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The notice which the City of Victoria delivered to the people at Tent City says that we are not permitted to move ourselves or our belongings to any other City park or public access way in the City of Victoria. But there is no where else for us to go. The shelters that they tell us to go to are usually full or have only a very few beds available. And many people, myself included, do not feel safe in the shelters. Also if I were to go to a shelter I would be forced to be separated from my husband.

– Alymanda Wawai in an affidavit from the Adams case

“A constitution has been described as ‘a mirror reflecting the national soul’: it must recognize and protect the values of a nation.”

The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Section 15 of the Charter provides that:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

 

Section 1 of the Charter provides:

1.         The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

fact:

(a)        There are at present more than 1,000 homeless people living in the City.

(b)   ...hundreds of the homeless have no option but to sleep outside in the public spaces of the City.

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

(d)        ... exposure to the elements without adequate protection is associated with a number of significant risks to health including the risk of hypothermia, a potentially fatal condition.

(e)        ... overhead protection is part of what is necessary for adequate protection from the elements.

LIFESTYLE

On the basis of this evidentiary record and for the reasons that follow, I have found that a significant number of people in the City of Victoria have no choice but to sleep outside in the City’s parks or streets.  The City’s Bylaws prohibit those homeless persons from erecting even the most rudimentary form of shelter to protect them from the elements.  The prohibition on erecting shelter is in effect at all times, in all public places in the City.  I have found further that the effect of the prohibition is to impose upon those homeless persons, who are among the most vulnerable and marginalized of the City’s residents, significant and potentially severe additional health risks.  In addition, sleep and shelter are necessary preconditions to any kind of security, liberty or human flourishing.  I have concluded that the prohibition on taking a temporary abode contained in the Bylaws and operational policy constitutes an interference with the life, liberty and security of the person of these homeless people.  I have concluded that the prohibition is both arbitrary and overbroad and hence not consistent with the principles of fundamental justice. 

        Sections 14(1)(d) and 16(1) of the Parks Regulation Bylaw No. 07-059 violate s. 7 of the Canadian Charter of Rights and Freedoms in that they deprive homeless people of life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice, and are not saved by s. 1 of the Charter.

(b)        Sections 14(1)(d) and 16(1) of the Parks Regulation Bylaw No. 07-059 are 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.

(c)        The Supreme Court of British Columbia may terminate this declaration on the application of the City of Victoria, upon being satisfied that sections 14(1)(d) and 16(1) no longer violate s. 7 of the Canadian Charter of Rights and Freedoms.

The Politics of Law

Do you think that the Charter is useful to people living in poverty? How or how not? Why or why not?

Is the result in Adams a good outcome? Is it the best outcome? Will Adams result in much change?

Is the Charter and judicial review under the Charter a good thing? Are judges the right people to make these kinds of decisions?

Do legal decisions also have political effects? How?

Public Opinion and the Charter

What do you think the general public thinks about cases like Adams and the role of the Charter in issues like homelessness? Do cases like Adams do anything to shape public opinion?

Social Justice and The Law

[188]     … the following may be identified as the most relevant factors to 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.

Costs

[167]     The trial judge found that the respondents are entitled to special costs of the trial on the basis of the principles applicable to “public interest litigation”. 

[166]     In the result, we order that the declaration be varied to read as follows:

Law and

(a)        Sections 14(1)(d) and 16(1) of the Parks Regulation Bylaw No. 07-059 violate s. 7 of the Canadian Charter of Rights and Freedoms in that they deprive homeless people of life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice, and are not saved by s. 1 of the Charter.

(b)        Sections 14(1)(d) and 16(1) of the Parks Regulation Bylaw No. 07-059 are 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.

(c)        The Supreme Court of British Columbia may terminate this declaration on the application of the City of Victoria, upon being satisfied that sections 14(1)(d) and 16(1) no longer violate s. 7 of the Canadian Charter of Rights and Freedoms.

Victoria (City) v. Adams

SOCIAL JUSTICE

…a frame of analysis that sweeps into view systemic structures, pre-existing differential distribution of resources, and historic practices of exclusion and marginalization.”

homelessness

inadequate housing

food security

discrimination

racism

poverty

colonialism

marginalization

...

   On the basis of this evidentiary record and for the reasons that follow, I have found that a significant number of people in the City of Victoria have no choice but to sleep outside in the City’s parks or streets.  The City’s Bylaws prohibit those homeless persons from erecting even the most rudimentary form of shelter to protect them from the elements.  The prohibition on erecting shelter is in effect at all times, in all public places in the City.  I have found further that the effect of the prohibition is to impose upon those homeless persons, who are among the most vulnerable and marginalized of the City’s residents, significant and potentially severe additional health risks.  In addition, sleep and shelter are necessary preconditions to any kind of security, liberty or human flourishing.  I have concluded that the prohibition on taking a temporary abode contained in the Bylaws and operational policy constitutes an interference with the life, liberty and security of the person of these homeless people.  I have concluded that the prohibition is both arbitrary and overbroad and hence not consistent with the principles of fundamental justice. 

LAW

Issues on Appeal

[58]         Based on all of these submissions, the issues in this appeal may be summarized as follows:

(a)      Is the decision of the trial judge an improper intrusion into the policy decisions of elected officials? JUSTICIABILITY

(b)      Did the trial judge err in finding that the Bylaw provisions in question violate s. 7 of the Charter? THE RIGHT: SECTION 7

(i)       Is there sufficient state action to engage s. 7 of the Charter?

(ii)      Is the state action the cause of the deprivation?

(iii)      Does the order grant a positive benefit to the respondents?

(iv)     Is the claim about property rights?

(v)      Is there an interference with life, liberty and security of the person?

(vi)     Did the trial judge err in the interpretation and application of the principles of arbitrariness and overbreadth?

(c)      Did the trial judge err by failing to hold that the Bylaws are saved by s. 1 as they are a reasonable limit that is demonstrably justified in a free and democratic society? JUSTIFICATION: SECTION 1

Section 2 of the Charter provides that:

2.   Everyone has the following fundamental freedoms:

freedom of conscience and religion;

freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

freedom of peaceful assembly; and

freedom of association.

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.

        Section 7 of the Charter provides that:

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.

“…an inevitable conflict between the need of homeless individuals to perform essential, life-sustaining acts in public and the responsibility of the government to maintain orderly, aesthetically pleasing public parks and streets.”

  The following findings were made on the basis of the evidence submitted at trial:

(a)        There are at present more than 1,000 homeless people living in the City.

(b)        The City has at present 104 shelter beds, expanding to 326 in extreme conditions.  Thus hundreds of the homeless have no option but to sleep outside in the public spaces of the City.

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

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

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

Section 1 of the Charter

Section 15 of the Charter

Override

Section 2 of the Charter provides that:

Section 7 of the Charter

.

PART II

RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA

Application of Charter

PART V

PROCEDURE FOR AMENDING THE CONSTITUTION OF CANADA

Part V

Procedure for amending Constitution of Canada

Section 52(1) of the Constitution Act, 1982 provides:

Part II

Rights of the Aboriginal Peoples of Canada

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say,--

Canada Act 1982

1982 c. 11

The Constitution Act, 1867

(THE BRITISH NORTH AMERICA ACT, 1867)

30 & 31 Victoria, c. 3.

IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20081014 Docket: 05-4999 Registry: Victoria

Between:

The Corporation of the City of Victoria

Plaintiff

And

Natalie Adams, Yann Chartier, Amber Overall, Alymanda Wawai, Conrad Fletcher, Sebastien Matte, Simon Ralph, Heather Turnquist and David Arthur Johnston

Defendants

And

The Attorney General of British Columbia

Intervener

And

British Columbia Civil Liberties Association

Intervener

Source of Constitutional Law

What do constitutions do?

VI. DISTRIBUTION OF LEGISLATIVE POWERS

Powers of the Parliament

…among other things

Rules  Laws  Constitutional Laws

Federalism

Aboriginal rights

Before: The Honourable Madam Justice Ross

Reasons for Judgment

Constitutional law…

“…an inevitable conflict between the need of homeless individuals to perform essential, life-sustaining acts in public and the responsibility of the government to maintain orderly, aesthetically pleasing public parks and streets.”

Let’s look at some of the important texts...

“assortment of important rules, principles, and practices relating to the governance of society”

“the law prescribing the exercise of power by the organs of a State. It explains which organs can exercise legislative power (Making new laws), executive power (implementing the laws) and judicial power (adjudicating disputes, and what the limitations on those powers are….”

Today’s and Tuesday’s Class…

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