Abbotsford (City) V. Shantz – Clarifying The Charter Protection For The Homeless

In 2009, the BC Court of Appeal turned its mind to the growing issue of homelessness and clarified the scope of Charter protections for those who have no option but to spend the night on public lands. Since Victoria (City) v. Adams, 2009 BCCA 563 ("Adams"), the fact that local governments cannot prevent the homeless from building or erecting a sheltered place to sleep at night where no other option is available had almost become old news.

In the recent case of Abbotsford (City) v. Shantz, 2015 BCSC 1909 ("Shantz"), the BC Supreme Court re-visited the legal issue in Adams and granted a more expansive declaration than that granted in Adams.

Background

The legal dispute in Shantz arose when the City of Abbotsford (the "City") applied to prevent the reconstruction of a protest camp that had been ordered vacated in 2013. That camp involved a large wooden structure and had been built after a number of homeless persons had been forcibly evicted from a former camp. By the time of the hearing, a third camp had been constructed on City lands with a population that varied from five to 20 people.

In response to the City's suit, the British Columbia/Yukon Association of Drug War Survivors ("DWS"), an organization representing homeless persons which had been given public interest standing by the court, challenged the constitutionality of the City's Consolidated Parks Bylaw, Consolidated Street and Traffic Bylaw and Good Neighbour Bylaw (the "Bylaws"). The Bylaws prohibited, amongst other things, overnight sleeping in City parks without a permit and erecting shelter in public places.

Homelessness as Set Out by the Court

In order to define the scope of Charter rights held by homeless persons, the court first turned its mind to defining homelessness. In Shantz, a number of potential definitions were before the court, from the broad notion of spiritual homelessness, as experienced by Aboriginal individuals due to separation from traditional lands, to a much narrower definition based simply on the use of public land for habitation. While Chief Justice Hinkson did not rule out the applicability of other definitions to other disputes, he ultimately adopted the definition of homelessness set out in Adams: "a person who has neither a fixed address nor a predictable safe residence to return to on a daily basis".

The City argued that sleeping outside involves a degree of choice as some individuals, those that are disinclined towards rules for instance, prefer...