Dealing With Tent Cities and Grow Ops

 

           This bulletin reports on the recent decisions of the B.C. Supreme Court in Victoria v. Adams et al and Arkinstall v. City of Surrey.  Each decision is lengthy and complex.  They are significant to local governments because of their respective subject matters; the Adams case will affect how local governments address the use of parks and other public spaces by the homeless, while Arkinstall will affect the manner in which local government inspections are untaken, especially when those doing the inspections are concerned for their safety.  Beyond their substantive outcomes, the decisions are noteworthy because they highlight the importance of the choice of procedures used to enforce an enactment, and show the unintended consequences that may result from those procedures.

          

Victoria v. Adams et al

 

            In City of Victoria v. Adams et al (2008 BCSC 1363), Madam Justice Ross of the B.C. Supreme Court held that parts of the City’s parks and streets bylaws could not be used to prevent the homeless from erecting temporary shelters in City parks because the provisions were contrary to section 7 of the Canadian Charter of Rights and Freedoms (the “Charter of Rights”).  Section 7 provides that everyone has the right to “life, liberty and security of the person”. 

 

Background to the Decision

 

            The case began with the City obtaining an interlocutory injunction to restrain a group of about 70 people from occupying about 20 tents in a park.  The Defendants then filed a defence alleging that the parts of the bylaws relied on breached section 7 of the Charter of Rights.  Any enactment (including a bylaw) that is inconsistent with the Charter of Rights is of no force or effect to the extent of the inconsistency.  After an unsuccessful attempt by the City to discontinue the proceeding, the case shifted its focus to the City’s “operational policy” used to enforce the bylaws.  This allowed people to sleep in parks, but prohibited the use of tarps, tents, boxes and other “overhead structures”, except for a “simple, individual, nonstructural, weather repellent cover (such as a sleeping bag, blanket, other soft material) that is removed once a person is awake”.  Likewise, the City’s streets bylaw provided that no person could encumber or obstruct any street or public place without a permit. 

 

The Section 7 Analysis

 

            The starting point for determining whether there has been a breach of section 7 is to determine whether governmental action results in a deprivation of life, liberty or security of the person.  Madam Justice Ross noted evidence about the number of homeless in the Victoria area (more than 1,000), the number of shelter beds (141 permanent shelter beds that can be increased to 326 in extreme weather conditions), and the health impacts on people living outdoors without shelter.  While the City argued that the source of any deprivation was the condition of being homeless, and not the bylaws, Madam Justice Ross concluded that there was sufficient “state action” to engage section 7, and that enforcing the bylaws interfered with the section 7 rights of the Defendants to the extent that they were exposed to health risks through the prohibition against temporary overhead shelter.

 

            The next step was to determine if an interference with section 7 rights was contrary to principles of fundamental justice.  Madam Justice Ross concluded that the provisions were overly broad because there are “any number of less restrictive alternatives that would further the City’s concerns” such as requiring the overhead protection be taken down each day, and creating specific areas in parks where sleeping was not permitted, rather than prohibiting it outright.  She also concluded that the City’s concern about harm caused to parks was “arbitrary” in the sense that it was not related to the specific conduct that was prohibited. 

 

            Madam Justice Ross then considered if the section 7 breach could be “saved” by section 1 of the Charter of Rights, which provides that the rights and freedoms in the Charter of Rights are subject to such “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.  The onus was on the City to meet section 1.  In approaching this matter, Madam Justice Ross used a proportionality test established in other cases which considers the following:

 

(a)   Are the measures designed to achieve the objective without being arbitrary, unfair or based on irrational considerations;

(b)   Do the measures impair the right or freedom in question “as little as possible”; and

(c)   Is there proportionality between the effects of the measures that limit the right or freedom, and the objective identified?

 

            Madam Justice Ross accepted that preserving parks is an important objective, but concluded that the provisions were not rationally connected to their stated objectives because the concerns raised by the City (e.g., drug use, vandalism, litter, disposal of bodily wastes) were not related to the type of shelter that homeless people were permitted to erect, the bylaws were “overly broad”, and their impact was disproportionate because the prohibitions put lives and health at risk. 

 

            Madam Justice Ross did not strike down any of the bylaw provisions.  Instead, she declared them to be “of no force or effect insofar and only insofar as they apply to prevent homeless people from erecting temporary shelter”.  Thus, the bylaws continue to exist, but limitations have been placed on their enforcement.  

 

Implications of the Decision

 

            Subject to the outcome of an appeal, Adams will affect how local governments regulate the use of parks and public places by the homeless. The most immediate implication of the decision is narrow; any bylaw or “government action” that prohibits the use of overhead shelters by homeless persons sleeping in parks and public places is likely unenforceable unless it can be shown to be in accordance with principles of fundamental justice, or can satisfy the section 1 proportionality test noted above.

 

            Local governments may not need to amend their bylaws to reflect the decision in Adams, and should probably wait for the outcome of the appeal in any event.  At its heart, the case involved bylaw enforcement, and local governments should carefully evaluate their enforcement practices that involve the homeless in parks and other public places.  The decision provides a template for evaluating bylaw enforcement in such circumstances.  The application of Adams to other instances will depend on the facts of each case.  It is conceivable that in another instance the outcome from Adams may not be justified, especially if it is arguable that there are adequate facilities for the homeless, or the provisions being enforced are not “overbroad”, “irrational”, or lacking in “proportionality”.  To the extent that overhead shelters (or other things) are not prohibited outright, but instead regulated (such as by allowing them during some parts of the day, or by permitting them in certain locations), it is more likely that a Charter of Rights challenge would be unsuccessful. 

 

            There are unresolved issues from Adams.  First, and despite evidence that there are a variety of reasons for being homeless, including that it can be “voluntary”, Madam Justice Ross seems to have treated the homeless as an indivisible group that requires uniform protection.  Second, the definition of what makes shelter “temporary” is unclear.  While the decision clearly contemplates that the City may require overhead shelter to be taken down on a regular basis, it is conceivable that situations could exist where this may result in a breach of section 7, such as during extreme weather.  Third, the decision leaves open whether other acts could receive section 7 protection; for example, should someone be able to grow food in a park, or harvest its resources?  Finally, the breadth of the provisions held to be unenforceable under section 7 is noteworthy.  While the case only concerned restrictions against overhead protection, the order applies to provisions that seemingly have little connection to that issue, such as a prohibition in the Parks Bylaw against harming animals.

 

            Ultimately, the case highlights the scrutiny applied by Courts to challenges under the Charter of Rights.  In practice, it can be difficult when drafting bylaws to address in advance all potential issues related to Charter of Rights concerns.  However, Adams shows the importance of reviewing the manner in which bylaws are enforced, especially when it can be expected that Charter of Rights issues may be engaged.

 

Arkinstall v. Surrey

 

In Arkinstall v. City of Surrey (2008 BCSC 1419), Mr. Justice Smart of the B.C. Supreme Court held that police officers could not, as a matter of course or policy, accompany the City’s Electrical and Fire Safety Inspections Team (the “EFSI Team”) during residential inspections made under the Safety Standards Act (the “SSA”). 

 

Background to the Case

 

The Petitioners owned a house in Surrey that was identified for inspection under the SSA because of its high rate of electrical consumption.  When members of the EFSI Team arrived to inspect the residence, Mr. Arkinstall refused entry to the RCMP officers who accompanied the team.  As it was the policy of the EFSI Team to not enter a residence without the police, the EFSI Team left the property without doing an inspection, and Surrey had BC Hydro disconnect electrical service to the residence.  The Petitioners obtained a court order to reinstate service, and commenced a challenge on the constitutionally of the SSA and the lawfulness of police involvement in the inspection by the EFSI Team. 

 

The Decision of the Court

 

The Petitioners alleged that those parts of the SSA that allow residential electrical consumption records to be provided to local governments, and the related issuance of compliance orders to persons for unsafe work or other failures of the SSA, were (1) beyond the power of the Province to enact because they were, in substance, criminal law, and thus under the jurisdiction of the federal government, and (2) contrary to sections 7 and 8 of the Charter of Rights.  The provisions at issue were added in 2006 and required, upon request from a local government, a distributor of electricity to provide records where residential electrical consumption exceeded 93 kilowatt-hours per day, when averaged over a billing cycle.  The evidence in Court showed that electrical consumption records had been provided to Surrey for about 6,000 properties, and that about 1,000 had been identified for inspection.

 

Mr. Justice Smart held that the SSA amendments were within provincial competence.  Notwithstanding suggestions that there was a criminal law interest underlying the amendments, Mr. Justice Smart concluded that at their “core”, they were “a safety initiative” because of provincial objectives related to reducing health and physical hazards, as well as the harm related to marijuana cultivation, such as crime and violence.

 

            The Petitioners also argued that searches of residences and the “seizure” of electrical power under the SSA without a warrant were contrary to section 8 of the Charter of Rights, which protects against unreasonable search or seizure, and that an inspection under the SSA should require prior authorization (such as a warrant) by a neutral arbiter based on “reasonable and probable grounds” that a safety hazard exists.  Case law on section 8 has held that a search by the state without a warrant is unreasonable, and shifts the burden to the state to demonstrate reasonableness.  A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out was reasonable.  However, the Courts have also recognized that a less strenuous standard applies where the interests being advanced are other than the criminal law, such as those of a regulatory or administrative nature.  Mr. Justice Smart concluded that inspections under the SSA struck a “reasonable balance between administrative efficiency and individual privacy”, and did not breach section 8 of the Charter of Rights (no ruling was made about section 7).

 

The Petitioners also challenged Surrey’s policy of having police involved in inspections because the SSA did not specifically authorize police entry.  Surrey argued that the police were entitled to enter residences under their common law powers to keep the peace, prevent crime, and protect life and property.  The Province (which was also a party in the case) argued that inspections under the SSA are subject to a lower standard of reasonableness than are searches in criminal matters, and that because they were undertaken under section 16 of the Community Charter, which imposes procedural constraints such as 24 hours advance notice, they were inherently reasonable. 

Mr. Justice Smart concluded that because the police presence was not based on any specific concern about the Petitioners, but instead occurred under a policy based on “generalized concerns” about properties with high electrical consumption, it was not justified.  Police presence was held to add “stigma” to inspections, and an “aura” of criminality not found with typical safety inspections. Accordingly, he held that the disconnection was unlawful, and left open the possibility of damages being awarded against Surrey.  Mr. Justice Smart said that his ruling did not mean that police can never enter a residence without a warrant to assist an EFSI Team, but did not specify what would justify police involvement. 

 

Implications of the Decision in Arkinstall

 

Three things can be taken from Arkinstall.  First, Mr. Justice Smart upheld the use of the electrical consumption threshold used as a basis for property inspections, together with the overall inspection regime established under the SSA.  Second, the decision continues to uphold a lower standard of Charter of Rights review for inspections that occur in situations that typically involve local governments, and specifically referred to the decision of the B.C. Court of Appeal in R. v. Bichel (1986) 4 B.C.L.R. (2d) 132, which the Petitioners argued was “dated”.  Third, it is now clear that police entry into private residences during inspections has to be justified on a case by case basis, rather than being based on a general policy.  Police involvement in inspections will have to either be pursuant to a warrant, or justified under the common law test. 

 

What remains unanswered from Arkinstall is the factors that will justify police presence at common law during inspections involving the SSA.  There have been several cases in which our courts appear to have accepted with little dispute that there are dangers to the community and response personnel from clandestine drug labs that produce substances such as ecstasy, and in which the appropriateness of police presence did not appear to be at issue.  Interestingly, and despite his conclusion that police involvement was not justified under common law in the case of the Arkinstall residence, Mr. Justice Smart accepted as a general matter that safety hazards may be associated with the weapons, dogs, and other means used to protect marijuana grow-ops.  It is conceivable that this type of concern may provide a basis for justifying police presence under the common law test.

 The practical extent to which Arkinstall should affect the practises followed by electrical inspection teams and bylaw inspectors in general remains unclear.  At a minimum, if an inspection team wishes to have police accompany them into a residence, the police should assess the matter on its merits, and determine if there is reasonable justification under the common law for attendance.  Alternatively, a warrant may be sought to authorize police involvement. 

This client bulletin is intended to provide commentary on issues of interest or significance to local governments in British Columbia.  Its comments reflect the views of the author and are not intended to provide legal advice or establish a legal retainer.  For specific advice or information, please directly contact the author.  If you wish to be removed from the distribution list for legal bulletins, or if you have any comments or questions, please contact James Yardley at 604-689-5263, or jgy@murdymcallister.com.  

© 2008 Murdy & McAllister