Nov 29, 2014

Case Brief of Victoria City v Adams (2008)

Victoria (City) v. Adams, 2008 BCSC 1209 (CanLII)

Victoria (City) v Adams 2008 BC Supreme Court

Facts: Case began as a civil injunction against a group of homeless people who had erected a tent city in one of Victoria’s urban parks; The injunction required 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.”

Argument: 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.

Held: By-laws struck down; Ross J. stated that: The prohibition on seeking shelter in public implicated the life, liberty and security of the person (provided expert evidence

This prohibition is both arbitrary and overboard and hence no consistence with the principles of fundamental justice

Reasoning:

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.

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 over broad

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.

She likened the situation to that of Chaoulli 2005 SCC 35 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.

It was not about gov’t having a positive right to provide housing but their duty not to prevent the homeless from having somewhere to sleep