Homelessness and the Right to Life, Liberty and Security

Victoria (City) v Adams, 2009 BCCA 563 (9 December 2009) The British Columbia Court of Appeal has held that a city bylaw which prohibited homeless people from erecting any form of temporary shelter at night in a public park, in circumstances where the number of homeless people exceeded the number of shelter beds available, is a violation of the right to life, liberty and security of the person.

Facts

The City of Victoria in British Columbia, Canada, enacted bylaws which rendered it an offence for a person to erect or take up temporary overnight shelter – such as a tent, tarp or box – in a public park.  The trial judge made the following findings of fact, none of which were contested on appeal:

• There are more than 1000 people who are homeless in the City on any given night.
• The City has between 140 and 326 shelter beds, meaning that ‘hundreds of the homeless have no option but to sleep outside in public places’.
• The expert evidence established that sleeping outside without ‘some form of overhead protection’ is associated with ‘significant risks to health including the risk of hypothermia, a potentially fatal condition’.

In proceedings instigated by the City to remove a ‘tent city’ erected by about 70 homeless people in a public park, the British Columbia Supreme Court held that the bylaws were incompatible with s 7 of the Canadian Charter of Rights and Freedoms, which enshrines the right to life, liberty and security of person.  The City of Victoria appealed the decision.

Decision

Context

According to the Court of Appeal, this proceeding raised the conflict between the rights of people who are homeless ‘to cover themselves with the most rudimentary form of shelter while sleeping overnight in a public place when there are not enough shelter spaces available’ with the City’s ‘responsibility to the public to preserve public places for the use of all.’  The Court stated that

This constitutional context applies the most lofty of guaranteed human rights – the rights to life, liberty and security of the person – to the needs of some of the most vulnerable members of our society for one of the most basic of human needs, shelter.

Justiciability

On appeal, the City challenged the justiciability of the claim, arguing that the question before the Court was ‘political’ and ‘an improper intrusion into the policy decisions of elected officials’.  Rejecting this, the Court stated that, while ‘homelessness is a serious social issue with many causes and no clear or simple solution’ and that ‘it is the role of government to determine how best to allocate scarce resources’, this was not the issue before the court.  It stated:

The respondents [a]re not asking the court to adjudicate on the wisdom of policy decisions of elected officials on how to best allocate public resources to address the problem of homelessness.  The question before the court [i]s whether the provisions of the Bylaws that prohibit the erection of temporary overhead shelter violate the respondents’ rights under s 7 of the Charter, in circumstances in which there are insufficient alternative shelter opportunities for the City’s homeless.

There is no doubt this is a proper question for a court to address.

The Court further stated that, in any event, ‘the fact that a legal issue raises political concerns does not render it non-justiciable’.

Right to Life, Liberty and Security of Person

Section 7 of the Canadian Charter provides that ‘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’.  The Court drew on a range of international human rights instruments which enshrine the right to adequate housing to inform the scope and content of s 7, including the International Covenant on Economic, Social and Cultural Rights.  It stated that the right is designed to protect ‘fundamental notions of human dignity, personal autonomy and privacy’.

In determining that the challenged bylaws interfered with s 7, the Court stated that:

the homeless represent some of the most vulnerable and marginalized members of our society…prohibiting the homeless from taking simple measures to protect themselves through the creation or utilization of rudimentary forms of overhead protection, in circumstances where there is no practicable shelter alternative, is a significant interference with their dignity and independence.  The choice to shelter oneself in this context is properly included in the right to liberty under s 7.

The Court was careful to note that this approach to s 7 did not necessarily impose a ‘positive obligation on the City to provide adequate alternative shelter’ (although it did not foreclose this possibility), but that it merely ‘requires the City to refrain from legislating in a manner that interferes with the s 7 rights of the homeless’.

Is the Limitation Reasonable and Permissible?

Having determined that the bylaws interfered with the rights protected by s 7, the Court then considered whether the limitation was nevertheless permissible, pursuant to s 1, as a ‘reasonable limit prescribed by law’ that could be ‘demonstrably justified in a free and democratic society’.

Applying the well-established approach from R v Oakes [1986] 1 SCR 103, the Court determined that the purpose of the limitation, being the ‘preservation of urban parks’, is a ‘sufficiently important objective’ and that the ‘prohibition on the erection of temporary shelter’ is rationally connected to that objective.  In determining that the bylaws were not ‘saved’ by s 1, however, the Court held that the prohibition was not ‘minimally impairing and that the benefits of the prohibition did not outweigh the deleterious effects’:

The serious health risks that homeless people face as a result of the absolute ban on shelter outweigh any benefit that may flow from the blanket prohibition.

Remedy

The Court declared the bylaws ‘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’.

The Court further held that the homeless respondents were entitled to the ‘special costs’ of the trial and appeal (that is, solicitor-client costs) ‘on the basis of the principles applicable to “public interest litigation”’.

Relevance to the Victorian Charter

The decision is consistent with the strong trend in international and comparative jurisprudence towards recognising that civil and political rights have social and economic dimensions.  The Court’s approach to s 7 of the Canadian Charter should inform the interpretation of s 9 (right to life), s 13 (right to privacy and the home) and s 21 (right to liberty and security) of the Victorian Charter.

The facts of this case are also highly pertinent to homelessness in Australia and Victoria.  According to the Australian Institute for Health and Welfare, on any given day ‘less than half (41%) of all new requests for immediate accommodation are successful, with about 385 people (or 59%) turned away’ (see Demand for SAAP Accommodation by Homeless People 2007-08 (2009)).  Young people and families with children are among the groups with the highest turn away rates from homelessness services in Australia.  Despite this, there are a range of state and local laws that criminalise aspects of homelessness, including rendering it an offence to camp or erect a tent or other form of temporary accommodation in a public place (see, eg, Melbourne City Council, Activities Local Law 2009, 2.11).

The decision is available at http://www.courts.gov.bc.ca/jdb-txt/CA/09/05/2009BCCA0563.htm.

Philip Lynch is Director of the Human Rights Law Resource Centre