Constitutional challenge to a city bylaw prohibiting temporary overhead shelters in public parks constructed by homeless people as violating the right to life, liberty and security of the person (under section 7 of the Canadian Charter of Rights and Freedoms) in circumstances where there is a lack of sufficient alternative shelter; Justiciability of right to adequate housing; Positive and negative rights; Use of international human rights law and summary records to interpret domestic constitutional rights.
A group of homeless people erected overhead shelter in the form of tents, tarps and cardboard boxes at a local park in the City of Victoria. The City sought a permanent injunction (legal order requiring the homeless to refrain from erecting shelters) and declaration that such structures contravened the Park Regulation Bylaw and Streets and Traffic Bylaw. The City had a documented shortfall of spaces in homeless shelters. The defendants argued the bylaws were unconstitutional, infringing "the right to life, liberty and security of the person" under section 7 of the Canadian Charter of Rights and Freedoms.
The trial court found the prohibition of temporary overhead shelter in parks to be unconstitutional where there was a lack of alternative shelter space. The court held the issue to be clearly justiciable because it dealt with the constitutionality of a legal prohibition. The court relied on the right to adequate housing under international human rights law as an interpretive aid. The Court referred to submissions made by Canada to the United Nations Committee on Economic, Social and Cultural Rights regarding the scope of domestic protections for the right to housing and on General Comment No. 4 on the right to adequate housing under the International Covenant of Economic, Social and Cultural Rights (ICESCR). The Court noted that the question of whether the right to life, liberty and security of the person imposes positive obligations on governments to ensure the right to housing has not yet been determined by the Supreme Court of Canada, and did not need to be decided in this case, which only challenged state interference.
On appeal, the British Columbia Court of Appeal unanimously upheld the trial decision with only minor changes, however, the Court of Appeal has allowed that the City can re-apply to British Columbia Supreme Court to terminate the part of the order which directly dealt with erection of shelters if the City can demonstrate that there are sufficient resources to shelter the homeless.
Keywords: Victoria (City) v. Adams, 2009 BCCA 563; 2008 BCSC 1363, Enforceability, ESCR
Following the decision of the British Columbia Supreme Court, the City of Victoria added approximately eighty new shelter beds and implemented a new policy on temporary shelters that was consistent with the Court's ruling, which allowed tents to be erected from 7pm to 7am. Advocates are concerned, however, at the minimalist nature of the remedy in this case, and have mobilized in support of federal legislation to protect the right to adequate housing. A constitutional challenge by homeless people is being developed to demand an effective national strategy to implement the right to adequate housing and to eliminate homelessness within a reasonable period of time.
This case is the first in Canada to recognize the right to adequate housing as a component of the right to life, liberty and security of the person in the Canadian Charter of Rights and Freedoms. The use of international human rights law and government pleadings before the CESCR is a model for integrating international and domestic advocacy and jurisprudence. Moreover, the Court of Appeal's remedy is an innovative means of promoting positive measures within a more traditional "negative rights" framework. Advocates are concerned, however, that this case involves only minimal entitlements to shelter rather than remedies that are consistent with Canada's obligations under international human rights law.
Poverty and Human Rights Centre, http://povertyandhumanrights.org/ British Columbia Civil Liberties Association, http://www.bccla.org/ Groups Involved in Follow Up Litigation and Law Reform Pivotl Legal Society, http://www.pivotlegal.org/ Social Rights Advocacy Centre, http://www.socialrights.ca Centre for Equality Rights in Accommodation, http://www.equalityrights.org/cera/ Advocacy Centre for Tenants in Ontario, http://www.acto.ca/