On Wednesday (October 21) the Supreme Court of British Columbia’s chief justice, Christopher E. Hinkson, struck down the City of Abbotsford’s bylaws prohibiting sleeping or being in a city park overnight or erecting a temporary shelter without permits.
In the narrowest possible ruling, guided by the Canadian Charter of Rights and Freedoms and recent precedent, Chief Justice Hinkson basically told the City of Abbotsford that homelessness was not something to be treated like a crime and that the city would just have to put up with having homeless people sleeping in its parks overnight. That's because there were clearly not enough shelter beds for them to sleep in—and people needed their sleep!
The ruling gives people (homeless or otherwise) the right to stay overnight in city parks only between 7:00 p.m. and 9:00 a.m. the following morning.
Although aimed at the City of Abbotsford, this Supreme Court of British Columbia “snooze and cruise” ruling may have just turned city parks, provincewide, into legitimate overnight homeless shelters.
Give ’em shelter, one way or another
The case of Abbotsford (City) v. Shantz, dates back to the 2013 attempt by a group of homeless people to camp in Abbotsford’s downtown Jubilee Park and pitted plaintiffs, the City of Abbotsford, against the defendants—Barry Shantz, unnamed homeless people and the British Columbia/Yukon Association of Drug War Survivors (DWS), with the B.C. Civil Liberties Association intervening on the side of the defendants.
The City of Abbotsford was asking the B.C. Supreme Court to give permanent force to a December 2013 interim injunction barring homeless people from sleeping and erecting shelter (in effect camping) in Jubilee Park. Additionally, the city was seeking monetary damages from personal plaintiff Barry Shantz, director of DWS.
The defendants were seeking, among other things, the right to erect, without permit, temporary, nonobstructing, shelter at any time during the day or night, on city park lands and public spaces, as part of their right to obtain the basic necessities of life.
The case effectively pitted the rights of a local government to do (or do nothing) as it pleased, against the rights of citizens as guaranteed by the Canadian Charter of Rights and Freedoms.
Stop treating homelessness like a crime
In his ruling, Chief Justice Hinkson wrote that based on Canadian legal precedent, homelessness was a risky but legal activity, like prostitution, and that the ability to sleep was an aspect of a person’s health and safety.
He concluded that Abbotsford’s bylaws denying homeless people access to public spaces for the purpose of sleeping and denying them the right to erect temporary shelter from the elements, did far more harm than good.
By denying homeless people the ability to stay anywhere long enough to get necessary rest, the chief justice said that Abbotsford’s bylaws violated homeless people’s Section 7 right to life, liberty, and security of the person, under the Canadian Charter of Rights and Freedoms.
There are two or three aspects of the B.C. Supreme Court’s decision yesterday, which are worth stressing:
Chief Justice Hinkson based his decision firmly on the Supreme Court of British Columbia’s 2008 decision allowing homeless people to sleep in City of Victoria parks, and both rulings were dictated as much by the absence of proper shelter spaces as by any other legal precedent.
The City of Victoria versus Natalie Adams
In 2005 the City of Victoria attempted to evict a homeless tent city from Cridge Park and the matter ultimately ended up in court. Three years later, in 2008, the Supreme Court of British Columbia, in Victoria (City) v. Adams, struck down the city bylaws prohibiting people from sleeping in city parks.
In her 2008 ruling, Justice Carol Ross wrote that “sleep and shelter are necessary preconditions to any kind of security, liberty or human flourishing”.
She found that whether or not homeless people chose to, or chose not to, sleep in shelters was beside the point because there were just not enough shelter beds and some people would have no choice but to sleep in public spaces.
Victoria’s bylaws, particularly against creating temporary shelters, made a difficult situation much worse—potentially health-threatening, in fact.
Accordingly, she ruled that aspects of Victoria’s parks and streets bylaws violated Section 7 of the Canadian Charter of Rights and Freedoms and struck them down. She also struck down those aspects of the bylaws which prevented homeless people from erecting temporary shelters.
Past really is prologue where law is concerned
In Abbotsford (City) v. Shantz, Chief Justice Hinkson was presented with a nearly identical case and chose a nearly identical remedy: allowing homeless people to sleep in city parks under temporary shelter, albeit only overnight.
In his ruling, Chief Justice Hinkson refused to be drawn into the “political arena” on such topics as the need for a “Dignity Village” or a Sobering Centre, or a needle exchange for Abbotsford’s homeless. He wrote that his court’s jurisdiction was to address a narrow issue similar to that which was before Justice Ross inVictoria (City) v. Adams.
He paraphrased the succinct way that the 2009 B.C. Court of Appeals ruling (Victoria (City) v. Adams, 2009 BCCA 563) upholding Victoria (City) v. Adams, summed up the issue:
“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.”
Justice Ross, the appeal court, and Chief Justice Hinkson agreed that it did and that the absence of sufficient shelter beds was a key fact, as the appeal court held in regard to the Victoria ruling:
“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.”
Chief Justice Hinkson quoted Justice Ross saying 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 City’s 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 City’s 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.”
The implications are clear. If Chief Justice Hinkson had found that there were sufficient—and sufficiently safe—shelter beds to accommodate all of Abbotsford’s homeless population then his ruling would probably have gone against the defendants.
As it is, this week's B.C. Supreme Court ruling should not be characterized as a total victory for homeless people and certainly not for the British Columbia/Yukon Association of Drug War Survivors.
Chief Justice Hinkson dismissed all of DWS’s arguments calling for this that and the other thing that were outside the narrow issue. He most specifically declined to issue the declaration the DWS most wanted—that Abbotsford’s homeless have a charter-based 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.
Chief Justice Hinkson wasn’t trying to give homeless people extraordinary rights beyond other Canadians; he was simply trying to restore basic Canadian rights that Abbotsford was taking away from them.
The ruling was most definitely a loss for Abbotsford and its years spent treating homeless people like poop and foot-dragging on the issue of shelters.
Hopefully the biggest loser of all was the old bigoted idea that still seems to have some currency in places like Abbotsford, that marginalized groups are less deserving of human considerations and that the majority can treat such groups as criminals or even animals, just because they are marginalized.
In a real sense, the ruling was the voice of the Canadian Charter of Rights and Freedoms reminding us that there is one consistent level of human rights that all Canadians are legally entitled to.
The days of vague, catch–all, vagrancy laws for sweeping the undesirables under the rug are long gone—and get used to it already!