Victoria (City) v. Adams

2009 BCCA 563
Download Judgment: English
Country: Canada
Region: Americas
Year: 2009
Court: Court of Appeal for British Columbia
Health Topics: Poverty
Human Rights: Right to housing, Right to liberty and security of person
Tags: Low income, Poor, Underprivileged

Municipal bylaws in the City of Victoria, British Columbia prevented homeless people from erecting shelters in public parks. Due to lack of available beds in shelters, homeless people set up a tent city in a public park. The City sought legal action to remove the tent city, claiming that it violated the city bylaws. The bylaws allowed for sleeping in the parks with personal protection like a blanket or sleeping bag but prohibited setting up tents or any similar overhead shelter overnight.

At trial, the central issue was: whether the bylaws’ prohibition on erecting temporary shelters at night violated the rights to “life, liberty, and security of person” protected under s.7 of the Canadian Charter of Rights and Freedoms.

The trial judge found that the bylaws violated rights under s.7. Further, given the severe health risks of sleeping without shelter, the bylaws were not justified under s.1 of the Charter. The City appealed the decision arguing that the decision is an improper intrusion by the court into complex policy decisions made by democratically elected officials.

The Court of Appeal affirmed the trial judge’s finding that the bylaws were unconstitutional. The Court held that the bylaws violated the right of life, liberty and security guaranteed under s.7 of the Charter. The court stated that based on unopposed expert evidence, the trial judge had found that compliance with the bylaws exposed homeless people to fatal conditions such as Hypothermia and hence was an interference in their right to life. Further, restricting the right of homeless people to build a shelter to protect themselves was a significant interference with their right to dignity and independence. In determining the scope of s.7, the Court affirmed the trial judge’s reference to the recognition of adequate housing as a fundamental right in international treaties.


Moreover, the deprivation of the rights was not in accordance with the principles of fundamental justice because they were clearly overbroad in achieving the City’s goal of preserving public parks.

The Court agreed with the trial judge that in addition to the infringement on s.7 being overbroad with reference to the City’s goal of maintaining the parks, the substantial and potentially grave health risks of sleeping without shelter far outweighed any potential benefit the bylaws may provide. Accordingly, the bylaws failed the justification test under s.1 (reasonable restrictions)

The Court held that this decision did not create a property right. The Court emphasized that due to the lack of adequate shelter space or other alternatives, the bylaws deprived the homeless of the choice to shelter themselves and hence were in violation of S. 7 of the Charter.

“(T)he homeless represent some of the most vulnerable and marginalized members of our society, and the allegation of the respondents in this case, namely that the Bylaws impair their ability to provide themselves with shelter that affords adequate protection from the elements, in circumstances where there is no practicable shelter alternative, invokes one of the most basic and fundamental human rights guaranteed by our Constitution - the right to life, liberty and security of the person.” (para. 75)

“(T)he fact that homelessness is not a choice does not mean that a homeless person's decision to provide him or herself with some form of shelter is not protected under s. 7. Treatment is as much a "necessary response" to illness as sheltering oneself is to the state of being homeless.” (para. 107)

“The serious health risks that homeless people face as a result of the absolute ban on shelter outweigh any benefit that may flow from the blanket prohibition. Thus, the trial judge made no error in concluding that the violation of the respondents' s. 7 rights is not justified as a reasonable limit pursuant to s. 1 of the Charter.” (paras. 129-130)