Homelessness and the Charter: Victoria v Adams

In a case that is being heralded as a major victory for anti-poverty advocates, and which may potentially redefine s. 7 Charter poverty law jurisprudence, the BC Supreme Court Ruled last week that a Victoria municipal by-law prohibiting sleeping in parks runs contrary to the Charter of Rights and Freedoms.

Victoria (City) v Adams, 2008 BCSC 1363 began as a civil injunction against a group of homeless people who had erected a tent city in one of Victoria’s urban parks, requiring them to vacate pursuant to a city bylaw making it an offence for anyone to “take up a temporary abode overnight,” or “erect or construct, or cause to be erected or constructed, a tent, building or structure, including a temporary structure such as a tent, in a park.” Arguing that emergency shelter beds in the city of Victoria were insufficient for the number of homeless, and pointing to the potential health hazards of sleeping outside exposed to the elements, a number of homeless people brought a challenge to the bylaw as contrary to their rights to life, liberty and security of the person.

In a lengthy 112-page judgment, Madame Justice Ross of the BC Supreme Court agreed, striking down the by-laws. The prohibition on seeking shelter in public implicated the life, liberty and security of the person: “The uncontradicted expert evidence establishes 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.” Because the city’s emergency shelters were insufficient to house the entire homeless population, some homeless people were invariably forced to seek public shelter in a way that exposed them to significant health and safety risks.

Justice Ross went on to find that the deprivation to life, liberty and security of the person violated two principles of fundamental justice, namely: they were arbitrary and overbroad. The purposes of the prohibition were to ensure that use of public spaces was open to all members of society, to protect the natural environment from damage, and to address public health and safety concerns. But the specific ban on setting up a tent in a park, failed to target any of these purposes. In short, the total ban on sleeping in parks overshot the legislative mark, running afoul of the constitution.

Of note in the decision is the fact that Justice Ross stopped short of declaring that s.7 mandates a positive duty on the government to provide adequate housing. Citing the majority and dissent decisions in Gosselin v Quebec (Attorney General), [2002] 4 SCR 429, Justice Ross reiterated that the possibility for s. 7 being expanded to include positive rights had not been foreclosed, but that in the present case, the applicants were not seeking an order that would require such a finding. Instead, she likened the situation to that of Chaoulli v Quebec (Attorney General), [2005] 1 SCR 791 in which the prohibition on accessing private health care was found to violate the Charter. It was the state’s deprivation of a right which was problematic, not the failure to provide it.

Looking past the prima facie ruling, though, the case stands for a much bolder proposition, which to date has not received recognition by Appellate courts: that the regulation of public space must seriously take into account the needs of society’s most marginalized citizens. Previous similar efforts at defending the rights of squeegee kids, for example, against the inconvenience of the more gentrified public have invariably failed. The issue is increasingly becoming the subject of debate especially in BC where the 2010 Olympics is being criticized for trampling on the rights of the poor. Likewise, courts in Ontario and BC will soon be asked to rule on whether the criminalization of public prostitution runs contrary to ss. 7 and 15 of the Charter. The BC Attorney General has already indicated his intention to appeal the Adams decision to the Court of Appeal, so this country may well be in for a dramatic change in how the Charter views the relationship between governments and the poor.