Her Majesty the Queen (City of Saskatoon) - v. -, 2017 SKPC 072

0 IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 072 Date:August 30, 2017 Information:400000233 Location:Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen (City of Saskatoon) - and - Philip Case Appearing: A. Rankine For the Crown N. Blenkinsop For the Accused JUDGMENT R.D. JACKSON, J I Introduction [1]

The accused stands charged with urinating in a public place contrary to City of Saskatoon Bylaw 8354 headed The Public Spitting, Urination and Defecation Prohibition Bylaw (The Bylaw). [2] The accused, Philip Case, was observed by a bike patrol officer, Constable Petrovicz, at approximately 10:30 p.m. May 25, 2016, to be relieving himself in the alley running off 2 nd Avenue behind the Lighthouse living facility, across from the Galaxy Theatre. [3] Mr.

Case, homeless at the time, had been previously residing at the Lighthouse however had been removed when government assistance funds had not come through for him. [4] Mr. Case asserts that due to a medical condition which induces incontinence, he has the common law defence of necessity available to him in regard to this charge. Further, he challenges the constitutional validity of the bylaw pursuant to s. 7 of the Charter dealing with the right to life, liberty and security of the person, by reason of his homeless status.

He submits in this regard that the appropriate remedy would be “an order from this honourable Court reading down the bylaw so as to allow for exceptions to the ban on public urination for homeless people and/or people who suffer from bladder control issues”. [5] Before proceeding further, the Court would like to express gratitude to counsel for the excellent written arguments submitted as well as the material provided to the Court by our articling clerk, Janyne Laing. II Applicable Statutory Provisions [6]

Section 8 of The Cities Act , S.S. 2002, c. C-11.1 states inter alia : jurisdiction to pass bylaws: Jurisdiction to enact bylaws 8(1) A city has a general power to pass any bylaws for city purposes that it considers expedient in relation to the following matters respecting the city: (

a) the peace, order and good government of the city; (

b) the safety, health and welfare of people and the protection of people and property; (

c) people, activities and things in, on or near a public place or place that is open to the public; (

d) nuisances, including property, activities or things that affect the amenity of a neighbourhood; [7] Saskatoon City Bylaw No. 8354, The Public, Spitting, Urination and Defecation Prohibition Bylaw , 2004 states: Whereas under the provisions of clause 8(1) (

b) of The Cities Act , S.S. 2002, c. C-11.1, a city may pass bylaws respecting the safety, health and welfare of people and the protection of people and property; And Whereas under the provisions of clause 8(1) (

c) of The Cities Act , a city may pass bylaws respecting people, activities and things in, on or near a public place or place that is open to the public; And Whereas under the provisions of clause 8(1) (

d) of The Cities Act , a city may pass bylaws respecting nuisances, including property,

activities or things that affect the amenity of a neighbourhood; And Whereas spitting, urinating or defecating in public, whether on a public place or privately owned property, constitutes a health risk and a nuisance which may affect the amenity of a neighbourhood; And Whereas the City of Saskatoon wishes to enact a bylaw to prohibit public spitting, urination and defecation in the City. 2.

In this Bylaw, (a) “City” means The City of Saskatoon; (b) “defecate” means to discharge waste matter from the bowels; (c) “public place” includes all or any part of a street as defined in The Cities Act , a park, municipal reserve, environmental reserve, buffer strip or other property of the City; (d) “spitting” means to eject phlegm, saliva, chewing tobacco juice or any other substance from the mouth; (e) “street” means a street within the meaning of The Cities Act ; and (f) “urinate” means to discharge urine from the body. 4.

No person shall defecate or urinate in public on any private property or in or on a public place. Offences and Penalties 5.

(1) Every person who: (

a) contravenes

section 3 is guilty of an offence and liable on

summary conviction to a fine of $100; and (

b) contravenes

section 4 is guilty of an offence and liable on

summary conviction to a fine of $200.

(2) In default of payment of a fine imposed pursuant to subsection (1), the individual convicted may be imprisoned for a term of not more than 30 days.

(3) Notwithstanding subsection (1), a peace officer may issue a notice of bylaw violation to a person who contravenes a provision of this Bylaw. The Notice of Violation shall provide that if the person pays the City the sum of: (a) $100 in respect of a violation of

section 3; or (b) $200 in respect of a violation of

section 4; prior to the date when the person contravening the Bylaw is required to appear in court to answer a charge, the person shall not be prosecuted for the contravention.

[8] Sections 1 and 7 of the Canadian Charter of Rights and Freedoms read:

Section 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 . . .

Section 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. III Issues [9] The issues for determination by this Court are:

a) Has the Crown proved the offence beyond a reasonable doubt?

b) Are either of the common law defences of due diligence (the charge being one of strict liability) or necessity available to the accused in these circumstances?

c) Does s. 7 of the Charter apply and if so, would s. 1 of the Charter save any alleged breach?

d) If s. 7 applies and would not otherwise be saved by s. 1 , what would be the appropriate remedy? IV Analysis

a) Has the Crown proved the offence beyond a reasonable doubt? [10] The Court is satisfied that the charge has been proven beyond a reasonable doubt. The circumstances of the offence come squarely within the bylaw definition and, apart from being clearly described by Constable Petrovicz, were not refuted by the accused. Further, identity was similarly proven and admitted to by the accused.

b) Are either of the common law defences of due diligence (the charge being one of strict liability) or necessity available to the accused in these circumstances? Due Diligence [11] The within charge is in the category of a regulatory prohibition which is a strict liability offence. A defence to such a type of charge is due diligence by the accused i.e. taking all reasonable steps to comply which the accused must establish based upon a balance of probabilities. [1] [12] Due diligence requires more than mere passivity.

In Lèvis (City) v Tètreault [2] , the accused was charged with having an expired driver’s licence. His defence that he thought the date on his licence was a renewal, rather than an expiry, notice was rejected by the

Supreme Court. The Court noted that he had made no attempt to obtain information to find out his obligations in this regard, holding that due diligence requires an active and reasonable attempt to prevent the commission of the prohibited act. [13] In the present case, the accused testified that due to his diabetic condition when he took Tylenol he suffered an “allergic reaction” which, inter alia, made it very difficult to hold his bladder.

He stated that he had taken Tylenol notwithstanding, three to four days earlier to ameliorate a painful back condition and accordingly he had very little time to react to the urge to relieve himself. [14] Mr. Case testified that he and a friend were sitting on public benches in front of the Galaxy Theatre on 2 nd Avenue on the evening of May 25 and that he was just coming out of an allergic reaction to the Tylenol.

When he realized he had to urinate, he headed across the street to the alley behind the Lighthouse toward the Detox entrance where he hoped he would get permission to use the bathroom, however, he did not make it and relieved himself against the building and on the ground. [15] Mr. Case did not attempt entry to the closer premises of the Galaxy Theatre nor the Fionn MacCool’s restaurant next door. He stated that without money or apparent means he would have been denied entry. Although he was aware of public washrooms in the downtown area, he had not checked as to when any such washrooms would be closed.

Nor had he returned to the Lighthouse itself to seek permission to utilise the toilet facilities. [16] In the circumstances, the defence of due diligence would not be available to Mr. Case. Similar to the circumstances in Lèvis, he acted mainly on what he believed to be the reaction of the nearby businesses and did not seek any information or take any steps to minimize his risk knowing the possible consequences of limited bladder control while experiencing allergic reactions to ingesting Tylenol. Necessity [17] The accused seeks to invoke the doctrine of necessity as a defence for his actions.

This is a narrowly construed common law defence where criminality is excused when the action is the result of emergent unforseen circumstances, provided that the harm done is not greater than necessary to avoid the evil. [3] [18] That the defence be applied sparingly was articulated by Dickson J in Perka who stated that it be “strictly controlled and scrupulously limited”. [4] Arguably, infringement of a municipal bylaw would not rise to the level where invocation of the defence, much less its application, would be merited.

However, it was also broadly stated in Perka that “. . . the defence of necessity covers all cases where non-compliance with law is excused by an emergency or justified by the pursuit of some greater good”. [5] Accordingly, there seems to be no impediment to considering the defence having due regard to the necessary criteria to establish same. [19] In R v Latimer [6] , the Supreme Court held that the following must be present to establish necessity:

a) there must be imminent peril or harm that is unavoidable and near;

b) the accused must have had no reasonable legal alternative; and

c) there must be proportionality between the harm inflicted and the harm avoided. [7] The onus is on the accused to establish on the facts that the defence should apply. [8] [20] Looking at the first criterion, i.e. that the peril must be “unavoidable”, in other words, unforeseeable, the evidence of Mr. Case falls short. He testified that he had taken Tylenol intermittently for a tail bone ailment and has known for many years that one of the consequences of taking Tylenol medication is to produce an allergic reaction making it difficult to hold his bladder.

He stated that he was going through an allergic reaction that night so would have known this could likely occur. He took no steps to familiarise locations of any potential facilities or times or availability or make any attempt to be near same. [21] As for any reasonable legal alternative being available, the Court is left to speculate whether closer facilities might have been viable alternatives. The accused testified that he was sitting right outside the Galaxy Theatre. He offered the opinion that without money he would not have been allowed washroom access, which might have been true, but Mr.

Case made no efforts in this regard. As

well, according to Constable Petrovicz, the bar and restaurant, Fionn MacCool’s, is right next door to the Galaxy directly across from where he encountered the accused. Again, Mr. Case made no attempt to gain entry, choosing to go across the street and down the alley where he hoped to persuade the nearby Detox facility to allow him in. [22] When balancing the competing interests of the third leg of the Latimer criteria, Mr. Case has a strong argument.

Although urinating in a public space presents nuisance and health concerns, it is certainly arguable that this “evil” would be equally offset by having to wet himself. This would not only be personally demeaning, but moreso because he had no clean clothes to change into and likely would be spending the night outside, which could be a legitimate health concern. [23] When considering all of the factors however, Mr. Case has not met the evidential burden set down in Latimer to warrant applying the defence of necessity.

c) Does s. 7 of the Charter apply and if so, would s. 1 of the Charter save any alleged breach?

d) If s. 7 applies and would not otherwise be saved by s. 1 , what would be the appropriate remedy?

Section 7 [24] The accused seeks to have the bylaw read down so as not to apply to the category of “homeless persons” or those with “bladder control issues” by virtue of a breach of s. 7 of the Charter by the City of Saskatoon.

In Carter v Canada (Attorney General) [9] , the Supreme Court held that to establish a s. 7 breach the Court must be satisfied that there was a deprivation of life, liberty and security to the person caused by state action and that such deprivation is contrary to the principles of fundamental justice. [25] If s. 7 is engaged, courts have examined whether the impugned legislation is arbitrary [10] , over broad in its application i.e. more broadly framed than necessary [11] or grossly disproportionate to the state objective. [12] [26] Undoubtedly, the challenge for the accused here would be to fit the circumstances of the within offence into these parameters.

In Victoria City v Adams [13] , relied upon by the accused, the issue centred around providing a fundamental basic need of adequate shelter, the failure of which could be life threatening. Equating this to the prohibition of urinating or defecating in public is certainly a long bow to draw in the Court’s view. [27] However, before launching into the merits of such arguments, the onus is on the accused to introduce the necessary evidence upon which a full and proper analysis can be made respecting the constitutional challenge.

In Adams , expert medical evidence was led to demonstrate serious risk of harm by hypothermia. Further, evidence was introduced to show a current emergent circumstance involving homeless people and lack of proper housing facilities in the city. [28] In the present case, the Court would require hard evidence to assess the full impact of the alleged shortcomings or deficiencies of the urination bylaw including, but not necessarily limited to, the following:

a) number, location and availability of public washrooms throughout the city, and in particular, near the location where the offence occurred;

b) number, prevalence and concentration of homeless persons in the subject area and the city generally;

c) policy of private establishment facilities regarding non-patron usage of the washrooms within reasonable proximity to the subject area as well as in the city generally;

d) reliable data as to the frequency of infringement incidents of urination in contravention of the bylaw relating to the identified classes seeking exclusion from enforcement;

e) seasonal weather temperature means for City of Saskatoon;

f) medical evidence relating to the safety concerns of wet clothing in varying temperature extremes in Saskatoon;

g) medical evidence generally as to any other potential impact, including psychological, on the subject classes; and

h) medical evidence specifically detailing nature and types of bladder control ailments and proper methods of addressing same through medication and external means. [29] The only evidence remotely addressing some, but not all of these categories, was brought in through the cross-examination of the arresting officer, Constable Petrovicz.

Having him agree that he is aware that private restaurant establishments may not allow homeless persons entry or that it would be obvious that wet pants in cold weather would be extremely uncomfortable, are simply non-expert lay opinions outside the permissive scope of such type of evidence. [14] If a constitutional challenge is to be launched it must be from the platform of solid reliable data and opinion, the latter tendered by qualified expert(s), the burden of which is upon the applicant to establish. [15] [30] It is impossible to speculate in such an evidentiary vacuum whether s. 7 would have been engaged.

Without such, the Court simply does not have the ability to properly assess the scope of the alleged problem nor the appropriateness of any suggested remedy.

Section 1 [31] Irrespective of s. 7's application to any breach established, the question would then be whether such breach would be saved by s. 1 of the Charter . The seminal decision of R v Oakes [16] set out the criteria to justify the infringement of rights:

a) a sufficiently important legislative objective;

b) a rational connection between the impugned provisions and the objective;

c) minimal impairment of the right or freedom in question;

d) proportionality between the deleterious effects of the limitation and its purpose. [32] The public urination bylaw addresses issues of nuisance and health and safety concerns. Other jurisdictions have recognized the validity of similar legislation on such bases. [17] Whether general prohibition exceeds minimal impairment of the rights of the homeless and those with bladder control issues, once again, would have to be determined from an evidence-based analysis.

As no s. 7 breach has been established, no such adjudication is required on these points. [18] V Remedy [33] Even if all of the legal hurdles had been cleared, the remedy sought by the accused would not be one the Court could endorse. Who would fall into the category of “homeless” or having “bladder control issues” would be difficult, if not impossible, to articulate with any degree of certainty whatsoever.

Further, even if defined, the suggested changes would have the incongruous result of permitting public urination to such classes irrespective of actual availability of public facilities in any given circumstance. If the sidewalk was chosen over a readily available accessible toilet facility, no legal consequence would arise as the bylaw would not apply to them.

VI Conclusion [34] At the heart of this case is the allegation of discrimination on the basis of poverty, or more pointedly, against those most severely affected, being the homeless. It is laudable that such issues continue to be raised to maintain vigilance regarding laws which may be oppressive against such category of our citizens. That we all stand equal before the law brings to mind the adage “every man for himself said the elephant dancing among the chickens”. [35] As noted, the evidence before the Court is incapable of raising a defence to the charge or to launch a Charter challenge in the Court’s view.

This is not to say however, that the City should not take notice and strive to provide available public facilities where the need is most apparent, from both a humanitarian perspective and to avoid future like challenges being initiated. [36] The accused is found guilty of urinating in public contrary to City of Saskatoon bylaw 8354. In all of the circumstances, the Court exercises its discretion in waiving the attendant fine, to be construed solely as fact-specific and of no other precedential value. _________________________ R.D. Jackson, J