is either no space for them inside or because the spaces
inside are effectively inaccessible to them; and that some of those who are
characterized as homeless often involuntarily change the locations where they
live for reasons unrelated to acts of the City.
[78]
In Canada (Attorney General) v. Bedford, 2013 SCC 72 [Bedford],
the Court unanimously rejected the defendants argument that prostitutes
choose to engage in inherently risky activities and can therefore avoid both
the inherent risk of the activity and any increased risk that the laws impose
simply by choosing not to engage in the activity. At para. 86 87, the
Court expressly disagreed with the notion that choice, and not the law, constituted
the real cause of injury to prostitutes in Canada and held:
[86] First, while some prostitutes may fit the
description of persons who freely choose (or at one time chose) to engage in
the risky economic activity of prostitution, many prostitutes have no
meaningful choice but to do so. Ms. Bedford herself stated that she
initially prostituted herself to make enough money to at least feed myself
(cross-examination of Ms. Bedford, J.A.R., vol. 2, at p. 92). As the
application judge found, street prostitutes, with some exceptions, are a
particularly marginalized population (paras. 458 and 472). Whether because
of financial desperation, drug addictions, mental illness, or compulsion from
pimps, they often have little choice but to sell their bodies for money. Realistically,
while they may retain some minimal power of choice what the Attorney General
of Canada called constrained choice (transcript, at p. 22) these are
not people who can be said to be truly choosing a risky line of business (see
PHS, at paras. 97-101).
[87]
even accepting that
there are those who freely choose to engage in prostitution, it must be
remembered that prostitution the exchange of sex for money is not illegal.
The causal question is whether the impugned laws make this lawful activity more
dangerous. An analogy could be drawn to a law preventing a cyclist from wearing
a helmet. That the cyclist chooses to ride her bike does not diminish the
causal role of the law in making that activity riskier. The challenged laws
relating to prostitution are no different.
[79]
In Adams BCCA, the Court of Appeal dealt with matters of choice
at paras. 107 and 109:
[107] Clearly, the claimant in Parker did not
choose to have epilepsy. This, however, did not prevent his decision with
respect to treatment from being protected under s. 7. Similarly, the fact
that homelessness is not a choice does not mean that a homeless persons
decision to provide him or herself with some form of shelter is not protected
under s. 7. Treatment is as much a necessary response to illness as
sheltering oneself is to the state of being homeless. The fact that a claimant
has not chosen their underlying situation does not mean that a decision taken
in response to it is not protected by the s. 7 liberty interest.
[109] We also reject the
alternative argument that the choice to erect shelter to protect oneself from
the elements is not a decision of fundamental personal importance. In Morgentaler,
Wilson J. held that the liberty interest is grounded in fundamental notions of
human dignity, personal autonomy, and privacy (at 164-166). We agree with the
trial judge that prohibiting the homeless from taking simple measures to
protect themselves through the creation or utilization of rudimentary forms of
overhead protection, in circumstances where there is no practicable shelter
alternative, is a significant interference with their dignity and independence.
The choice to shelter oneself in this context is properly included in the right
to liberty under s. 7.
[80]
In my view, it is overly simplistic to assert that members of the Citys
homeless community are living outside, or in the other places they find
themselves, as a result of personal choice. Ms. Beno, the Citys newly
recruited Homelessness Coordinator, testified that there is an immediate and
critical need for shelter in the City.
[81]
In addition, to assert that homelessness is a choice ignores realities
such as poverty, low income, lack of work opportunities, the decline in public
assistance, the structure and administration of government support, the lack of
affordable housing, addiction disorders, and mental illness. I accept that drug
and alcohol addictions are health issues as much as physical and other mental
illnesses. Nearly all of the formerly homeless witnesses called by DWS gave
evidence relating to some combination of financial desperation, drug addiction,
mental illness, physical disability, institutional trauma and distrust,
physical or emotional abuse and family breakdown which led, at least in part,
the witness becoming homeless.
[82]
Given the personal circumstances of the Citys homeless, the shelter spaces
that are presently available to others in the City are impractical for many of
the Citys homeless. They simply cannot abide by the rules required in many of
the facilities that I have discussed above, and lack the means to pay the
required rents at others. While some of those who are amongst the Citys
homeless have declined available shelter, I am satisfied that at the present
time there is insufficient accessible shelter space in the City to house all of
the Citys homeless persons.
Difficulties With
Homeless Encampments
[83]
The encampment in Jubilee Park was present for about 2 months in 2013.
Although some former occupants spoke favorably of the encampment, the evidence
shows that it was neither safe nor clean. There was a violent assault in a
teepee, used needles were continually strewn over the ground, a fire occurred in
a tent, there was an accumulation of garbage and the site became increasingly muddy.
[84]
The City has not enforced its bylaws for most of the last year with
respect to the Gladys Avenue Camp, and indeed has provided fire safety
education and garbage collection services.
[85]
Despite this, the evidence does not establish that the
circumstances of the people at the Gladys Avenue Camp are materially better
than they were at Jubilee Park. Although the City provides garbage collection
and there are sharps containers for the safe disposal of used needles, the ground
is littered with garbage (e.g., batteries, used propane tanks, rotten food,
drug paraphernalia, and human waste) and there are many used needles on the
ground. There have been rats at and around the camp. There have been fights
between occupants and medical emergencies. Weapons have been found and there are
regular signs of fires. There have been numerous instances of
tents burning and nearby trees catching on fire. Propane cylinders are
frequently reported at camps. The use of candles and other open flames in tents
has also been frequently reported.
[86]
Harvey Clause testified that he had never had
more things stolen than at the Gladys Avenue Camp and he left in part because
of an increase in a criminal element there and because it was chaos. Mr. Shantz gave evidence at his examination for discovery, which
was read into evidence at trial, that he has witnessed what he believed to be
the sale of drugs at the Gladys Avenue Camp.
[87]
Ted Maine, a City Fire Prevention Officer, has
visited the Gladys Avenue Camp weekly since September of 2014. Mr. Maine testified
that he has seen propane tanks there. He noted that when propane tanks explode
because of exposure to open flames, a giant fire ball is created. To date there
is no evidence that this has occurred, but the risk of exploding propane tanks
cannot be ignored. Mr. Maine also testified that he saw between 100 and
500 used syringes on his visits, the majority of which have been left on the
ground. He also reported seeing between 10 and 15 rats on each of his visits.
[88]
The Gladys Avenue Camp has been in existence since
approximately December 2013. I am satisfied on the evidence that the conditions
of the Gladys Avenue Camp are unsafe for the people who are living there, for
the people who attend there to provide services to the Citys homeless (e.g., the
Citys employees and people who work or volunteer with various community
organizations), and for the citizens of the City generally.
[89]
The City has chosen to regulate public spaces by enacting presumptive
blanket prohibitions against gathering or doing any other thing likely to cause
a public gathering or attract public attention, the erection, without permit,
of any shelter or construction whatever and the occupation of any park between
one hour after sunset on one day and one hour before sunrise on the following day.
It has done so, it says, to regulate the use of parks and other public places
within its jurisdiction.
DISPLACEMENT TACTICS
[90]
DWS submits that the Citys employees and members of the APD have
employed various policies in their efforts to deal with the homeless population
in the City. DWS contends that the Citys employees and members of the APD
participated in ongoing efforts to harass the Citys homeless by keeping them
moving from one space to another, with no attempt to see that they indeed had
anywhere that they could find shelter or a place to stay.
[91]
DWS alleges that the City employed the following displacement tactics:
a)
issuing bylaw enforcement notices on the Citys homeless requiring them
to vacate the public spaces (“Eviction Notices”);
b)
enforcing Eviction Notices by way of court ordered injunctions, which
injunctions include enforcement provisions pursuant to the Criminal Code,
R.S.C., 1985, c. C-46;
c)
ordering the City’s Homeless to move and/or disperse from various public
spaces verbally and without the issuance of Eviction Notices;
d)
selective policing practices in areas known to be frequented by the
Citys homeless;
e)
spraying bear spray by members of the APD into the tents and onto the
belongings of some of the Citys homeless,
f)
destroying their Survival Shelters, clothing, hygiene items, food and
other personal property;
g)
slashing tents and belongings of some of the Citys homeless by members
of the APD;
h)
spreading fish fertilizer on near homeless encampments;
i)
spreading chicken manure on a longstanding homeless encampment located
on Gladys Avenue;
j)
otherwise destroying or disposing of the personal property of the Citys
homeless;
k)
failing to develop needed housing for people who are homeless or at-risk
of homelessness.
(collectively,
Displacement Tactics)
[92]
At the present time, the City has no designated needle exchange or a
safe injection site. City staff, however, continually raise concerns regarding
the presence of needles, condoms, and other paraphernalia in public parks and
grounds. The City does not provide garbage clean up to any homeless encampments
other than the Gladys Avenue Camp. It does not make public washrooms accessible
during evening hours, nor does it put portable washrooms in its parks. There are
limited daytime services for the Citys homeless, including indoor spaces to
rest or sleep, find adequate nutrition and meals, and accessible toilet and
shower facilities. Outhouses were put in at the Gladys Avenue Camp
approximately one year ago. Prior to that, there were no 24-hour-access
washrooms available.
[93]
Jake Rudolph, the City employee responsible for issues relating
to homelessness, referred in his oral testimony to homelessness as a very
visible issue. When asked to describe the nature of the problem, he said
people are very visual and see things and they note if people are outdoors in
public areas or on streets, gates or sidewalks in the downtown
[T]hat is a
problem.
Bylaw Enforcement and
Evictions
[94]
The City regularly enforces its bylaws to displace the Citys homeless after
receiving calls from the public. The City has multiple protocols and policies
with regard to removing homeless camps. The Citys Integrated Services
Enforcement Team developed such a protocol which was in effect until late 2013.
The City has enforced the Impugned Bylaws to remove numerous homeless camps.
[95]
According to Magda Laljee, who gave evidence for the City, during her
tenure with Bylaw Services, the City did not actively seek out bylaw
contraventions, but they responded to calls for services when the City received
them. A call for service is a call from the public or a complaint or concern
from the public with regards to allegations of a bylaw contravention. The calls
for service could also come from other City employees or departments such as the
Parks crews, Engineering, Planning or Transportation. Although Ms. Laljee
said that in direct examination that Bylaw Officers only responded to
complaints, on cross-examination she testified that the City did not only
respond to complaints from the public, it also responded sometimes to
complaints made by the Citys bylaw officers.
[96]
With respect to homeless people in public spaces, the Citys
employees do issue verbal and written notices to vacate. The notices are
requests for voluntary compliance which is what the City’s bylaw department
normally seeks with respect to bylaw breaches generally. Ms. Laljee
testified that the Citys bylaws department issues up to 100 written requests
to property owners per month for voluntary compliance on other matters. With
respect to encampments, the evidence is that people almost always comply with
the requests to move on although it is acknowledged that they are really given
no choice but to comply.
[97]
Dwayne Fitzgerald, a bylaw officer employed by the City, testified at
the trial. Mr. Fitzgerald approached camp occupants and verbally requested
that they move along. If they failed to comply, Mr. Fitzgerald would
return to post eviction notices. He testified to being present when two tents
were pepper sprayed.
[98]
He also arranged for letters to be sent to property owners requiring
that they enforce the Good Neighbour Bylaw by removing homeless people
from camping on private property. The letters included a threat to undertake
certain work on the property at the expense of the property owner if they
failed to comply with the demands stipulated. The letter also included an
attachment on tactics to deter squatting, which included cutting back bushes
to open up sightlines in order to discourage homeless camping. Mr. Fitzgerald
acknowledged that there have been a number of occasions where brush has been
cut around homeless camps to open up the sightlines and to discourage homeless
people from camping. He agreed that these measures are a practice of the City.
[99]
With respect to private property, including land
under the jurisdiction of the Ministry of Highways, the City does not seek the
removal of an encampment but may deal directly with the property owner with
respect to issues such as unsightliness. Before 2014, Mr. Fitzgerald
actively assisted the Ministry of Highways with respect to encampments.
Use of Bear or Pepper Spray
[100] Constable
Stahl of the APD testified to spraying bear or pepper spray into two empty
tents located on private lands in the City. While his actions in so doing
cannot be condoned, there was no evidence that his use of the pepper spray
affected any member of DWS, and thus no evidentiary basis upon which to find
that this misconduct gives rise to any claim by DWS.
Damaging Tents and
Personal Property
[101] DWS
submits that one of the tactics employed by the City and the APD involved
damaging tents and other personal property belonging to the Citys homeless.
[102] Constable
Wiens testified that on one occasion he cut some straps that held up a tent at
a camp located north of McLure St., along the railroad tracks and just west of
Highway 11. He explained that he did so out of frustration with the mess
created by the occupant. The tent belonged to a man identified as Brian
Bushweed. As a member of the APD, Constable Wiens must exercise greater self-control,
and his conduct in this regard cannot be condoned; however, the evidence does
not support a finding that Constable Wiens conduct gives rise to a Charter breach.
In addition, given that Mr. Bushweed is not a named party to these
proceedings, that there is no evidence before me that he is a member of DWS;
and that a claim for damages was not pleaded, I am unable to award damages.
There may be other venues to seek redress for the damage to Mr. Bushweeds
tent; my conclusion should not act as an estoppel of such claims.
[103] On April
24, 2013, Constable Stahl attended the area behind the Milestones and noticed a
tent that was in disrepair and appeared unoccupied as it was wide open and
seemed to be sagging or falling apart. The tent was closed and it had a lock on
the zipper to the entrance. This was the first time Constable Stahl had ever
seen a lock on the zipper and he claims he was concerned what or who might be
inside due to the nature of individuals living outdoors. Constable Stahl cut an
approximately 4 to 6 inch L shape along bottom right hand corner of the
zipper seam near the door to look inside the tent. He looked inside the tent and
left the area. Constable Stahl did not have any safety concerns with this tent
and he did not know who owned the tent. Constable Stahl acknowledged in
cross-examination that Doug Smith made a complaint that his tent was cut.
[104] The
cutting of the tent does not appear to have had any particular impact on Mr. Smith.
When asked what he thought about it, his response was that he wondered why
anyone would do that. When pressed further and asked if it changed his
relationship with the police, he answered that it did not; he said he never
really got along with authority figures. The evidence of Constable Stahls
misconduct in respect of Mr. Smiths tent is not sufficient to be the
basis of a Charter breach. In addition, given that Mr. Smith is not
a named party to this proceeding, there is no evidence before me as to whether
or not he is a member of DWS and a claim for damages in respect of Mr. Smith
was not pleaded, I am unable to award any damages. There may be other venues to
seek redress for the damage to Mr. Smiths tent; my conclusion should not
act as an estoppel of such claims.
[105] Constable
Stahl also testified that he suspected one of the pepper sprayed tents was
Denise Eremenkos tent. He sprayed the tent because he had dealt with her on
previous locations at other campsites which were large and had a lot of garbage
around them. I do not condone Constable Stahls conduct; however, Ms. Eremenko
is not a named party to these proceedings, there is no evidence before me that
she is a member of DWS and no claim for damages was made on behalf of Ms. Eremenko.
In the result, I am unable to award damages for the spraying of her tent. There
may be other venues in which to seek redress for the damage to Ms. Eremenkos
tent; my conclusion should not act as an estoppel of such claims.
Use of Fish Fertilizer
[106] The DWS
asserts that one of the tactics employed by the City to displace the Citys
homeless was applying fish fertilizer to an area on Gladys Avenue which was
frequented by the Citys homeless. I find that the limited evidence that fish
fertilizer may have been spread on some homeless encampments fails to meet DWS
evidentiary burden of proving that such conduct occurred.
Spreading Chicken
Manure
[107] In the
early morning of June 4, 2013, City staff arrived at the Happy Tree Camp which
was located along Gladys Avenue. The Happy Tree Camp had been frequented by
some homeless people and had been an ongoing issue in terms of clean up. The
City took the position that the people at the Happy Tree Camp had been given
advance notice that they would need to pack up and leave by being told to leave
approximately 1.5 to 2 hours before chicken manure was spread.
[108] After this
direction, City employees spread chicken manure at the Happy Tree Camp.
[109] Mr. Zurowski
testified that he slept at the Happy Tree Camp with Mr. Caldwell and Nana
Tootoosis on the evening of June 3, 2013. He testified that he had been camping
there since about April or May 2013. He gave evidence that he was awakened by
the noise of trucks and people shouting at him, saying better move.
[110] According
to Mr. Zurowski, the truck carrying the manure was a flat-bed city truck
with 2 feet by 10 feet rails. People were throwing manure out of the truck as Mr. Zurowski
and others were packing their things. Mr. Zurkowski testified that he, Mr. Caldwell
and Mr. Tootoosis had to walk through the chicken manure to get to their
carts. He testified that Mr. Fitzgerald provided no concrete warning prior
to the events, but had stated vaguely in the preceding month that bylaws were
going to make things really uncomfortable for those camped out there.
[111] Mr. Zurowski
testified that he recognised Dwayne Fitzgerald, a Mr. Cross (the person in
charge of garbage for the City) and an APD officer. It appeared that they were
there to watch the spreading of chicken manure where Mr. Zurowski, Nana Tootoosis
and Mr. Caldwell had been sleeping.
[112] Mr. Arden,
the Citys Director of Parks Services authorized the spreading of chicken
manure at the Happy Tree Camp. He testified that he was taking the health of
the citizens of the City into consideration when he endorsed the plan. I reject
this evidence. When asked how he took into account the health of citizens of the
City when approving the plan, Mr. Arden responded they were sleeping on
the curb, putting their head on the curb. He agreed in cross-examination that
he did not see anyone lying on the roadway on June 4, 2013.
[113]
Mr. Dennis Steel, a volunteer with the 5 and 2 Ministry, gave
evidence that as he hurried to assist Mr. Caldwell to pick up his
belongings, there were no efforts by City employees to attend to visibly
disturbed occupants of the encampment, whose clothing and sleeping gear were
soiled. Mr. Steels evidence, which I accept, was that when he arrived at
the camp:
There were uniformed officers
there, a dump truck. I rode up to Normhe was in a state of panic, flailing,
trying to gather his stuff. I kept asking what I could do. He didnt know what
to do. He was in a panic state. His arms were flailing and he was trying to dig
through the bramble. I had to walk through the manure the guy was throwing off
the dump truck. Nana was just sitting there in a daze off to the side. I asked
what I could do and I couldnt understand why no one else was helping. Nana
seemed to be in shock
There looked to be a city worker
in the back of the dump truck. He was shoveling out the last of the manure
He
was standing; he had a shovel and was shoveling it out.
I was more focused on NormI
could see that there was manure everywhere. I was worried about Norm and all
his stuff which was now lost and covered in manure. He was wondering how hed
ever sleep there again.
His belongings were right in it. He had a spot near
the happy tree. The manure was spread all around where they were
his tools, his
bedding, his clothes were all covered.
[114] Mr. Tootoosis
gave evidence in the trial. He testified that he developed a foot infection
after the chicken manure incident. I am not persuaded that the foot infection
suffered by Mr. Tootoosis around the time of this incident has been proven
to be the result of contact with chicken manure. There is no medical evidence that
would support this claim. In addition, the condition of the Happy Tree Camp was
such that there are many equally likely causes of the difficulties that Mr. Tootoosis
suffered in relation to his foot.
[115] The
spreading of the chicken manure at the Happy Tree Camp was disgraceful and
worthy of the Courts disapproval. I am unable, however, to find that it was sufficient
to found a breach of the Charter rights of any individual. In addition,
on the evidence before me I am unable to find that this activity physically
injured a party to this proceeding; therefore, I am unable to award any damages
due to this event.
Destruction
or Disposition of Personal Property
[116] The DWS submits
that the City collected and disposed of personal property belonging to the
Citys homeless and that this was one of the tactics used in responding to the
Citys homeless. In the past, the City has disposed of personal property belonging
to the Citys homeless including tools, medication, clothing, shelter and
tents, sleeping bags, knives, pipes, rain gear, recycling, bicycles, wallets
and identification, along with the containers used to store these things in,
such as shopping carts and garbage bags.
[117] I accept
that for the most part, the Citys general practice was only to dispose of
items at homeless encampments after giving advance notice or obtaining the
consent of people when removing items. Prior to 2014, Mr. Fitzgeralds
experience was that people would be in attendance at the time of a clean up to
indicate what they wanted and if they were not there, he would set aside some
items of value. Starting in 2014, there has been a standard practice of storing
items at the Citys works yard and there was specific evidence of items being
packed up and taken to the works yard where they could be retrieved by the
property owners without charge.
[118] Since
September 2014, the City has also arranged for a weekly refuse clean ups at the
Gladys Avenue Camp. The process involves engaging with the occupants and
ensuring that nothing that they want to keep is thrown away. Ted Main testified
that he first seeks permission to enter the camp and then he goes from tent to
tent asking people what can be thrown away. If someone is not there to give
consent, Mr. Main testified he would wait for next week, and that this
occurred once with Mr. Caldwell. The Gladys Avenue Camp is the only
location where weekly refuse cleanups are arranged by the City.
[119] On the evidence
before me I am unable to find that the disposal of personal property injured a
party to this proceeding. Given that a claim for damages was not pleaded, I am
unable to award any damages for such disposal of personal property. There may
be other venues to seek redress and my conclusions should not create an
estoppel.
The
Failure by the City to Develop Housing
[120] The DWS submits
that the City has failed to take necessary action with respect to the homeless
in the City. I am satisfied that a number of the City employees, most notably Mr. Schmidbauer,
have shown compassion and understanding for the Citys homeless.
[121] Additional housing is being developed in the City, including the 20
bed low barrier shelter for men by Abbotsford Community Services and the temporary
weather shelter being pursued by the Homeless Action Advisory Committee (HAAC).
[122] The City also successfully advocated for the creation of the ACT Team
for the City which began operating in March 2015. The ACT Team is a
multidisciplinary team whose members include a psychiatrist, nurses, social
workers, counselors, an occupational therapist, outreach workers and peer
support workers. The ACT Team provides wrap-around support to its clients,
which are people with severe and persistent mental illnesses that impair their
functioning in community living. The ACT Team operates under standards set by
the Ministry of Health. The ACT Team Coordinator, Joan Cooke, testified that
the team spends about 75 percent of its time in outreach work, visiting people
where they live, providing a wide range of medical, work related, daily living
and peer support services. The ACT Team has 35 rental supplements available for
its clients, presently has 30 clients and, to date, has housed several people
who were homeless.
[123]
It is not for this Court to wade into the political arena to assess the
Citys reaction to the need for housing, including what was described by DWS as
a Dignity Village or services, such as a Sobering Centre, or needle exchange
for its homeless. The scope of the Courts jurisdiction is to address a narrow
issue similar to that which was before Madam Justice Ross in Victoria (City)
v. Adams, 2008 BCSC 1363 [Adams BCSC]. I would phrase it as
follows:
When the number of homeless
people exceeds the number of available shelter beds, does a bylaw that
prohibits homeless people from sleeping in public spaces without securing a
permit from the City and erecting any form of temporary overhead shelter at
night, including tents, tarps attached to trees, boxes or other structure without
securing a permit from the City, violate those persons constitutional rights to
life, liberty and security of the person under s. 7 of the Canadian
Charter of Rights and Freedoms.
VICTORIA (CITY) V. ADAMS
[124] Given the
similarities between the proceedings before me and the proceedings in Adams an
understanding of that case is useful for this proceeding. The findings of fact
made at trial by Ross J. were that there were more people living homeless in
Victoria than there were available shelter spaces, but that the homeless people
were nonetheless prohibited by the Citys Parks Regulation Bylaw and the
Street and Traffic Bylaw from erecting temporary shelter on public
property. Ross J., found that by preventing the claimants from erecting
temporary overnight shelter in public spaces, Victoria had violated their
s. 7 rights.
[125] Ross J.
recognized the limited scope of the remedy sought by the homeless in at paras. 127
128 of her reasons:
[127]
The litigation had its origins in the Tent City
erected in Cridge Park. It is also the case that many of the Defendants deposed
that they wanted to be able to set up and maintain a camp in a park and that
for a variety of reasons they preferred the camp in Cridge Park to
accommodation in shelters. However, in this summary trial application, the
relief sought by the Defendants is not what the AGBC and the City contend is
the right to camp on public property. In other words, the issue of the right to
camp in public spaces in the sense of a right to set up a semi-permanent camp,
like the one established in Cridge Park, is not before the Court.
[128] Rather, the issue is the prohibition on erecting
even a temporary shelter taken down each morning in the form of a tent, tarp or
cardboard box that is manifested in the current Bylaws and operational
policy of the City. In my view, the issue before the Court on this summary
trial application is not an assertion by the Defendants of a right to property
as contended by the AGBC and the City.
[Emphasis added.]
[126]
At para. 191, Ross. J. indicated that
questions as to why people do not use shelters were questions for another day:
There are not enough shelter
spaces available to accommodate all of the Citys homeless; some people will be
sleeping outside. Those people need to be able to create some shelter. If there
were sufficient spaces in shelters for the Citys homeless, and the homeless
chose not to utilize them, the case would be different and more difficult. The
court would then have to examine the reasons why homeless people chose not to
use those shelters. If the shelters were truly unsafe, it might be that it
would still be an infringement of s. 7 to require the homeless to attend
at shelters or sleep outside without their own shelter. However, if the
shelters were safe alternatives, it may not be a breach of s. 7 for the
homeless to be required to make that choice. That, however, is not the case
here, where there is a significant shortfall of shelter spaces.
[127]
Ross J. made the following declarations at para. 239:
(a) Sections
13(1) and (2),14(1) and (2), and 16(1) of the Parks Regulation Bylaw No. 07-059
and ss. 73(1) and 74(1) of the Streets and Traffic Bylaw No. 92-84
violate s. 7 of the Canadian Charter of Rights and Freedoms in that they
deprive homeless people of life, liberty and security of the person in a manner
not in accordance with the principles of fundamental justice, and are not saved
by s. 1 of the Charter.
(b) Sections 13(1) and (2),14(1)
and (2), and 16(1) of the Parks Regulation Bylaw No. 07-059 and ss. 73(1)
and 74(1) of the Streets and Traffic Bylaw No. 92-84 are of no force and
effect insofar and only insofar as they apply to prevent homeless people from
erecting temporary shelter.
[128]
On appeal, Adams BCCA, the Court of Appeal described the issue in
the following terms at para. 1:
This appeal addresses a narrow
issue: when homeless people are not prohibited from sleeping in public parks,
and the number of homeless people exceeds the number of available shelter beds,
does a bylaw that prohibits homeless people from erecting any form of temporary
overhead shelter at night – including tents, tarps attached to trees, boxes or
other structure – violate their constitutional rights to life, liberty and
security of the person under s. 7 of the Canadian Charter of Rights and
Freedoms?
[129]
At para. 28, the Court of Appeal found that the trial judgment was
based on five critical findings of fact:
(a) There
are at present more than 1,000 homeless people living in the City.
(b) The City has at present 141 shelter beds,
expanding to 326 in extreme conditions. Thus hundreds of the homeless have no
option but to sleep outside in the public spaces of the City.
(c) The Bylaws do not prohibit sleeping in public
spaces. They do prohibit taking up a temporary abode. In practical terms this
means that the City prohibits the homeless from erecting any form of overhead
protection including, for example, a tent, a tarp strung up to create a shelter
or a cardboard box, even on a temporary basis.
(d) The expert evidence establishes that exposure to
the elements without adequate protection is associated with a number of
significant risks to health including the risk of hypothermia, a potentially
fatal condition.
(e) The
expert evidence also establishes that some form of overhead protection is part
of what is necessary for adequate protection from the elements.
[130]
At para. 74, the Court of Appeal held that:
Thus, the decision did not
grant the homeless a freestanding constitutional right to erect shelter in
public parks. The finding of unconstitutionality is expressly linked to the
factual finding that the number of homeless people exceeds the number of
available shelter beds. If there were sufficient shelter spaces to accommodate
the homeless population in Victoria, a blanket prohibition on the erection of
overhead protection in public parks might be constitutional. That question is
yet to be determined.
[131] The Court
of Appeal upheld the finding that there was a violation of the claimants
s. 7 rights, however, it varied Ross J.s declaration to refer only to the
Parks Regulation Bylaw and to say that homeless people have the right to
cover themselves with temporary overhead shelter while sleeping overnight in
parks and only when there are not enough shelter spaces available to
accommodate all of Victorias homeless.
[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 persons rights to life, liberty and security of
the person.
POSITIONS OF THE
PARTIES
[133] In its
written submissions the City recognizes that homelessness is a social problem
worthy of concern. The City also acknowledges that there is a population of
persons in the City who at various times have resided on and, in some cases,
continue to reside on City owned lands.
[134] DWS seeks declarations
that the Citys homeless have a Charter right to exist and obtain the
basic necessities of life, including survival shelter, rest and sleep,
community and family, access to safe living spaces and freedom from the risks
and effects of exposure, sleep deprivation and displacement.
[135] DWS
contends that when living and sleeping outside, the erection of a temporary or
improvised shelter is the only way for the homeless to ensure a measure of
security and protection of body and belongings from the wind, the cold, the
heat, and the rain. Some forms of shelter can also provide some security,
protection, and privacy from other people, by lessening the chances that they,
or their belongings, will be seen as an easy target for violence, vandalism, or
theft.
[136] The City responds that it regulates camping with an opportunity for
people to apply to camp in parks, whereas in Victoria there was a complete
prohibition on overnight shelter. DWS contends that the Impugned Bylaws
and the Displacement Tactics are more restrictive as the effect is an absolute
prohibition, preventing the Citys Homeless from camping in any public space
during the day or night, no matter whether shelter space is available or not.
[137] The City contends that this case is distinguishable from the
decision in Adams due to the fact that the shelter provided by the
Extreme Weather Program in place in the City addresses the risks to safety from
cold and hypothermia that were found to exist in Adams BCSC. This is
only so, however, when temperatures fall below zero and emergency shelter is
made available on a temporary basis.
Lawful But Risky Activities
[138] DWS
contends that the Impugned Bylaws relating to homelessness in the City make a lawful
act more dangerous. DWS asserts that the City has a duty to not only refrain
legislating in a way that endangers the health and safety of its citizens, but must
act in a way that respects the barriers faced by its citizens in accessing
shelter, health and safety resources.
[139] In Adams BCSC, Ross J. found that there was
uncontradicted expert evidence that established that exposure to the elements
without adequate shelter, and in particular without overhead protection, can
result in a number of serious and life threatening conditions, most notably
hypothermia. But Ross J. had earlier accepted at paragraph 5 that sleep and
shelter are necessary preconditions to any kind of security, liberty or human
flourishing.
[140] DWS did not lead evidence that established that a specific member of
the Citys homeless faced an increased risk of death or injury as a result of
the Impugned Bylaws, but argues that the evidence in this proceeding
shows that the Impugned Bylaws and Displacement Tactics create a real risk of
death as well as infringe the liberty and security of the person of the Citys
homeless.
[141] DWS
contends that the City cannot follow a regime whereby homeless individuals are
expected to choose between trying to access shelter and housing that is full
or rejects them due to their financial situation, mental health issues or
addiction; and remaining homeless without access to basic necessities or the
liberty to seek out the basic necessities for themselves.
[142] In
Bedford, the Supreme Court of Canada found that prohibitions that impose
dangerous conditions on prostitution, a risky but legal activity, negatively
impacted or limited the applicants security of the person and engaged s. 7
rights.
[143]
At paras. 74 76 the Supreme Court of Canada considered whether
specific sections of the Criminal Code negatively impacted the s. 7
rights of prostitutes. Chief Justice McLachlin, for the unanimous Court,
referred to three possible standards for a causal connection between the laws
and the risks faced by prostitutes:
(1)
“sufficient causal connection”, adopted by the application
judge (paras. 287-88);
(2)
a general “impact” approach, adopted by the Court of Appeal (paras. 108-9);
and
(3)
“active, foreseeable and direct” causal connection.
[144]
At paras. 75 76 and 78, the Chief Justice concluded that:
[75] [
] the “sufficient causal connection”
standard should prevail. This is a flexible standard, which allows the
circumstances of each particular case to be taken into account. Adopted in Blencoe
v. British Columbia (Human Rights Commission), 2000 SCC
44, [2000] 2
S.C.R. 307, and applied in a number of subsequent cases (see e.g. United
States v. Burns, 2001 SCC 7,
[2001] 1
S.C.R. 283; Suresh v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 1,
[2002] 1
S.C.R. 3), it posits the need for “a sufficient causal
connection between the state-caused [effect] and the prejudice suffered by the
[claimant]” for s. 7 to be engaged (Blencoe, at para. 60
(emphasis added)).
[76] A sufficient causal connection standard does not
require that the impugned government action or law be the only or the dominant
cause of the prejudice suffered by the claimant, and is satisfied by a
reasonable inference, drawn on a balance of probabilities (Canada (Prime
Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 21). A
sufficient causal connection is sensitive to the context of the particular case
and insists on a real, as opposed to a speculative, link. Understood in this
way, a sufficient causal connection standard is consistent with the substance
of the standard that the Court of Appeal applied in this case. While I do not
agree with the Court of Appeal that causation is not the appropriate lens for
examining whether legislation — as opposed to the conduct of state actors —
engages s. 7 security interests, its “practical and pragmatic”
inquiry (para. 108) tracks the process followed in cases such as Blencoe
and Khadr.
[78] Finally, from a
practical perspective, a sufficient causal connection represents a fair and
workable threshold for engaging s. 7 of the Charter. This is the port of
entry for s. 7 claims. The claimant bears the burden of establishing this
connection. Even if established, it does not end the inquiry, since the
claimant must go on to show that the deprivation of her security of the person
is not in accordance with the principles of fundamental justice. Although mere
speculation will not suffice to establish causation, to set the bar too high
risks barring meritorious claims. What is required is a sufficient connection,
having regard to the context of the case.
[145] I find
that homelessness is a risky, but legal activity and enforcement of the
Impugned Bylaws heightens the health and safety risks that the Citys homeless
face.
CHARTER ARGUMENTS
[146] DWS submits
that the Impugned Bylaws and the Displacement Tactics violate ss. 2(c),
2(d), 7, and 15 of the Charter, and that those violations are not saved
or justified under s. 1.
[147]
These sections of the Charter provide:
1. The Canadian Charter of
Rights and Freedoms guarantees the rights and freedoms set out in it
subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
(b) freedom of thought, belief,
opinion and expression, including freedom of the press and other media of
communication;
(c) freedom of peaceful assembly;
and
(d) freedom of association.
7. Everyone has the right to life, liberty and security of
the person and the right not to be deprived thereof except in accordance with
the principles of fundamental justice.
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical
disability.
(2) Subsection (1) does not
preclude any law, program or activity that has as its object the amelioration
of conditions of disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour, religion,
sex, age or mental or physical disability.
[148] In seeking
remedies that require the City to have regard to the Charter rights of the
Citys homeless, DWS is not seeking to impose any positive obligations on the
City. Indeed such a remedy was held to be non-justiciable by the Ontario Court
of Appeal in Tanudjaja v. Canada (Attorney General), 2014 ONCA 852 [Tanudjaja
ONCA], affg Tanudjaja v. Canada (Attorney General) [Tanudjaja ONSC],
leave to appeal refused, [2015] S.C.C.A. No. 39. Rather, it asserts that while
the City may have no obligation to provide housing or services to the Citys homeless,
the City does have an obligation to respect the guarantees of freedom of
assembly, freedom of association, life, liberty, security of the person and
equality of all of its citizens, including the Citys homeless.
[149] DWS
contends that the evidence supports the need for more than overnight shelter to
protect oneself from the elements during the day, sleep during the day, work
during the evening and to allow the Citys homeless some consistency of
location in aid of their safety, need for rest and sleep, community connections
and their ability to maintain adequate shelter and contact with outreach
workers and service providers.
Section 2 and
Fundamental Freedoms
[150] I accept
DWS submission that constitutional freedoms function differently than
constitutional rights. The fundamental freedoms enshrined in s. 2 of the Charter
function to create and protect spaces within which one can pursue ones own
ends free from governmental interference, individually and in community with
others.
[151] The
s. 2 freedoms have been specifically designated as fundamental within
the text of the Charter. Thus they provide the foundation from which the
other enumerated rights derive their purpose and meaning, and recognize and
protect the autonomy, dignity, and capacity of every human. The use of the word
freedom rather than right, means that these freedoms do not depend on the
legal or political system for recognition or approval. Once a freely chosen
activity is recognized as falling within the protection of s. 2, the state
has a duty to, at minimum, recognize and not interfere with its free
exercise, limited only by law, regulation, or state action that is reasonable,
proportional, and demonstrably justifiable.
[152]
In Mounted Police Association of Ontario v. Canada (Attorney General),
2015 SCC 1 [MPAO] at para. 47, the Supreme Court of Canada recently
affirmed that courts must interpret the fundamental freedoms, like all Charter
rights, purposively, generously, and contextually, by:
having regard to the larger
objects of the Charter …, to the language chosen to articulate the …
freedom, to the historical origins of the concepts enshrined, and where
applicable, to the meaning and purpose of the other specific rights and
freedoms with which it is associated within the text of the Charter.
Section
2(b)
[153] Although s. 2(b) is not relied upon by DWS, the jurisprudence
that has considered this subsection is instructive with respect to subsections
2(c) and 2(d).
[154]
In Montréal (City) v. 2952-1366 Québec Inc.,
[2005] 3 S.C.R. 141 [Montreal], the Court set out a three part analysis
for the application of section 2(b) when dealing with public spaces:
[56] Does
the Citys prohibition on amplified noise that can be heard from the outside
infringe s. 2(b) of the Canadian Charter? Following the
analytic approach of previous cases, the answer to this question depends on the
answers to three other questions. First, did the noise have expressive
content, thereby bringing it within s. 2(b) protection? Second,
if so, does the method or location of this expression remove that
protection? Third, if the expression is protected by s. 2(b), does
the By-law infringe that protection, either in purpose or effect?
[155]
In considering if the location of government
owned property removes the protection afforded by s. 2(b), the Court in Montréal
further explained at para. 74:
The basic question with respect to expression on
government-owned property is whether the place is a public place where one
would expect constitutional protection for free expression on the basis that
expression in that place does not conflict with the purposes which s. 2 (b) is intended to serve, namely (1) democratic
discourse, (2) truth finding and (3) self-fulfillment. To answer this question,
the following factors should be considered:
(a) the historical or actual function of the place;
and
(b) whether other aspects of the
place suggest that expression within it would undermine the values underlying
free expression.
[156] I accept that the historical and actual functions of parks are
leisure and recreational activities by the public, while in the case of
highways they are the movement of people and goods. Public parks and highways
are not lands that have historically been used for people to pursue the
necessities of life or reside, nor are they generally designed for camping uses.
Certainly the highways are not so designed.
Section 2(c)
[157] DWS
contends that s. 10 of the Parks Bylaw is a direct and clear
infringement of s. 2(c), in both purpose and effect, and certainly
contrary to a broad and generous approach to the fundamental freedom of
peaceful assembly, as it restrains any and all gatherings of people, of any
kind and for whatever purpose, in all public spaces in the City.
[158] The
freedom of peaceful assembly in s. 2(c) is a direct protection and
guarantee of access to and use of public spaces. These include the public
parks, squares, sidewalks, roadways, bridges, and buildings around which public
life unfolds. Notwithstanding its importance in a free and democratic society,
there is almost no case law on the nature or scope of the freedom of peaceful
assembly in Canada.
[159] DWS
asserts that taken together, the Impugned Bylaws and Displacement Tactics
violate the Citys homeless s. 2(c) rights by attempting to decrease
their public visibility, and by restricting or prohibiting their right to
engage in necessary and legitimate non-violent activities in public spaces
which they cannot perform elsewhere, having very little property of their own.
[160] Permitting parks to be used for residential purposes could conflict
with the assembly by other members of the community for various expressive
activities.
[161] While DWS
argues that the presence of the homeless in the Citys public spaces, with
their belongings throughout the day, and in and under shelters overnight, is
not a matter of inconvenience, but one of necessity, I do not accept that
s. 2(c) is engaged by such a presence. The Impugned Bylaws affect the
s. 2(c) rights of all of the Citys citizens equally. All are restrained from
accessing and using public property at the same times and with respect to the
same activities.
[162] Viewed
purposively, s. 2(c) protects the freedom of everyone to be in, access,
use, and enjoy all public spaces for any and all non-violent activities and
purposes. In my view it would be an unreasonable distortion of the freedom of
peaceful assembly to use it to ground a Charter breach of DWS members. It
is not their right of assembly that is in issue, but rather their right to the
use of public space for a purpose for which it is not generally intended. If
such a right exists, it must be found in another subsection of s. 2 of the
Charter, or in Sections 7 or 15 thereof.
Section 2(d)
[163] DWS next argues
that the Impugned Bylaws and Displacement Tactics violate the fundamental
freedoms of the Citys homeless under s. 2(d). The freedom of association
in s. 2(d) protects the choice to join with others, in spaces both public
and private, recognizing the empowerment that comes from joining together in
community and in pursuit of common goals.
[164] The BCCLA
expands this argument by asserting that the prohibition on the homeless from
taking simple steps to protect themselves through association, in circumstances
where there is no practicable alternative, is a significant interference with
their dignity and independence. It contends that in standing between the
individual and his or her ability to take shelter or protect his or herself by
gathering or associating, the state also weakens or destroys the ability of
affected persons to participate in democratic society.
[165]
The BCCLA cites R.B. v. Children’s Aid Society of Metropolitan
Toronto, [1995] 1 S.C.R. 315 [R.B.] and comments by Mr. Justice
La Forest relating to the concept of liberty to the role of individuals in a
democratic society . I do not consider the reference to have application to the
circumstances in issue before me. In R.B., Mr. Justice La Forest stated
at para. 121:
At bottom, I think liberty
means the ordinary liberty of free men and women in a democratic society to
engage in those activities that are inherent to the individual.
[166] With
respect, the excerpt relied upon by the BCCLA must be taken in context, and not
read as the creation of a broader Charter freedom. Its context includes
the observations of La Forest J. at para. 80:
The above-cited cases give us an important indication of the
meaning of the concept of liberty. On the one hand, liberty does not mean
unconstrained freedom; see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R.
486 (per Wilson J., at p. 524); R. v. Edwards Books and Art Ltd., [1986]
2 S.C.R. 713 (per Dickson C.J., at pp. 785-86). Freedom of the individual
to do what he or she wishes must, in any organized society, be subjected to
numerous constraints for the common good. The state undoubtedly has the right
to impose many types of restraints on individual behaviour, and not all
limitations will attract Charter scrutiny. On the other hand, liberty does not
mean mere freedom from physical restraint. In a free and democratic society,
the individual must be left room for personal autonomy to live his or her own
life and to make decisions that are of fundamental personal importance. In R.
v. Morgentaler, [1988] 1 S.C.R. 30, Wilson J. noted that the liberty
interest was rooted in the fundamental concepts of human dignity, personal
autonomy, privacy and choice in decisions going to the individual’s fundamental
being. She stated, at p. 166:
Thus, an aspect of the respect for human dignity
on which the Charter is founded is the right to make fundamental personal
decisions without interference from the state. This right is a critical
component of the right to liberty. Liberty, as was noted in Singh, is a phrase
capable of a broad range of meaning. In my view, this right, properly
construed, grants the individual a degree of autonomy in making decisions of
fundamental personal importance.
[167]
The s. 2(d) freedom has mainly been
developed in the context of collective bargaining rights, and was recently
summarized in MPAO as follows at para. 66:
In summary, s. 2(d), viewed
purposively, protects three classes of activities: (1) the right to join with
others and form associations; (2) the right to join with others in the pursuit
of other constitutional rights; and (3) the right to join with others to meet
on more equal terms the power and strength of other groups or entities.
[168] The Citys
homeless have not been prevented from joining with those with whom they choose
to associate. Indeed, they have formed DWS. These proceedings are evidence of
the fact that the Citys homeless have joined to pursue what they assert to be
their constitutional rights, and indeed, they have been assisted by DWS, who
was granted public interest standing to participate in the proceedings. I am
not persuaded that the ability of the Citys homeless to join with others to
meet on more equal terms the power and strength of other groups or entities has
been infringed. The evidence before me shows that many of the Citys homeless
have come together from time-to-time to live in small groups in public spaces
for various reasons. As with DWS submissions respecting s. 2(c), it is not
the right of association of the Citys homeless that is in issue, but rather
their right to the use of public space for a purpose for which it is not
generally intended. If such a right exists, it must be found in another section
of the Charter.
Section 7 and Principles of Fundamental Justice
[169] The Impugned Bylaws do not interfere with the ability of people to
engage in democratic participation or public life more generally. People who
may be homeless are able to use public spaces to the same extent as other
members of the community. None of the witnesses who gave evidence at the trial
of these actions expressed any concerns with being denied democratic
participation.
[170] DWS
contends that at a constitutional minimum, the protection of the lives, liberty
and security of the Citys homeless require that they have a right to obtain
the necessities of life which it contends includes that following:
(a) warmth
and adequate protection from the elements, including Survival Shelter;
(b) rest and sleep;
(c) community and family connection;
(d) effective access to safe living spaces;
(e) freedom from physical, mental
and psychological health risks and effects of exposure to the elements, sleep
deprivation, chronic threatened or actual displacement and the isolation and
vulnerability related to such displacement.
[171] In order for a principle to be recognized as a principle of
fundamental justice, three criteria must be met: (1) the principle must be a
legal principle; (2) there must be a consensus that the principle is
fundamental to the way in which the legal system ought fairly to operate; and
(3) the principle must be identified with sufficient precision to yield a
manageable standard against which to measure deprivations of life, liberty or
security of the person: Canadian Foundation for Children, Youth and the Law,
2004 SCC 4 at para. 8.
[172] A legal principle is a principle within the inherent domain of the
judiciary and not within the realm of general public policy (R v. Malmo‑Levine,
2003 SCC 74 [Malmo-Levine] at para. 112 to 114).
International Instruments
[173]
DWS argued that a number of international instruments (e.g., The
Universal Declaration of Human Rights, and the International Covenant on
Economic, Social, and Cultural Rights) and foreign authorities were relevant to
the s. 7 analysis required in this proceeding. Similar submissions were
made to Ross J. in Adams. Ross J. held that while international
instruments can inform the interpretation of the Charter, they do not
form part of the domestic law. In Kazemi Estate v. Islamic
Republic of Iran, 2014 SCC 62 the Supreme Court of
Canada accepted that the international instruments were useful interpretative
aids, but, writing for the majority, Justice Lebel cautioned against equating
the commitments in international instruments with principles of fundamental justice.
At para. 150, he, writing for the majority, explained as follows:
[
] not all commitments in
international agreements amount to principles of fundamental justice. Their
nature is very diverse. International law is ever changing. The interaction
between domestic and international law must be managed carefully in light of
the principles governing what remains a dualist system of application of
international law and a constitutional and parliamentary democracy. The mere
existence of an international obligation is not sufficient to establish a principle
of fundamental justice. Were we to equate all the protections or commitments in
international human rights documents with principles of fundamental justice, we
might in effect be destroying Canadas dualist system of reception of
international law and casting aside the principles of parliamentary sovereignty
and democracy.
Foreign Authorities
[174] I find that the foreign authorities relied upon by DWS for the
proposed new principle of fundamental justice are of no real assistance. While
the African cases cited by DWS such as In Government of the Republic
of South Africa and Others v. Grootboom and Others, (CCTII/00) [2000] ZACC
19, 2001 (1) SA 46; Susan Waithera Kariuki v. The Town Clerk, Nairobi City
Council, Petition 66 of 2010 (2011) KLR 1; and Social and Economic
Rights Action Centre (SERAC) and Another v. Nigeria, (2001 AHRLR 60
conclude that the homeless have a right to housing, they do so relying on
provisions in their constitutions or other legislation which provide such
rights. No such right is provided for in the Charter.
[175] The two
European decisions relied upon by DWS, Case of Buckley v. The United Kingdom
(Application no. 20348/92), ECHR, Strasbourg (29 September 1996) and International
Covenant on Civil and Political Rights: Georgopoulos et al. v. Greece, CCPR
/C/99/D/1799/2008 (29 July 2010), both turned on specific legislative
protections which have no equivalent in this proceeding. Similarly, the
authorities from the United States cited by DWS are far from consistent, but
rely principally upon the Constitution of the United States and various rights
under state legislation. As with the other foreign authorities relied on by
DWS, I find that the American authorities to be of no real assistance as a
result of different statutory regimes which provide for different rights.
Analysis of Section 7
[176] I accept that the framers of the Canadian constitution made a
deliberate choice to not include property and related economic rights in the Charter:
see P. Hogg, Constitutional Law of Canada,
at pp. 381383. The ability to pursue the necessities of life on
government property has not previously been accepted as fundamental to the
operation of a fair legal system.
[177] There has been no recognition by courts in Canada that the Charter
creates positive obligations in relation to social and economic interests (see Tanudjaja).
Although DWS referred to the requirements to provide the necessaries of life
under s. 215 of the Criminal Code, this is confined to certain
defined relationships, such as between a parent and child (see R. v. S.J.,
2015 ONCA 97).
[178]
In Adams BCSC at para. 143, Ross J. referred to paras. 201
202 in the decision of Mr. Justice Taylor in Federated Anti-Poverty
Groups of BC v. Vancouver (City), 2002 BCSC 105, where Taylor J. addressed
the meaning to be given the s. 7 “life” provision in a case that
dealt with challenges to a City of Vancouver bylaw that regulated panhandling.
Included in the passage was the following reference to Martha Jackmans
article, “The Protection of Welfare Rights Under the Charter”
(1988) 20 Ottawa Review 257 at 326:
… [A] person who lacks the basic means of subsistence has a
tenuous hold on the most basic of constitutionally guaranteed human rights, the
right to life, to liberty, and to personal security. Most, if not all, of the
rights and freedoms set out in the Charter presuppose a person who has moved
beyond the basic struggle for existence. The Charter accords rights which can
only be fully enjoyed by people who are fed, are clothed, are sheltered, have
access to necessary health care, to education, and to a minimum level of
income. As the United Church’s brief to the Special Joint Committee declared:
“other rights are hollow without these rights”.
Even if some of
the Impugned Acts could be described as resulting in a deprivation under
s. 7, they may not amount to a breach of s. 7.
[179] In Trang v. Alberta (Edmonton Remand Centre), 2007 ABCA 263,
leave to appeal denied, the Alberta Court of Appeal considered whether vans
used to transport prisoners within Alberta resulted in breaches of s. 7 of
the Charter because they were in a state of disrepair. In finding that
no Charter breach had occurred, the Court emphasized that the principles
of fundamental justice were not engaged for all acts of government employees:
[35] A finding of a breach of s. 7 depends on the
identification of an impact on the life, liberty or personal security of the
applicant by state action. If that impact arose from state action within the
sphere of a fundamental principle of justice, and that state action was
arbitrary or irrational, then a breach of the s. 7 right could be shown
.Section 7 does not enable the review for rationality of all
government action that has an impact on life, liberty or personal security. It
only protects against infringements of those interests once some separate principle
on which our system of justice is grounded has been identified.
[38] The
principles of fundamental justice relate primarily to the procedures and
methods by which the legal rights of the citizens are engaged. Section 7 does
not engage any general obligation to design government programs only after
adverting to the interests of all those potentially affected. The argument that
government activity that overlooks or minimizes some interest is arbitrary,
and therefore not in accordance with the principles of fundamental justice, is
an unwarranted extension of the scope of s. 7. The appellants accurately
note that s. 7 has primarily been used to review legislation, not
government actions or policies. This is a reflection of the core reach of
s. 7. Those few cases that have reviewed government action for compliance
with s. 7 have concerned state action that directly engages assumptions
on which our system of justice is grounded.
[180] I agree, however, that positive measures taken to protect oneself
from the elements are better considered under security of the person
consideration, rather than as a matter of liberty.
[181] I am not persuaded on the evidence in these proceedings that the
right to obtain the basic necessities of life is a foundational principle
underlying the guarantees of s. 7 of life, liberty and security of the
person.
[182]
Liberty does, however, protect the right to make fundamental
personal choices free from state interference. Security of the person
encompasses, among other things, a notion of personal autonomy involving …
control over ones bodily integrity free from state interference and it is
engaged by state interference with an individuals physical or psychological
integrity, including any state action that causes physical or serious
psychological suffering, Carter v. Canada (Attorney General), [2015] 1
S.C.R. 331 [Carter] at para. 64
[183]
In order to establish a breach of section 7 of
the Charter, DWS must satisfy the Court that:
(1) there is a deprivation of life, liberty or security of the
person caused by state action; and
(2) such deprivation is contrary to the
principles of fundamental justice.
See Carter at para. 55.
[184] The burden is on the claimant to establish the breach for both
stages (see Bedford at para. 78).
[185]
In Carter, the Court concluded that the
right to life was engaged in a narrow set of circumstances, such as where there
was evidence that state action increased an individuals risk of death:
[62] This Court has most
recently invoked the right to life in Chaoulli v. Quebec (Attorney General),
2005 SCC 35, [2005] 1 S.C.R. 791, where evidence showed that the lack of timely
health care could result in death (paras. 38 and 50, per Deschamps
J.; para. 123, per McLachlin C.J. and Major J.; and paras. 191 and
200, per Binnie and LeBel JJ.), and in PHS, where the clients of Insite
were deprived of potentially lifesaving medical care (para. 91). In each
case, the right was only engaged by the threat of death. In short, the case law
suggests that the right to life is engaged where the law or state action
imposes death or an increased risk of death on a person, either directly or
indirectly. Conversely, concerns about autonomy and quality of life have
traditionally been treated as liberty and security rights. We see no reason to
alter that approach in this case.
[186] Concerns
about autonomy and quality of life are treated as liberty and security of the
person issues. Underlying both of these rights is the concern for the
protection of individual autonomy and dignity.
[187] A persons
s. 7 liberty interest is engaged when there are statutory duties to not
loiter in or be near certain areas such as school grounds, playgrounds, public
parks and bathing areas. (R. v. Heywood, [1994] 3 S.C.R. 761 [Heywood].)
[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 Citys 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 ones self in circumstances where there
is no practicable alternative shelter. The Impugned Bylaws and Displacement
Tactics are alleged to impact the Citys homeless s. 7 rights because their
effect is to continually displace the Citys 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
Citys 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 societys interest within the s. 7 analysis is only relevant when
elucidating a principle of fundamental justice.
[192] In Bedford,
the Court held that arbitrariness, overbreadth and gross disproportionality are
directed against two different evils. On the one hand, the norms of
arbitrariness and overbreadth address the absence of a connection between the
infringement of rights and what the law seeks to achieve. Gross
disproportionality on the other hand, ensures that even where the impact on the
s. 7 interest is connected to the purpose of the law, this impact cannot
be so severe that it violates our fundamental norms.
Arbitrariness
[193] Arbitrariness
describes the situation where there is no real connection on the facts between
the effect and the object of the law or actions. For example, in Canada
(Attorney General) v. PHS Community Services Society, 2011 SCC 44 [PHS],
the Supreme Court found that the Minister of Healths decision not to extend a
safe injection sites exemption from drug possession laws was arbitrary. The
purpose of drug possession laws was the protection of health and public safety,
and the services provided by the safe injection site actually contributed to
these objectives. Thus, the effect of not extending the exemption was contrary
to the objectives of the drug possession laws.
[194]
The principle of arbitrariness was summarized in
Bedford, where the Court stated the following:
[98] Arbitrariness was used to describe the situation
where there is no connection between the effect and the object of the law. In Morgentaler,
the accused challenged provisions of the Criminal Code that
required abortions to be approved by a therapeutic abortion committee of an
accredited or approved hospital. The purpose of the law was to protect womens
health. The majority found that the requirement that all therapeutic abortions
take place in accredited hospitals did not contribute to the objective of
protecting womens health and, in fact, caused delays that were detrimental to
womens health. Thus, the law violated basic values because the effect of the
law actually contravened the objective of the law. Beetz J. called this
manifest unfairness (Morgentaler, at p. 120), but later cases
interpreted this as an arbitrariness analysis (see Chaoulli v. Quebec
(Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, at para. 133,
per McLachlin C.J. and Major J.).
[99] In Chaoulli, the applicant challenged a
Quebec law that prohibited private health insurance for services that were
available in the public sector. The purpose of the provision was to protect the
public health care system and prevent the diversion of resources from the
public system. The majority found, on the basis of international evidence, that
private health insurance and a public health system could co-exist. Three of
the four-judge majority found that the prohibition was arbitrary because
there was no real connection on the facts between the effect and the objective
of the law.
[100] Most
recently, in PHS, this Court found that the Ministers decision not to
extend a safe injection sites exemption from drug possession laws was arbitrary.
The purpose of drug possession laws was the protection of health and public
safety, and the services provided by the safe injection site actually
contributed to these objectives. Thus, the effect of not extending the
exemption that is, prohibiting the safe injection site from operating was
contrary to the objectives of the drug possession laws.
[195] DWS
asserts that the Impugned Bylaws in the Parks Bylaw and Street and
Traffic Bylaw are arbitrary because their objects are not rationally
connected to their effects. The law is clear that in determining arbitrariness,
the question is whether the effect of the law is rationally connected to the
object or purpose of the law or action.
[196]
As Lamer C.J. said in Committee for the Commonwealth of Canada v.
Canada, [1991] 1 S.C.R. 139:
… The very nature of the relationship existing between
citizens and the elected government provides that the latter will own places
for the citizens benefit and use, unlike a private owner who benefits
personally from the places he owns. The quasi-fiduciary nature of the
governments right of ownership was indeed clearly set out by the U.S. Supreme
Court in Hague v. Committee for Industrial Organization, supra,
at pp. 515-16:
Wherever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out of
mind, have been used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions. Such use of the streets and public
places has, from ancient times, been a part of the privileges, immunities,
rights, and liberties of citizens.
[197] Although
public property is held 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.
[198] I reject
the submission of DWS that there is no rational connection between holding parks
land for the pleasure, recreation or community use of all of the Citys citizens
and absolute evictions of the Citys homeless from any City land. While the
Citys homeless are part of the citizenry, for whom the City holds its parks
property, they are not the only citizens entitled to the use of that property.
I find that the City must be permitted to balance the needs of all of its parks
users.
[199] In Malmo‑Levine the Court rejected an arbitrariness
challenge to a prohibition against the recreational consumption of marihuana
holding (at para. 136) that The prohibition is not arbitrary but is
rationally connected to a reasonable apprehension of harm. In this case,
the City has at least a reasonable apprehension that harm will flow from the
unregulated use of public property; therefore, I conclude that the Impugned
Bylaws are not arbitrary.
Overbreadth
[200] An
overbroad law is a law that is broader than necessary to accomplish its purpose.
The overbreadth inquiry asks whether a law that takes away rights in a way that
generally supports the object of the law, goes too far by denying the rights of
some individuals in a way that bears no relation to the object.
[201]
In Bedford, the Supreme Court described
the overbreadth doctrine in the following terms:
[112] Overbreadth deals with a law that is so broad in
scope that it includes some conduct that bears no relation to its
purpose. In this sense, the law is arbitrary in part. At its core,
overbreadth addresses the situation where there is no rational connection
between the purposes of the law and some, but not all, of its impacts.
For instance, the law at issue in Demers required unfit accused to
attend repeated review board hearings. The law was only disconnected from its
purpose insofar as it applied to permanently unfit accused; for temporarily
unfit accused, the effects were related to the purpose.
[113] Overbreadth allows courts to recognize that the law
is rational in some cases, but that it overreaches in its effect in others.
Despite this recognition of the scope of the law as a whole, the focus remains
on the individual and whether the effect on the individual is rationally
connected to the laws purpose. For example, where a law is drawn broadly and
targets some conduct that bears no relation to its purpose in order to make
enforcement more practical, there is still no connection between the purpose of
the law and its effect on the specific individual. Enforcement
practicality may be a justification for an overbroad law, to be analyzed under
s. 1 of the Charter.
[117] Moving forward,
however, it may be helpful to think of overbreadth as a distinct principle of
fundamental justice related to arbitrariness, in that the question for both is
whether there is no connection between the effects of a law and its objective.
Overbreadth simply allows the court to recognize that the lack of connection
arises in a law that goes too far by sweeping conduct into its ambit that bears
no relation to its objective.
[202] In Adams
BCSC, Ross J. applied the test in Heywood for overbreadth and the
Court of Appeal approved of the use of the test that she applied. If the State,
in pursuing a legitimate objective, uses means which are broader than is
necessary to accomplish that objective, the principles of fundamental justice
will be violated because the individuals rights will have been limited for no
reason. The effect of overbreadth is that in some applications the law is
arbitrary or disproportionate.
[203] I conclude
that the Impugned Bylaws that deny the Citys homeless overnight access to public
spaces without permits and prevent them from erecting temporary shelters
without permits are overbroad.
Gross Disproportionality
[204] Gross
disproportionality describes state actions or legislative responses to a
problem that are so extreme as to be disproportionate to any legitimate
government interest. This principle is infringed if the impact of the
restriction on the individuals life, liberty or security of the person is
grossly disproportionate to the object of the measure. As with overbreadth, the
focus is not on the impact of the measure on society or the public, which are
matters for s. 1, but on its impact on the rights of the claimant.
[205]
Ms. Wilm, Mr. Caldwell and Mr. Clause all spoke about the
negative impact on their sense of wellbeing due to being continually displaced
and evicted when they were homeless. Ms. Wilm testified that displacement
negatively impacts her ability to find housing. She stated that:
Were constantly having to move.
Were constantly searching for a place to move to. We had five appointments to
go look at places that we couldnt even look at because we had to get
everything out [of our campsite], otherwise we lose everything.
[206] State-induced
serious psychological pain and stress is a breach of an individuals right to
security of the person. (Chaoulli v. Quebec (Attorney General), 2005 SCC
35, [2005] 1 S.C.R. 791; New Brunswick (Minister of Health and Community
Services) v. G. (J.), [1999] 3 S.C.R. 46; Blencoe; Inglis v.
British Columbia (Minister of Public Safety), 2013 BCSC 2309 at paras. 395
and 397; R. v. Morgentaler, [1988] 1 S.C.R. 30 at 55 56 and 60.)
[207] In order to advance a valid claim based on security of the person, a
claimant must establish that: (1) they are subject to state imposed harm; and
(2), the harm is serious. (Blencoe at paras. 55 57.)
[208]
In Bedford, the Court discussed the
threshold that a claimant had to meet in order to establish that the state was
responsible for an alleged deprivation. On the question of causality, the Court
again cautioned against speculation:
[76] A sufficient causal
connection standard does not require that the impugned government action or law
be the only or the dominant cause of the prejudice suffered by the claimant,
and is satisfied by a reasonable inference, drawn on a balance of probabilities
(Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 21).
A sufficient causal connection is sensitive to the context of the particular
case and insists on a real, as opposed to a speculative, link.
[209] I
find that this constant movement of the homeless exacerbated their already
vulnerable positions, as it inhibited the ability of the service providers who
endeavoured to help the Citys homeless to actually locate them and provide
help. I thus find that the evidence supports a finding that
the Impugned Bylaws have had a serious effect on the psychological or physical
integrity of the City’s homeless.
[210]
In PHS at para. 133, Chief Justice McLachlan wrote:
Insite saves lives. Its
benefits have been proven. There has been no discernable negative impact on the
public safety and health objectives of Canada during its eight years of
operation. The effect of denying the services of Insite to the population it
serves is grossly disproportionate to any benefit that Canada might derive from
presenting a uniform stance on the possession of narcotics.
[211] At para. 113 in PHS, Chief
Justice McLachlin stated that: The availability of exemptions acts as a safety
valve that prevents the CDSA from applying where such application would
be arbitrary, overbroad or grossly disproportionate in its effects.
[212] While there is nothing improper about narrowing the ambit of a
prohibition through a discretionary safety valve, I reject the Citys
contention that it would be impossible to enact a law that dealt with the
highly variable personal situation of the homeless, or that the safety valve in
ss. 17 and 30 of the Parks Bylaw ensures that there is an administrative discretion to prevent this
from happening, and which could itself be subject to review by the courts.
[213] Mr. Steel
also described how he fears for the safety of the Citys homeless when they are
driven further from site and into locations where they are not easily found. This
makes it more difficult to provide services to the Citys homeless. Pastor
Wegenast also testified, and I accept his view, that the result of repeated
displacement often leads to the migration of homeless individuals towards more
remote, isolated locations as a means to avoid detection. This not only makes
supporting people more challenging, but also results in adverse health and
safety risks.
[214]
Dr. Gordon William MacEwan, who was accepted as an expert in
psychiatry or mental illness for the homeless or those precariously housed
observed that:
The degree of psychiatric
illness and substance abuse within the subjects who are in these studies as
well as my clinical population is severe. The difficulties in their day-to-day
functioning are extreme. Many of these individuals are not able to maintain
basic levels of daily living activities, they are often living in very
deteriorated living situations and are often not able to attend to the most
basic of their needs including adequate nutrition, healthcare, and safety. In
the Hotel Study 70% of the individuals were infected with Hepatitis C and 18%
were infected with HIV. Any one of these areas of difficulty, on its own, would
be considered very serious for an individual. The fact is that many of these
individuals suffer from multi-morbid illness including physical health
problems, severe psychiatric problems such as schizophrenia and bipolar
disorder, and severe substance abuse which often consumes the person’s
day-to-day activities in terms of either finding drugs, obtaining money to
purchase drugs or using drugs.
[215] The City
submitted the report of Dr. Shaoyhhua Lu which was critical of Dr. McEwans
opinon. Dr. Lu, like Dr. MacEwan, was qualified as an expert in psychiatry
or mental illness, but discounted Dr. MacEwans views because Dr. MacEwan
did not conduct full psychiatric workups on any of the Citys homeless. I did
not find Dr. Lus critique of Dr. MacEwans views to be of
assistance. While I am unable to accept the application of Dr. MacEwans
comments to any specific homeless person in the City, I accept that they likely
apply to at least some of the Citys homeless.
[216] Dr. Christy
Sutherland is an expert in addiction treatment. I accept as a general
proposition her evidence that [h]omelessness leads to worse outcomes for those
with addiction, and addiction contributes to unstable housing and is a barrier
to housing and Addiction causes underlying changes to neurocircuitry
evidence demonstrates that drugs of abuse change the structure of the brain as
well as the content of brain cells. Thus, the brain’s ability to function is
impaired.
[217] Dr. Paul
Sobey is also an expert in addiction medicine, who was called by the City to
rebut the views expressed by Dr. Sutherland. His evidence did not dispute
the general statements by Dr. Sutherland that I have mentioned.
[218] Dr. Belanger
was qualified as an expert in Aboriginal homelessness in Canada. He provided
expert evidence regarding the prevalence of Aboriginal people in urban homeless
populations and the unique experience of homelessness on Aboriginal people.
[219] I am
satisfied that the evidence led by DWS establishes that continual displacement
of the Citys homeless causes them impaired sleep and serious psychological
pain and stress and creates a risk to their health.
[220] The sustainable use of publicly owned property requires that there
be some constraints on the way in which it is used. The evidence establishes
that activities of people camping in City parks can and has caused damage to
that property, with the consequences being shifted onto the City and ultimately
taxpayers. In these circumstances, it cannot be said that the Impugned Bylaws
bear no relation to their objectives.
[221] Sections 14 and 17 of the Parks Bylaw, together limit the erection of any structures in City parks, and camping
or the taking up of a temporary abode in parks without permit. While the
regulations expressly grant a discretion to the General Manager of Parks,
Recreation and Culture (in the case of s. 17) or the City Council (in the
case of s. 14, and acting pursuant to s. 30 of the Parks Bylaw)
to give an exemption from the Parks Bylaw, this is of no practical
benefit to the Citys homeless: they are unable to avail themselves of the
discretionary procedure provided for in the Parks Bylaw.
[222] While I accept that the choice to erect an outdoor shelter without
permit, when there are other accessible options, is not a fundamental personal
choice engaging dignity concerns, I have found that there are, at present,
insufficient viable and accessible options for all of the Citys homeless.
[223] Although it is strictly speaking correct that the Impugned Bylaws
are not directed at group encampments as compared to individual encampments,
the effect of their application affects the homeless far more than it affects
others. That said, the decision to erect a shelter outside, whether
individually or in a group, if there are other viable and accessible options, cannot
justify permitting the Citys homeless to sleep and erect shelters in public
spaces as a fundamental personal choice engaging dignity concerns.
[224] I conclude
that the effect of denying the Citys homeless access to public spaces without
permits and not permitting them to erect temporary shelters without permits is
grossly disproportionate to any benefit that the City might derive from
furthering its objectives and breaches the s. 7 Charter rights of the
Citys homeless.
Section 15
[225] DWS argues
that the Impugned Bylaws and the Displacement Tactics discriminate against the
Citys homeless, perpetuating and exacerbating substantive inequality and thus
violating s. 15 equality guarantees and imposing a disproportionate and
discriminatory burden on them, and imposing a direct discriminatory impact on the
Citys homeless because they are targeted as a discrete minority on the basis
of their personal characteristics which have led them to be unhoused. DWS also
contends that the Impugned Bylaws and the Displacement Tactics violate s. 15
by discriminating against the Citys homeless by preventing them from obtaining
the basic necessities of life in public spaces, and imposing a disproportionate
and discriminatory burden on homeless persons who have disabilities, who are
Aboriginal, and/or who are impacted by a synthesis of factors leading to their
homelessness, including their disabilities, racial backgrounds, and their
economic and social status.
[226]
The foundation for the test to establish a breach of s. 15 was
discussed in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R.
143 and Law v. Canada (Minister of Employment and Immigration), [1999] 1
S.C.R. 497. The current two part framework for s. 15 used by courts today
is as set out by the Court in R v. Kapp, 2008 SCC 41 at para. 17:
(1) Does
the law create a distinction based on an enumerated or analogous ground?
(2) Does the distinction create a
disadvantage by perpetuating prejudice or stereotyping?
[227] A central
issue to be determined in a s. 15 case is whether the impugned laws or
state actions violate the norm of substantive equality. The Supreme Court of
Canada has accepted that the past focus on a comparator group approach has led to
a formal treat likes alike analysis, which detracts from the focus of
s. 15 substantive equality and reaffirmed the supremacy of the pursuit
of substantive equality.
[228] Subsequent
to Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396,
courts have analysed s. 15 without the use of comparator groups; Quebec
(Attorney General) v. A., 2013 SCC 5 [Quebec v. A.]; and Kahkewistahaw
First Nation v. Taypotat, 2015 SCC 30.
[229] Courts
have recognized claims for discrimination which are based on multiple grounds,
requiring an assessment of the impact of the interaction or intersection
between these grounds. The barriers faced by the Citys homeless vary from
person to person, but they share important intersections between disability,
addiction and Aboriginal ancestry that have driven them towards, and for some,
perpetuated their state of homelessness. It is the confluence of those factors
together with the fact of the persons homeless status that DWS asserts to underpin
its claim.
[230]
In Quebec v. A, Madam Justice Abella, citing Janzen v. Platy
Enterprises Ltd., [1989] 1 S.C.R. 1219, clearly stated at para. 354 that
heterogeneity within the claimant group does not defeat a claim of
discrimination:
discrimination does not
require uniform treatment of all members of a particular group. It is
sufficient that ascribing to an individual a group characteristic is one factor
in the treatment of that individual. If a finding of discrimination required
that every individual in the affected group be treated identically, legislative
protection against discrimination would be of little or no value.. It is rare
that a discriminatory action is so bluntly expressed as to treat all members of
the relevant group identically. In nearly every instance of discrimination the
discriminatory action is composed of various ingredients with the result that
some members of the pertinent group are not adversely affected, at least in a
direct sense, by the discriminatory action. To deny a finding of discrimination
in the circumstances of this appeal is to deny the existence of discrimination
in any situation where discriminatory practices are less than perfectly
inclusive. It is to argue, for example, that an employer who will only hire a
woman if she has twice the qualifications required of a man is not guilty of
sex discrimination if, despite this policy, the employer nevertheless manages
to hire some women.
[231]
I agree with the rejection of the argument that
homelessness is an analogous ground
as concluded by Mr. Justice Lederer in Tanudjaja ONSC at paras. 129
130 and 134 and 135:
[129] The reliance of the applicants on Falkiner misses a
fundamental point. In Falkiner, the analogous ground was the receipt of social
assistance. This is not, strictly speaking, immutable. The identity of the
people who are eligible to collect these benefits will change as the vagaries
of life impact on the individuals involved, for good or ill. The fact remains
that, at any moment in time, it is possible to identify those who are
collecting social assistance. In the circumstances of this Application, it is
not possible to identify who is homeless. As I have already observed,
homelessness is not, for the purposes of this Application, restricted to those
without homes. Three of the four individual applicants have homes. It may be
that what is being referred to as the homeless includes those without
affordable, adequate and accessible housing. What is adequate housing? Presumably,
this depends on the circumstances of the individuals involved. What is adequate
for a single mother with two children (the applicant, Jennifer Tanudjaja) is
different from what would be adequate for a family of six. The difference would
be more pronounced if two of the four children in the family of six were
disabled and even more pronounced if one of the children required a wheel chair
(the applicant, Ansar Mahmood). The need of the wheelchair introduces a need
for accessibility. It does not seem out of line to suggest that a determination
of what is adequate housing may be a matter to be decided on an individual
basis.
[130] Being without adequate housing is not a personal
characteristic (race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability) or a fact that can be determined on objective
criteria (social assistance recipient, marital status,
Aboriginality-residence (off-reserve band members), employment status, and
citizenship). There will be a subjective component that arises from the circumstances
of the individual and what they and others believe is adequate or
accessible. The lack of adequate or accessible housing is not a shared
quality, characteristic or trait.
[134] Homelessness is not a term that, in the context of
this case, can be understood. Without an understanding of the common
characteristics which defines the group, it cannot be established as an
analogous ground under s. 15(1) of the Charter. Poverty or economic status, which is seemingly
the only common characteristic, is not an analogous ground.
[136] Homelessness
is not an analogous ground under s. 15(1) of the Charter. The
Application does not propose to protect discreet and insular minorities. It
is an attempt to take disparate and heterogeneous groups and treat them as an
analogous ground under s. 15 (1) of the Charter. Such groups do not
obtain this protection.
[232]
DWS contends that the Citys homeless are being discriminated against on
the basis of the following grounds:
(a) Disability;
(b) Race the evidence establishes that a
disproportionate number of the Citys Homeless are Aboriginal and that their
experience of homelessness may be unique as a result of their cultural history;
and,
(c) An analogous ground consisting of the
intersection of the grounds of disability and race with the state of being
homeless.
in
the following two ways:
(a) Through the Impugned Bylaws, which have a
disproportionate impact on the Citys homeless by preventing them from fairly
accessing public; and
(b) Through
the Displacement Tactics, which directly discriminate against the Citys
homeless by targeting them while they are in public spaces.
[233] I find
that the evidence in this case establishes that at least some of the Citys homeless
have mental and/or physical disabilities. I find that some suffer from
addictions which, as I have commented above, I accept as medical conditions, or
a component of disability, see, for example PHS.
[234] Although,
s. 15 requires equal treatment of disparate groups, I am not persuaded
that an infringement of any of DWS members s. 15 Charter rights
has been made out.
[235] The Impugned Bylaws are regulatory prohibitions, subject to
exemptions, and are neutral on their face. While there has been historic
mistreatment of Aboriginal people and the disabled, it does not follow that
they, as compared to other groups, have been prejudiced in some manner that is
connected to the Impugned Bylaws. Nor is the enforcement of the Impugned
Bylaws against the homeless treatment that differs from the enforcement of the
Impugned Bylaws against anyone else.
[236] While the
effect of the Impugned Bylaws may have a greater impact on those who are
homeless, that is not because they are being treated any differently than those
who are not homeless, disabled or due to their racial backgrounds. DWS has not established that the Impugned Bylaws have the effect of perpetuating disadvantage or prejudice. I am not
persuaded that an infringement of any of DWS members s. 15 Charter rights
has been made out on the evidence before me.
Section
1 Analysis
[237]
Having found that the Impugned Bylaws breach the rights
in s. 7, the focus must now move to whether the breach can be justified
under s. 1 of the Charter. It is difficult to justify a
s. 7 violation. The rights protected are fundamental and not easily
overridden by competing social interests. And it is hard to justify a law that
runs afoul of the principles of fundamental justice and is thus inherently
flawed.
[238] The analytical
framework for a s. 1 analysis is well-known:
(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 furthered 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?
Prescribed
by Law
[239] The burden is on the City to justify the infringement. There is no
issue that the provisions of the Impugned Bylaws are prescribed by law. The
Impugned Bylaws were duly enacted by the City according to powers now conferred
on it by the Community Charter, S.B.C. 2004, c. 26.
Pressing
and Substantial Need
[240] Similarly, no party takes issue with the proposition that the
Impugned Bylaws address a pressing and substantial need: the need of the City
to manage lands it owns for the benefits of its citizens. The activities of
those who camp on lands owned by the City have, in fact, caused the very harms
the Impugned Bylaws attempt to prevent by appropriating public space to the
exclusion of others, constructing structures on public lands, damaging public
lands, creating nuisances on public lands, and creating unsightliness on public
lands.
Rational
Connection
[241] Although argued, I do not accept that there
is no rational connection between the prohibitions against erecting permanent
or semi-permanent encampments in parks without permit, and the objectives of
the Parks Bylaws. This is the same prohibition that Ross J. was dealing
with in Adams BCSC and she found that there was a rational connection there
(Adams BCSC at para. 204). I have come to the same conclusion in these
proceedings: there is a rational connection between the prohibitions in the
Impugned Bylaws and the objectives the Impugned Bylaws purport to meet.
Minimal
Impairment
[242] The City submits that the Impugned Bylaws are minimally impairing
within the meaning of s. 1 of the Charter. I accept that the City
must regulate the use of its parks, streets and other public property, without
stipulating every form of permissible or impermissible conduct based upon the
personal circumstances of each individual who might be subject to regulation,
or every situation that might arise.
[243] In determining what alternatives exist towards reaching the City’s
legislative goals, I have considered the approaches used by other jurisdictions
that were referred to in the evidence. Those include the following other
approaches identified in the report of Dr. Blomley which show more
impairing responses than as seen in the approaches used by the City:
(a) the use of ticketing and
enforcement under the Safe Streets Acts of British Columbia and Ontario;
(b) the use of “trespass exclusion”
zones in Seattle that apply at all times for a designated duration of time;
(c) the designation of exclusionary “red
zones” for people released on bail;
(d) bans under the Anti-Social Behaviour Act
of the United Kingdom on persons using public space that can be enforced by
police order;
(e) restrictions on the use of streets by
squeegee kids;
(f) the
“criminalization” of homeless persons through the use of aggressive
ticketing and incarceration upon failure to pay fines.
[244] The fact that the City has chosen less impairing means does not mean
that the means that it has chosen are consistent with s. 1 of the Charter.
[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 Citys
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 Citys 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.
CONCLUSIONS
The Citys Claim for Damages Against Mr. Shantz
[248] The City
seeks damages against Mr. Shantz in respect of the activities that took
place at Jubilee Park in 2013.
[249] Mr. Shantz
did not give evidence at trial. The City read into evidence at trial some of Mr. Shantz
evidence from his examination for discovery. This evidence included his
admission that he was one of the organizers of the tent city at Jubilee Park,
as a result of the dumping of chicken manure at the Happy Tree Avenue Camp.
[250] The Jubilee Park tent camp was a protest camp in response to the
treatment of the Citys homeless and considered as such by the City. It was designed at least in part to pressure the City into establishing a
“dignity village” and occupied by a number of
people identified as being homeless and in need of shelter, housing and services.
[251] The
following questions and answers were included in the evidence read into the
record at trial from Mr. Shantzs examination for discovery:
Q And tell me about that. How is it that you
became aware that the wooden structure was going to be erected?
A My — my involvement in outreach familiarity with
this population of people caused many instances of loved ones looking for
daughters, looking for mothers, looking for sons, for reasons from “Please
come home” to “We got a bed in a treatment centre.” And so
people from different places would come to the area and they — people would
tend to point them toward me and I would help them locate people. One such
event or one such circumstance — like that caused a degree of compassion
towards the struggle that people on the streets were having
and people were, no pun intended, coming out of the woodwork to offer different
types of support all the way from blankets to what can we do to help make them
safer? So one particular individual brought somebody that had bigger pockets,
and then he did, and they said “What can we do to help?” And I said
“The problem is, is that they keep kicking us out everywhere and there’s
nowhere for everybody to go.” And one of the constants of what has become
known as “the Abbotsford shuffle” is that you get evicted from —
well, even that particular parking lot. Roy has been evicted from one corner of
the parking lot to the other corner of the parking lot to the other corner of
the parking lot to the other corner. So it stood to reason that we may as well
do a – – another Abbotsford shuffle from the park into the parking lot to be in
compliance with the injunction and to go to another location.
If you remember
the weather was very, very cold. Heavy, heavy wind. Even some snow and stuff
like that. So the logistical complications of creating a safe environment on a
flat tarmacked surface is very problematic. So I had some thoughts with attaching to the concrete barriers for
structural strength and the gentleman that had larger pockets said “What
if I prefab the walls and made a wall…” — I said “We got no
money.” He says “Take — “
Q Sorry. Who was the gentleman with larger
pockets?
A All I know is Paul.
Q Paul. Where did you meet him?
A I met him on the day of this conversation
that we’re discussing.
Q Okay.
A The gentleman who brought him I was more
familiar with, because he’s associated with an AA/NA type of organization and
repeatedly he would come to the neighbourhood looking for so and so or looking
for so and so.
Q Sorry. What is AA/NA?
A Alcoholics Anonymous, Narcotics Anonymous. So
it’s like a religious based — religious abstinence based programming. So his
enthusiasm to want to help caused him to bring somebody who had deeper pockets.
And this gentleman said “What if I put a wall up, wall up, wall up?”
I said “We got no money.” He said that he can take it out of the
ingredients. I said “It would be perfect.” He said “Done.”
Q Do you recall when this occurred when you had
this meeting?
A Days before the situation, the injunction to
move. The whole thing transpired within days.
Q So when you say days are you talking about 2
days? 10 days?
A I would believe it
would be more like let’s say 5, 6, 7, 8. I have no record of this, but
logistically there was a bit of time purchasing material, prefabbing, doing
stuff like that I know it wasn’t overnight. I know it wasn’t 2 or 3, but 7
maybe. .
[252] After the
erection of the tent camp in Jubilee Park, the Defendants were present in
Jubilee Park from time to time between one hour after sunset and one hour
before sunrise the following day without prior permission from the City under
the Parks Bylaw. On November 25, 2013, the City
demanded by service of a notice that the Jubilee Park occupants remove the tent
camp from Jubilee Park and cease carrying out certain specified activities in
Jubilee Park, with a deadline of November 27, 2013. The Jubilee Park occupants
did not comply with the notice. Mr. Shantz was served with the notice, and
upon being served said bring it on and see you in court. Mr. Shantz
was aware in advance that the Structure would be erected at the parking lot in
Jubilee Park.
[253] The City submits that an adverse inference should be drawn that he
was involved in arranging for it to be erected at the parking lot. I decline
to draw such an inference. Mr. Shantz was examined for discovery and could
have been called by the City as an adverse witness at trial.
[254] The City submits that its response to the occupation of Jubilee Park
was reasonable and justifiable bearing in mind the deliberate nature of the
trespass, the impacts the occupation had on the City and the use of public
space by others, and the provocative escalation of the situation by the
erection of the Structure.
[255] I find
that Mr. Shantz trespassed on the City property described as Jubilee Park.
While damages for trespass could restore the plaintiff to as nearly as possible
to the same position it would have been in had the trespass not occurred, the
trespass complained of was not by Mr. Shantz alone.
[256] I have
concluded that the City has not established its claim for damages against Mr. Shantz.
While Mr. Shantz agreed that the City spent the funds it alleges, he did
not admit the reasonableness of those expenditures, or his responsibility for
them.
[257] I find
that the City has not established that the expenditures claimed were reasonably
related to the Jubilee Park encampment or what portion, if any, resulted from Mr. Shantzs
conduct, and accordingly, I dismiss the Citys claim for damages against Mr. Shantz.
Permanent Injunction
Sought by the City
[258] I decline
to order the permanent injunction sought by the City. To begin with, it would
be inconsistent with the conclusions I have reached above.
[259] In
addition, if granted, it could result in arrest and prosecution pursuant to
s. 127 of the Criminal Code for anyone found breaching the order.
Though the injunction would arguably impact the Citys homeless most
profoundly, the vagueness of its language means that it could apply to an
overly broad, unspecific group of people and an equally wide ranging spectrum
of activity.
Declaratory Relief
Sought By DWS
[260] On behalf
of the Citys Homeless, DWS seeks, in part, remedies pursuant to s. 24 and
s. 52 of the Charter:
a) A declaration pursuant to s. 24(1) of
the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982,
c. 11, that the rights of the City’s homeless to exist and obtain basic
necessities of life, including:
(i) warmth and adequate protection from the
elements, including Survival Shelter;
(ii) rest
and sleep;
(iii) community
and family connection;
(iv) effective
access to safe living spaces;
(v) freedom from physical, mental and
psychological health risks and effects of exposure to the elements, sleep
deprivation, chronic threatened or actual displacement and the isolation and
vulnerability related to such displacement;
are
each aspects of life, liberty and security of the person guaranteed by s. 7
of the Charter;
(b) In addition and in the alternative, a
declaration pursuant to s. 24(1) of the Charter that Impugned [Bylaws]
and/or the actions of the City in enforcing the bylaws and in engaging in the
Displacement Tactics, constitutes discrimination under s. 15 of the Charter,
based on mental disability, physical disability, race, national original,
ethnic origin, colour and/or homelessness;
(c) In addition and in the alternative, a
declaration pursuant to s. 24(1) of the Charter that the rights of
the City’s homeless to peacefully assemble and associate, including in publics
paces, are aspects of the freedom of association and assembly secured by
sections 2(c) and 2(d) of the Charter;
(d) A declaration pursuant to s. 52 of the Constitution
Act, 1982, that the Impugned [Bylaws] are of no force or effect to the
extent that they are applied to the City’s homeless as they violate sections 2,
7 and 15 of the Charter;
(e) In
addition and in the alternative, a declaration pursuant to s. 24(1) of the
Charter that the actions of the City in enforcing the bylaws and
engaging in the Displacement Tactics are unconstitutional as they breach
sections 2, 7 and 15 of the Charter.
[261] Section 24(1) of the Charter provides that:
Anyone whose rights or freedoms,
as guaranteed by this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the court considers
appropriate and just in the circumstances.
[262] Section 52(1) of the Charter provides that:
The Constitution
of Canada is the supreme law of Canada, and any law that is inconsistent with
the provisions of the Constitution is, to the extent of the inconsistency, of
no force or effect.
[263] Section 24(1)
provides remedies for governmental acts that violate the Charter while
52(1) of the Charter provides remedies for unconstitutional laws. In
R. v. Ferguson, 2008 SCC 6, the Supreme Court explained that when
s. 24(1) is read in context, it is apparent that the intent of the framers
of the Constitution was for it to function primarily as a remedy for
unconstitutional government acts under the authority of legal regimes that are
accepted as fully constitutional, i.e., where s. 52(1) does not
apply. It is possible, however, for litigants to seek both a s. 24(1) and a
s. 52(1) remedy for an unconstitutional law and governmental acts under
that law.
[264] The City asserts that there was no evidence at trial as to why
s. 24(1) relief should be granted to DWS when DWS is not the party which
suffered the breach. The City submits that there was no evidence as to whether
or not the individual witnesses who were subject to the Displacement Tactics
were members of DWS, were unable to pursue the individual actions, and wanted
the relief granted to DWS with respect to what happened to them.
[265] Section 24(1)
is a provision that exists to provide remedies. There is no principled basis
upon which a litigant with public interest standing must necessarily be
foreclosed from relief for state action under s. 24(1). This is certainly
true in circumstances where, as here, DWS is made up of individuals who assert
that their Charter rights have been infringed. As stated in the Standing
Decision in this matter, DWS is the only viable entity that can challenge the
Citys actions; a finding reflective of the Court of Appeal in Adams BCCA,
which acknowledged that due to the extremely limited means of the litigants,
requiring a multiplicity of proceedings does not provide a reasonable remedy.
[266] DWS seeks
declaratory relief with direction as to the content of the rights of the Citys
homeless and submits that the Court may impose any timeline or conditions
deemed appropriate and just in the circumstance. DWS does not seek an
unconstrained right to use public space, only the recognition of the rights of
people who require those spaces for shelter and a balancing of those rights
with the interests of other users of those public spaces.
[267] As I have
explained above, I am not persuaded that the s. 2(c) or 2(d) Charter rights
of any of DWS members have been infringed by either the Impugned Bylaws or the
Displacement Tactics, and I therefore decline to make the declaration sought
that the rights of the City’s homeless to peacefully assemble and associate,
including in public spaces, are aspects of the freedom of association and
assembly secured by sections 2(c) and 2(d) of the Charter, and dismiss
the application for this declaration.
[268] Adams demonstrates
that the right to shelter oneself can be necessary to both life and health.
There, that right was predicated on the right to sleep and rest, the necessity
of which was implicit and went unchallenged in the analysis. Ross J. specifically
found that the City of Victoria could not manage its land in a way that
interfered with a homeless citizens ability to keep him or herself safe and
warm.
[269] I am not prepared to make the broad s. 24(1) declaration sought
with respect to the content of the basic necessities of life under s. 7.
I accept the guidance found in Doucet‑Boudreau v. v. Nova Scotia
(Minister of Education), [2003] 3 S.C.R. 3, where the Court expressed at
paragraph 34 that:
in the context of
constitutional remedies, courts must be sensitive to their role as judicial
arbiters and not fashion remedies which usurp the role of the other branches of
governance
.
[270] In my view, the broad declaration sought by DWS with respect to the
right to the basic necessities of life would be to effectively read in
substantive rights under the Charter and thus usurp the role of
legislative branch.
[271] The
obligation to provide housing for the homeless, if it exists, is not a burden
that the City must discharge in these proceedings. I therefore decline to make
a declaration that the rights of the City’s homeless to exist and obtain basic
necessities of life, and dismiss the application for such a declaration. As I have explained above, I am unable to accept that an
infringement of any of DWS members s. 15 Charter rights has been
made out. I therefore decline as well to make the s. 24(1) declaration
sought that Impugned Bylaws and/or the actions of the City in enforcing the Impugned
Bylaws and in engaging in the Displacement Tactics, constitute discrimination
under s. 15 of the Charter, based on mental disability, physical
disability, race, national original, ethnic origin, colour and/or homelessness.
[272] I am also
not persuaded that the provisions in ss. 10 or 13 or the definition of
park in s. 2 of the Consolidated Parks Bylaw, or Subsection
2.7(e) or the definition of “Highway or Other Public Place” in
Schedule A of the Good Neighbour Bylaw, or subsections 2.1(d), (h) and
(j) of the Street and Traffic Bylaw infringe on the Charter rights
or freedoms of any DWS members, and I therefore decline to make the
declarations sought by DWS to that effect.
[273] Some of
the Citys 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 citys 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 Citys 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 Citys homeless and whether
certain areas should be designated as environmentally sensitive, while ensuring
that space exists in which the Citys 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 Citys 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.
[281] The needs of those who are truly homeless in the City are immediate.
For that reason, I decline to suspend the order that will flow from my reasons
for judgment for any period of time to provide the City time to draft new
regulations to respond to such an order.
[282] I also decline to limit the order that will flow from my reasons for
judgment to only those who do not have any other options. I regard such a
limitation as unworkable, particularly given the inability of the parties to even
agree on who is and who is not homeless.
DISPOSITION
[283] I decline to order the permanent injunction sought by the City in
respect of Jubilee Park.
[284] I dismiss
the Citys claim for damages against Mr. Shantz.
[285] I declare, pursuant to s. 52 of the Constitution Act, 1982,
that the 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.
The declaration is limited to overnight stays between 7:00 p.m. and 9:00 a.m.
the following day.
[286] I decline to make any other declaratory relief sought by the DWS.
The Honourable Chief Justice Hinkson
APPENDIX A
Consolidated
Parks Bylaw, 1996
Bylaw No. 160-95
2. Interpretation
[ ]
Park includes public parks, playgrounds, driveways,
boulevards, beaches, swimming pools, community centres, golf courses, play
fields, linear parks, including hiking, biking and riding trails, buildings,
and other public places under the custody, care, management, and jurisdiction
of the Council;
10. Parades/Assemblies
No person shall in any park:
(a) take part in any procession, march, drill, performance,
ceremony, concern, gathering, or meeting;
(b) make a public address or demonstration, or do any other
thing likely to cause a public gather or attract public attention; or
(c) operate any amplifying system or loud speaker
without the prior written permission of the Council. In
determining whether to grant its permission, Council may consider the matters
set out in Section 30.
13. General Prohibition
No person shall:
(a) obstruct the free use and enjoyment of any park by any
other person; or
(b) violate any Bylaw, rule, regulation, posted notice, or
command of the Council or a person in control of, or maintaining or
supervising, any park. In addition to any other penalty under this Bylaw, any
person who violates this Section may be removed from the park.
14. Erecting Structures
No person shall erect, construct, or build, or cause to be
erected, constructed, or built, in or on any park any tent, building, shelter,
pavilion, or other construction whatsoever without the prior written permission
of the Council. In determining whether to grants its permission, Council may
consider the matters set out in Section 30.
17. Curfew/Camping
No person shall:
(a) enter, occupy, or be present in any park at any time
between one hour after sunset on one day and one hour before sunrise the
following day, with the exception of any of the outdoor park facilities with
lights listed in Schedule D of this Bylaw while such facility is open for use
and the lights operating; or (B/L 1923-2010)
(b) take up temporary abode or camp overnight in or on any
parts of a park without the prior permission of the General Manager. In
determining whether to grant permission, the General Manager may consider the
following:
(i) the impact such activity will have on other members of
the public;
(ii) the impact such activity will have on the environment
and around the subject park;
(iii) public safety issues; and
(iv) the nature, duration, and size of the activity.
Consolidated
Street and Traffic Bylaw, 2006
Bylaw No. 1536-2006
Restrictions on Use Permit
Required
2.1 No person shall:
[ ]
(d) place, construct or maintain a loading platform, skids,
rails, mechanical devices, buildings, signs, or any other structure or thing,
on a Highway;
[ ]
(h) obstruct or in any way create an obstruction to the flow
of Motor Vehicle, cycle or pedestrian traffic on a Highway;
[ ]
(j) place or permit to be placed any fuel, lumber, earth,
topsoil, sand, gravel, rocks, merchandise, chattel or ware of any nature, or
any object on a Highway;
or carry out any other temporary or permanent Highway Use,
unless that person first:
(i) makes application for, and obtains from the City, a
Permit under this Bylaw for the proposed Highway Use; and
[ ]
Schedule A – Definitions
Highway includes:
(a) every Highway within the meaning of the Highway Act,
(b) every road, street, lane or right-of-way designed or
intended for or used by the general public for the passage of Vehicles, and for
the purposes of Part III of this Bylaw includes every private place or
passageway to which the public, for the purpose of the parking or servicing of
Vehicles, has access or is invited;
Good
Neighbour Bylaw
Bylaw No. 1256-2003
Use of Highways
2.7 No person shall:
[ ]
(d) camp or erect a tent or other camping facilities on a
Highway or Other Public Place;
Schedule A – Definitions
“Highway or Other Public Place” includes every
street, road, land, boulevard, sidewalk, lane, bridge, viaduct and any other
way open to public use and. any park, building, conveyance, private place or
passageway to which the public has, or is permitted to have access or is invited