Gimme Shelter – Court dismisses City’s Appeal

Victoria (City) v. Adams, 2009 BCCA 563

By
Grant Murray
Barrister & Solicitor
gjm@murdymcallister.com
December 11, 2009

The Court of Appeal for British Columbia has unanimously upheld a lower court decision that found that City of Victoria bylaws violated the rights of the homeless by preventing them from erecting temporary shelters in municipal parks. 

In November 2008, our firm published a newsletter on the B.C. Supreme Court decision that was the subject of the appeal.  Anyone seeking a detailed discussion of that decision should refer to our website at www.murdymcallister.com. 

This case has, of course, attracted considerable media attention, but is a relatively narrow decision that does not appear to have a broad effect on municipal authority. The three judge panel of the Court of Appeal described the overall issue quite narrowly: 

“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?

A key point to note is that an appeal is not a new trial.  New evidence is typically not admitted on an appeal and the parties to an appeal are generally stuck with the evidence at the trial.  In this case the key findings of fact at the trial were as follows: 

(1)        There were more than 1,000 homeless people living in Victoria.

(2)        Victoria had 141 shelter beds, expanding to 326 in extreme conditions.  Thus hundreds of the homeless had no practical option but to sleep outside in the public spaces of the City.

(3)        The Bylaws do not prohibit sleeping in public spaces.  They do prohibit taking up a temporary abode.  In practical terms this meant that the City prohibited 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.

(4)        The expert evidence established that exposure to the elements without  adequate protection is associated with a number of significant risks to health including hypothermia, a potentially fatal condition.

(5)        The expert evidence also establishes that some form of overhead protection is part of what is necessary for adequate protection from the elements.

On appeal, no party argued that the trial judge made any palpable and overriding error in the findings of fact.  While the City sought to admit “new” evidence, the court ruled that some of the “new” evidence was available at the time of the trial and should have been presented then.  The Court also ruled that some of the other “new” evidence would not alter its conclusions about the facts outlined above.  An important lesson here is that parties should ensure that the facts they want to rely on are put before the court during the trial, not the appeal

Several intervenors, including U.B.C.M. and the B.C. Civil Liberties Association were also involved in the appeal and made a variety of submissions both for and against the appeal. 

The City’s principal argument was that by declaring the bylaw provisions of no force or effect, the trial judge had improperly intruded into the City’s legislative jurisdiction to make complex policy decisions concerning the allocation of scarce parkland and other public resources.  The City argued that the effect of the decision was to require the City to regulate the use of parks for camping or other living accommodation, which elected officials have not chosen to include in the initiatives undertaken to deal with the City’s serious homelessness problem.

The basic legal findings of the Court of Appeal were as follows:

(a) Just because a legal issue also raises political issues does not mean the court cannot adjudicate and decide the issue.  Legal issues concerning the Charter of Rights and Freedoms are often political, but must be decided by the court in any event.

(b) The trial judge’s decision did not grant the homeless a freestanding constitutional right to erect shelter in public parks or “the right to camp on public property”.  The finding of unconstitutionality was expressly linked to the factual finding that the number of homeless people exceeded 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 constitutionally valid.

(c) The trial judge’s decision that the Bylaws violated the rights of homeless people under s. 7 (which guarantees the right to life, liberty and security of the person) did not require  the City to provide adequate alternative shelter, or to take any positive steps to address the issue of homelessness.  The decision only requires the City to refrain from legislating in a manner that interferes with the s. 7 rights of the homeless.  That is not to say the decision will not, from a practical point of view, require the City to take some action in response.  In this case, the City was already adopting new regulations regarding the overnight use of public parks, and the creation of additional shelters or alternative housing.  Governments generally have to take some action to comply with the requirements of the Charter, which can involve some expenditures of public funds or legislative action, or both. 

While the appeal was largely unsuccessful, the City did succeed on one point.  The Court of Appeal held that the trial judge erred in finding that the bylaws in question were arbitrary, or without a rational connection to the legislative goals. That is, there was a connection between the bylaws’ prohibition on shelter and maintaining the environmental, recreational and social benefits of urban parks.  The Court of Appeal also found, however, that this error did not alter the outcome of the appeal.

The Court of Appeal essentially upheld the trial court’s Order that the bylaws in question were:

Inoperative insofar and only insofar as they apply to prevent homeless people from erecting temporary overnight shelter in parks when the number of homeless people exceeds the number of available shelter beds in the City of Victoria.

Interestingly, the Court of Appeal also granted the City the right to apply to the BC Supreme Court for a determination of whether the bylaws no longer breached the Charter of Rights.  Presumably, this could happen if there were more homeless shelter spaces than homeless people in the City.  Obviously, any local government that has more homeless persons than shelter spaces may not be able to prevent the homeless from erecting temporary overnight shelter in at least one of its parks.

The final issue of significance was costs. At trial the judge ordered that the City pay the other parties costs as special costs, or an amount close to what had actually been spent. Special costs are rarely awarded, and usually accompany a finding that one of the parties had acted in a way that deserved some type of rebuke.  The Court of Appeal suggested considering the following when determining whether special costs should be awarded to a successful public interest litigant:

(a)      The case involves matters of public importance that transcend the immediate interests of the named parties, and which have not been previously resolved;

(b)      The successful party has no personal, proprietary or pecuniary interest in the outcome of the litigation that would justify the proceeding economically;

(c)      As between the parties, the unsuccessful party has a superior capacity to bear the costs of the proceeding; and

(d)      The successful party has not conducted the litigation in an abusive, vexatious or frivolous manner.

Based on these factors, the Court upheld the award of special costs and also ordered special costs for the Appeal.  This should be regarded as a warning to local governments that they are not immune to an award of special costs in so-called “public interest” litigation.

There is no word yet on whether the City will seek a further appeal before the Supreme Court of Canada.