Johnston v. Victoria (City), 2010 BCSC 1707

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Johnston v. Victoria (City), 2010 BCSC 1707 Date: 20101130 Docket: 145835-1 Registry: Victoria Between: David Arthur Johnston and David Michael Shebib Appellants And: The Corporation of the City of Victoria Respondent Before: The Honourable Mr. Justice Bracken On Appeal from the Provincial Court of British Columbia of

Summary Conviction of March 6, 2009, R. v. Johnston & Shebib , Victoria Registry No. 145835-1 Reasons for Judgment Appellants appearing on their own behalf: D. A. Johnston and D. M. Shebib Counsel for the Respondent: T. J. DeSouza Place and Date of Hearing: Victoria, B.C. September 10, 2010 Place and Date of Judgment: Victoria, B.C. November 30, 2010 [ 1 ] The appellants apply for an order setting aside their convictions under s. 16A of City of Victoria Bylaw 09-014 prohibiting the erection of temporary shelters in public parks during the daytime. The City amended its Bylaw on February 10, 2009, by adding s. 16A. The Bylaw states: 16A

(1) Sub-section (2) applies despite the general prohibitions under section 14(1)(

d) and section 16(1) of this Bylaw.

(2) A person must not place, secure, erect, use, or maintain in place, in a park, a structure, improvement or overhead shelter, including a tent, lean-to, or other form of overhead shelter constructed from a tarpaulin, plastic, cardboard or other rigid or non-rigid material: (

a) subject to sub-section (b), except between the hours of 7:00 o’clock p.m. of one day and 7:00 o’clock a.m. of the next day, (

b) at any time, in a playground, sports field, footpath, a road within a park, Bastion Square, or any area within a park that has been designated for an event or activity under a valid and subsisting permit issued under the authority of this Bylaw. [ 2 ] The appellants were convicted in Provincial Court on February 12, 2009, and following conviction filed an appeal from conviction. The matter was held pending the release of the decision of the British Columbia Court of Appeal in The Corporation of the City of Victoria v. Adams, and others , 2009 BCCA 563 , released December 9, 2009.

There were several applications related to the procedure to be followed in this appeal and all matters were finally settled by the end of August 2010 and the appeal was heard September 10, 2010. [ 3 ] The appellants rely on both the trial and appeal decisions in Adams . The essence of their submission is that the Courts in Adams made a clear decision under s. 7 of the Canadian Charter of Rights and Freedoms , Constitution Act, 1982, (“the Charter ”) that homeless people in the City of Victoria have a right to erect temporary shelters on public property.

The appellants say that right cannot be abridged or limited by restricting the right to night-time hours only. [ 4 ]

Section 7 of the Charter states: 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. [ 5 ] The City of Victoria (“the City”) submits that the Bylaw prohibiting the erection of shelters during the day is a reasonable limit of the s. 7 right under s. 1 of the Charter . [ 6 ] Following the Adams decision and without any amendment to the Bylaw, the City adopted a policy to enforce the Bylaw during daylight hours only. The appellant David Johnston and two others were prosecuted pursuant to this policy when they erected shelters in a park during daytime hours. [ 7 ] They defended the charges relying on Adams .

The charges were dismissed on the basis that the Bylaw had been declared unenforceable in Adams and it was not saved by a daytime only enforcement policy. See R. v. Woodruff , Provincial Court of British Columbia, Victoria Registry Numbers 145022-1 and 145159-1, January 28, 2009. [ 8 ] The City then amended its Bylaw. The original Bylaw provided: Nuisances, obstructions 14

(1) A person must not do any of the following activities in a park: … (

d) take up a temporary abode over night; … Construction 16

(1) A person may 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 only as permitted under this Bylaw, or with the express prior permission of the Council, … Offence 18 A person who contravenes a provision of this Bylaw is guilty of an offence and is liable on conviction to the penalties imposed by this Bylaw and the Offence Act. [ 9 ] The Court of Appeal decision in Adams held that ss. 14(1)(

d) and 16 of Bylaw 07-059 violated s. 7 of the Charter “… 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 the provisions were not saved by s. 1 of the Charter .

The Court of Appeal also declared the sections were 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 in need of shelter in the City of Victoria exceeds the number of available shelter beds. [ 10 ] In February 2009 the appellants set up cardboard shelters in Centennial Park next to the Victoria City Hall. The shelters were set up during daytime hours and the appellants chose to ignore written warnings that were issued by the City.

The next day, a City Bylaw enforcement officer issued Offence Notices to each of the appellants. [ 11 ] It appears the trial was held very quickly as the reasons for judgment are dated February 12, 2009. The learned Provincial Court judge convicted both accused. He determined that the Bylaw, as amended, constituted a reasonable restriction on the rights of the appellants to erect a shelter in a public space. [ 12 ] The appellants submit that the learned Provincial Court judge erred and say the Bylaw interferes with their right to sleep under shelter during the day.

The appellants point out in their material that many of the people who are homeless in the Victoria area suffer from mental illness and by choice or necessity do not sleep at night and need to be able to sleep under shelter during the day. [ 13 ] The appellants rely heavily on findings of fact made by the trial judge in Adams . In particular, they rely on the Mayor’s Task Force Report published October 19, 2007. That report contains statistics respecting the number of homeless people in the Victoria area.

The court accepted the content of the report and relied on it in finding the facts underlying the Adams decision. [ 14 ] The appellants also rely on the findings arising from the expert opinion evidence presented in Adams . Dr. Stephen Hwang authored a report entered as evidence at the trial. Dr. Hwang is a specialist in general internal medicine and has a special interest in homelessness and health.

His evidence was accepted in Adams and his report says in part: If homeless people who sleep outside are prohibited from erecting even the most rudimentary forms of shelter from the elements (e.g. tent, tarpaulin, or cardboard barriers), this would have clear and direct adverse impacts on their health. First, a lack of protection from wind and rain would increase the wind chill effect, which would greatly increase the risk of hypothermia.

As has been documented in the research literature, homeless people are at particularly high risk of death from hypothermia, and half of all such deaths occur when the air temperature is above freezing (”Accidental hypothermia and death from cold in urban areas,” International Journal of Biometeorology , 1991). The wind chill effect plays a key role in such deaths. Second, prolonged exposure to cold and dampness increases the risk of skin breakdown and skin infections, particularly in the feet.

In homeless people, exposure of the feet to wet and cold conditions can lead to immersion foot or trench foot, a serious condition that was first described among soldiers serving in the trenches during World War I. Third, recent research has shown that exposure to the cold increases the risk of developing respiratory tract infections, which are a major health problem among people experiencing homelessness. Fourth, a lack of shelter from the sun would greatly increase homeless people’s risk of severe sunburn and heatstroke during the summer months.

Fifth, the lack of a tent or other structure to provide even a minimal degree of protection from the elements, light, and noise would result in even more disturbed and

fragmented sleep, with the adverse health effects detailed above. In

summary, if homeless people who sleep outside are prohibited from erecting any form of shelter such as a tent, tarpaulin, or cardboard box, it is absolutely clear that this would have a substantial and potentially severe adverse effect on their health. The normal core temperature of the human body is 37˚ Celsius. If the body temperature drops to 35˚ Celsius or below a person is at risk of developing hypothermia.

Hypothermia can occur at any time of the year, including summer months, particularly when it is raining or below freezing, but there is, of course a much higher risk in winter. … There is little risk of contracting heatstroke (hyperthermia) in Victoria, excerpt it [sic] perhaps on a few occasions in extremely hot weather. However, even in the summer there is risk of hypothermia developing if one were to get wet on [a] cool night.

It is still important to have proper equipment when sleeping outside in the summer. [ 15 ] The court found the effect of the Bylaw preventing the erection of temporary shelters exposed homeless people to a risk of serious health problems or death and concluded the facts of the case engaged s. 7 of the Charter .

The court went on to conclude there was a significant shortfall of shelter spaces in the City of Victoria and as a result homeless people had no choice but to sleep outside in parks or public spaces and the Bylaw, as it existed prior to the amendment, did not constitute a reasonable limit of the s. 7 rights. [ 16 ] The court concluded that, while the objective of the Bylaw had a legitimate and important public purpose to preserve public parks and spaces and the Bylaw had a rational connection to that purpose, the provisions were overbroad and thus did not constitute a proportionate response.

In the result, the Bylaw was declared to be inoperative insofar as it prevented homeless people from erecting temporary shelters. [ 17 ] The court considered the application of a constitutional exemption under s. 24 of the Charter as a means to protect the legislation. By that means anyone prosecuted under the Bylaw could raise a constitutional objection to the application by way of s. 24 of the Charter on a case-by-case basis.

The court rejected that submission, as it would require the homeless person prosecuted to raise the Charter as a defence and the City could use its enforcement authority to defeat the Charter right in cases where the person was not prosecuted or where he or she did not have the resources to defend the case. [ 18 ] The Court of Appeal confirmed the trial judge’s conclusions that the Bylaw was overbroad stating at paragraph. 116 that: … The prohibition on shelter contained in the Bylaws is overbroad because it is in effect at all times, in all public places in the City.

There are a number of less restrictive alternatives that would further the City’s concerns regarding the preservation of urban parks. The City could require the overhead protection to be taken down every morning, as well as prohibit sleeping in sensitive park regions. [ 19 ] The Court of Appeal went on to review the trial judge’s conclusion that the Bylaw was not saved by the application of s. 1 of the Charter .

Both the trial court and the appeal court held that to justify the infringement of a Charter right there must be: … (1) a sufficiently important legislative objective; (2) a rational connection between the impugned provisions and the objective; (3) minimal impairment of the right or freedom in question and; (4) proportionality between the deleterious effects of the limitation and its purpose. … (para. 127 BCCA) [ 20 ] The Court of Appeal agreed with the conclusion of the trial judge and held the prohibition went further than was necessary to protect urban parks, was not minimally impairing and the benefits of prohibition did not outweigh the deleterious effects of prohibiting the erection of temporary shelters. [ 21 ] The Court of Appeal also held it was not appropriate to grant an “individual remedy” under s. 24 of the Charter rather than declaring the impugned parts of the Bylaw to be of no force and effect under s. 52 of the Charter .

The Court referred to R. v. Ferguson , 2008 SCC 6 ; [2008] 1 S.C.R. 96, and quoted from the judgment of the Chief Justice at paras. 61 and 64: It thus becomes apparent that ss. 52(1) and 24(1) serve different remedial purposes. Section 52(1) provides a remedy for laws that violate Charter rights either in purpose or in effect. Section 24(1) , by contrast, provides a remedy for government acts that violate Charter rights.

It provides a personal remedy against unconstitutional government action and so, unlike s. 52(1), can be invoked only by a party alleging a violation of that party’s own constitutional rights: Big M [ R. v. Big M. Drug Mart Ltd., 1985 CanLII 69 (SCC) , [1985] 1 S.C.R. 295]; R. v. Edwards , 1996 CanLII 255 (SCC) , [1996] 1 S.C.R. 128. Thus this Court has repeatedly affirmed that the validity of laws is determined by s. 52 of the Constitution Act, 1982 , while the validity of government action falls to be determined under s. 24 of the Charter : Schachter [ Schachter v.

Canada , 1992 CanLII 74 (SCC) , [1992] 2 S.C.R. 679]; R. v. 974649 Ontario Inc. , [2001] 3 S.C.R. 575, 2001 SCC 81 . … ... The highly discretionary language in s. 24(1), “such remedy as the court considers appropriate and just in the circumstances”, is appropriate for control of unconstitutional acts.

By contrast, s. 52(1) targets the unconstitutionality of laws in a direct non - discretionary way: laws are of no force or effect to the extent that they are unconstitutional. [Italic emphasis in original.] [ 22 ] The court noted at para. 160 that the Adams case was directed to “temporary overnight shelter” and not simply “temporary shelter”.

In fact, it is clear throughout both the trial and appeal decisions in Adams that the case had proceeded on the basis that the s. 7 Charter right sought to be protected was the right to erect a temporary shelter for sleeping in public places at night. [ 23 ] There are several references to this in the trial judgment. At para. 130 of the trial decision the court commented that: ... If on the other hand, a piece of park property is used for someone to sleep at night with shelter, this does not mean that it cannot be

used by others for other recreational uses during the day. [ 24 ] At paragraph 181, the court noted that the asserted claim by the defendants was the “… ability to create rudimentary overnight shelter. ...” At paragraph 185 the court stated: … Indeed it seems to me that there are any number of less restrictive alternatives that would further the City’s concerns; for example, requiring the overhead protection to be taken down every morning, and creating certain zones in sensitive park regions where sleeping was not permitted. [ 25 ] At para. 40 of its decision, the Court of Appeal referred to para. 185 of the trial judgment and confirmed the conclusion of the trial judge that the Bylaw was overbroad.

At para. 116 the Court of Appeal reiterated the trial judge’s comment that there were a number of less restrictive alternatives to preserve public parks such as requiring the overhead protection to be taken down every morning.

In para. 132 of the Court of Appeal decision it is clear that the s. 7 Charter right addressed and protected was the right to erect temporary overnight shelters. [ 26 ] It is also clear from both the trial and appeal decisions that the right to erect temporary shelters was based upon evidence that there were an insufficient number of shelter spaces available in the City of Victoria to accommodate homeless persons. The evidence to support that conclusion was based largely on the Mayor’s Task Force Report admitted as evidence at the trial. A copy of that report is attached to Mr.

Johnston’s affidavit in this matter. [ 27 ] At para. 166 the Court of Appeal made it a term of its order in Adams that the Supreme Court of British Columbia can terminate the declaration if it is shown at any time there are sufficient shelter spaces available in Victoria to accommodate the homeless people who need them. [ 28 ] In this case the evidence respecting available daytime shelter spaces is found in the affidavits of Mr. Don McTavish, the Shelter Program Manager at the Victoria Cool Aid Society/Streetlink Emergency Shelter, and Ms.

Pat Humble, Residence and Client Services Scheduler at the Salvation Army in Victoria, as well as the evidence of Ms. Marie Stevenson from Victoria Cool-Aid Society who testified at the trial of this matter. [ 29 ] Mr. McTavish said Streetlink has 10 to 12 sleeping cots available for men and women during the day in addition to the 80 shelter beds available at night. Ms. Humble said the Salvation Army has 21 shelter beds available to males aged 19 or older. The beds are available for 21 hours of each day.

They are closed for cleaning for 3 hours each day but during that time residents can remain inside the building. [ 30 ] Ms. Marie Stevenson testified the Victoria Cool-Aid drop in shelter is open daily for people to come in for meals and to take showers. There was no evidence as to whether people could sleep at the drop-in centre during the day, but shelter from the elements is available. [ 31 ] Both Mr. Shebib and Mr. Johnston rely on the facts proved in Adams to support their submission that the right to erect temporary shelters should be unrestricted. Mr.

Johnston said this at paragraph 12 of his written submission: Until the City can guarantee that each homeless person can be afforded the option of getting sleep enough to maintain their health it is not Constitutional to prevent them from, conscientiously, securing it for themselves. Period. It is not reasonable for the City to presume over 1000 people to adjust their schedules to include a daily regiment (sic) of only sleeping when it is dark. [ 32 ] Mr. Shebib noted that Ms. Stevenson did not say sleeping beds were available during the day at the Cool Aid Society.

He also made the point that on the evidence, accepted in Adams , there are more than 1,000 homeless people in Victoria, but only about 30 sleeping beds available during the day. [ 33 ] The learned trial judge concluded at para. 34 of his reasons: The defendants object that the requirement for temporary shelters to be down during the daytime effectively amounts to prohibiting a segment of the population from sleeping during daylight hours. I do not accept that proposition. There is no evidence before me that there is an unavailability of indoor locations to sleep during the daytime.

In fact, the only evidence about the availability of shelter during daytime hours came in glancing fashion in the evidence of the Crown witness Marie Stevenson. [ 34 ] The appellants submit that conclusion is wrong. However I have reviewed the trial transcript and could find no evidence respecting the number of homeless people who need shelter during the day for the purpose of sleeping.

The appellants make the assumption, based on the evidence in Adams respecting the number of homeless people in Victoria, to argue all of the homeless people in Victoria require or are entitled to erect temporary shelters at any time. But there is no evidence to support that conclusion. The total number of homeless people is not broken down to identify those who want or need to sleep during the day. [ 35 ] The appellants argue that it is not the business of the state to determine when people may sleep.

They say that any restriction of the hours a homeless person may sleep is a deprivation of liberty. [ 36 ] That submission misses the point in my view. The decision of the courts in Adams is based upon the lack of available shelter beds for homeless people.

Adams says that the bylaws preventing homeless people who must remain outdoors because there are insufficient places for them indoors cannot be prohibited from erecting temporary shelters in public places. [ 37 ] The Court concluded the Bylaw restricting their rights was drawn more broadly than it needed to be but the Court clearly contemplated some restriction short of an absolute prohibition might be acceptable. [ 38 ] The City submits its Amended Bylaw prohibiting the erection of temporary shelters in public places between 7:00 a.m. and 7:00 p.m. is a reasonable restriction under s. 1 of the Charter .

[ 39 ]

Section 1 of the Charter provides: 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. In Adams the trial court held, and the Court of Appeal agreed, the Bylaw was not saved by s. 1 of the Charter . [ 40 ] The trial court in Adams referred to Canada (Attorney General) v. JTI-Macdonald Corp. , 2007 SCC 30 , where McLachlin C.J. said that rights are not absolute and can be limited if the limit is proportionate.

She then set out the test of proportionality as found in R. v. Oakes , 1986 CanLII 46 (SCC) , [1986] 1 S.C.R. 103: There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R. v.

Big M Drug Mart Ltd. , supra , at p. 352.

Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance". [Emphasis deleted.] [ 41 ] Adams confirmed the original Bylaws met that test as the Bylaw had an important objective related to the preservation of parks and other public places for their intended uses, and the Bylaw had a purpose rationally connected to that objective. [ 42 ] However, the court in Adams held that the Bylaw went beyond minimal impairment and constituted a disproportionate impact on the protected Charter rights of homeless people in Victoria.

As noted earlier in these reasons, that conclusion was based in large part on the proven fact there were insufficient shelter spaces available to meet the needs of the homeless.

The amended Bylaw does not purport to interfere with the right to erect temporary shelters, other than to restrict that right to the hours between 7:00 p.m. and 7:00 a.m. [ 43 ] After concluding that homeless people in Victoria had no alternative to sleeping outdoors, the trial judge in Adams said at para. 211 of her judgment that: … the prohibition against overhead protection does prevent homeless people who are sleeping outdoors from providing themselves with adequate protection from the elements. Accordingly, their lives and health are put at risk.

This is not minimal impact. [ 44 ] The trial court applied the principle in New Brunswick (Minister of Health and Community Services) v.

G. (J.), 1999 CanLII 653 (SCC) , [1999] 3 S.C.R. 46: First, the rights protected by s. 7 – life, liberty, and security of the person – are very significant and cannot ordinarily be overridden by competing social interests. [ 45 ] In Adams the court concluded the impairment or infringement of those very significant rights by operation of the Bylaw was not minimal. [ 46 ] In this case, the City submits that the limitation imposed by the Amended Bylaw is a minimal impairment of the appellants’ Charter rights.

The City points out that there is no clear evidence proving the number of available shelter spaces for daytime sleeping are insufficient for the homeless people who actually want or need to utilize them.

The City also says there are alternate places for shelter where homeless people can find sanctuary from the elements; even if they are not able to sleep in those places, they will at least be safe. [ 47 ] On my review of the evidence in this case there is nothing to be found in the evidence at trial to support the submission that the need for daytime sleeping space is equal to what is required at night. [ 48 ] Indeed, in this case the appellants were not prosecuted for actually sleeping under shelter during the daytime.

The appellants set up a cardboard shelter in Centennial Park, next to the Victoria City Hall, for the apparent purpose of challenging the Amended Bylaw. There are several photographs in evidence at the trial showing the shelter the appellants erected and there is nothing in the photographs, or the evidence generally, to suggest that either of the appellants have any need for daytime shelter so they can sleep.

The appellants were simply seeking to test the restriction the City had imposed under the Amended Bylaw. [ 49 ] There is a need to balance the rights of the individual against the public interest: Cunningham v. Canada , 1993 CanLII 139 (SCC) , [1993] 2 S.C.R. 143; Suresh v. Canada (Minister of Citizenship and Immigration) , 2002 SCC 1 , [2002] 1 S.C.R. 3. [ 50 ] The courts must be careful not to mix the s. 7 analysis with the s. 1 analysis. At para. 121 of the trial judgment in Adams , the court referred to Charkaoui v. Quebec (Attorney General) , 2007 SCC 9 (CanLII) , [2007] 1 S.C.R. 350.

At para. 22 of that decision McLachlin C.J. said: The question at the s. 7 stage is whether the principles of fundamental justice relevant to the case have been observed in substance, having regard to the context and the seriousness of the violation. The issue is whether the process is fundamentally unfair to the affected person. If so, the deprivation of life, liberty or security of the person simply does not conform to the requirements of s. 7 .

The inquiry then shifts to s. 1 of the Charter , at which point the government has an opportunity to establish that the flawed process is nevertheless justified having regard, notably, to the public interest. [ 51 ] By the decision of this court in Adams , as confirmed by the Court of Appeal decision, there is clearly a s. 7 right for homeless people in Victoria to erect temporary overnight shelters. The need for shelter at night is clearly established by the expert opinion evidence presented and accepted by the trial judge in Adams and confirmed by the Court of Appeal.

The appellants argue the right to protect themselves from the elements exists during the day as well.

[ 52 ] It is perhaps reasonable to assume that for the most part, shelter is not needed or does not threaten life or health during daytime hours in the Victoria area. However, as we have seen recently, there are times when homeless people are impacted by severe weather conditions between the hours of 7:00 a.m. and 7:00 p.m. During such times there may be a greater requirement for shelter. [ 53 ] While efforts are made to add to the number of shelter spaces at such times, there are likely still some homeless people who spend the entire day outdoors.

The s. 7 right under the Charter is not limited to certain hours of each day, however, the prohibition under the Amended Bylaw against erecting temporary shelters does limit the right to erect temporary shelters to nighttime hours only.

The question is whether that limit to the s. 7 Charter right is a reasonable one. [ 54 ] Thus, if the Bylaw is to survive the City has the onus to establish the Amended Bylaw is justified having regard to the public interest under s. 1 of the Charter . [ 55 ] In the penultimate paragraph of his reasons for judgment, the trial judge said this: The weakness of the defendants’ position, it seems to me, is the essential failure to recognize that in any community there must be accommodation, compromise. The City has now, although arguably belatedly, recognized that fact in the present Amended Bylaw.

In doing so, the City has brought itself within the requirements for constitutionality. [ 56 ] The conflict is between ordinary users of parks and public places in the City of Victoria and homeless persons who erect shelters for sleeping in those parks and public places. The s. 7 Charte r right established by the Court of Appeal in Adams extends only to “temporary overnight shelters.” [ 57 ] The Court of Appeal commented on this point at para. 160 of Adams where it was stated: There are some other difficulties with the order. We are told that the phrase “temporary shelter” has been a source of dispute.

There has been disagreement as to whether “temporary” refers to the nature of the shelter’s construction, or to the length of time that it is able to remain in place. The evidence in this case was directed at the need for homeless persons to erect temporary overnight shelter, in order to be able to sleep outside. The declaration granted should, therefore, refer to “temporary overnight shelter” rather than simply to “temporary shelter”.

This should clarify the intention that the City is required to allow shelters to remain in place only for the overnight period. [ 58 ] The concern of the City is that a temporary shelter without the restriction imposed by the Amended Bylaw will tend to become a permanent shelter and will damage the park and interfere with other users of the park. [ 59 ] The City in Adams raised other concerns: among them were damage to the parks and amenities; ensuring that parks and public places are available for the use and enjoyment of all members of the public; public health and sanitation concerns; and respect for the purpose for which parks and public spaces are created.

Indeed, the origin of the Adams case was the congregation of a large number of homeless people who had created a tent city in one small park. [ 60 ] As reproduced in both the trial and appeal judgments in Adams , the quotation from Pottinger v. City of Miami , 810 F. Supp. 1551 at 1554 (S.D. Fla. 1992), attests to the inevitable conflict between homeless individuals who carry out their essential life-sustaining acts in public and the obligation of government to maintain orderly parks and public places.

No doubt there will be many more areas of conflict until the complex problem of homeless people is finally resolved. [ 61 ] Until then governments must use great care in placing limits on those “essential life-sustaining acts” homeless people necessarily carry out in public and which are found to be fundamental rights under the Charter .

Once a s. 7 Charter right is established, the government is able to impose only those limits that it is able to demonstrate are “… justified in a free and democratic society”. [ 62 ] During daytime hours it is expected that more services are available and the evidence establishes that there are drop-in centres and shelters in the City of Victoria where homeless people can go.

During periods of time when the Victoria region enjoys its normal temperate climate, daytime shelter may not be required. [ 63 ] The restrictions imposed by the Amended Bylaw allow those who wish to use parks and public places the freedom to do so without the presence of temporary shelters. The City is able to carry out its function and maintain its parks and prevent the damage that might be caused by the presence of temporary shelters at all times during the day.

On the evidence presented I am satisfied that the City has established the Amended Bylaw s. 16A is justified under s. 1 of the Charter . [ 64 ] Having said that, the rights granted by s. 7 of the Charter may always be asserted in the form of a constitutional exemption under s. 24 of the Charter . While this was not found to be an acceptable way to advance s. 7 rights in Adams , it does provide a means to advance rights under the Charter in an appropriate case . However, in this case there is no proven shortage of daytime shelter for homeless people. [ 65 ] In

summary, I find s. 16A of the Amended Bylaw imposes a reasonable limit upon the rights of homeless people in Victoria within the ambit of s. 1 of the Charter . Therefore the appeal is dismissed. [ 66 ] If necessary, costs may be spoken to at the parties’ convenience. “J.K. Bracken, J.” The Honourable Mr. Justice Bracken