CHRONOLOGY OF THE RELEVANT DATES IN THE LITIGATION

During February 6 through 9, 2009, the Appellant erected a shelter during daytime hours in Centennial Park within the jurisdiction and boundaries of the Respondent, The Corporation of the City of Victoria (the "City"). The shelter was within 25 metres of the City's municipal hall. The Appellant ignored repeated verbal and written warnings that were issued by the City to take down the shelter during daytime hours.

The relevant section of the City of Victoria Parks Regulation Bylaw (the "Bylaw") states:

"16A (1) Subsection (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."

[emphasis added]

The Appellant was subsequently charged under the Bylaw, consented to proceed to trial quickly, and on February 12, 2009, and was subsequently convicted in Provincial Court.

The matter was then appealed and proceedings suspended in the Supreme Court of B.C. pending the release of the decision of the British Columbia Court of Appeal in Victoria (City) v. Adams, 2009 BCCA 563 ("Adams"), released December 9, 2009.

In Adams, this Court declared that the City's Parks Regulation Bylaw was of no force or effect insofar as it restricted the right of homeless persons to erected temporary overnight shelter in the City's parks and public spaces if indoor shelter beds were unavailable.

The appeal below was heard by Mr. Justice Braken in Supreme Court on September 10, 2010.

OPENING STATEMENT

Following the decision of this Court in Victoria (City) v. Adams, 2009 BCCA 563 ("Adams"), the Respondent concedes that an absolute prohibition on the right of homeless people to erect temporary overnight shelters in parks and public places cannot be maintained under section 7 of the Canadian Charter of Rights and Freedoms, Constitution Act, 1982, (the "Charter"). Section 7 of the Charter states that 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. The Appellants have been convicted under the City's Bylaw, which prohibits the erection of temporary shelters in public places between 7:00 a.m. and 7:00 p.m., and the Appellant appeals that conviction. The City says that the time restriction to the erection of such shelters is a reasonable restriction of the section 7 right, justified in a free and democratic society, under section 1 of the Charter as it conforms to Adams.

PART I

STATEMENT OF FACTS

1. The decision of this Court in Adams turned upon the lack of available overnight shelter beds for homeless people in the City. Adams essentially holds that homeless people who must remain outdoors because there are insufficient places for them indoors cannot be prohibited by bylaws preventing from erecting temporary overnight shelters in parks and public places.

2. The Appellant defends himself in the within proceeding in reliance upon Adams and says that the right to erect shelter in the City's parks cannot be abridged by any restriction, including a restriction from erecting such shelter during daytime hours.

3. There has been no finding of fact in the within proceeding that there is a lack of shelter beds available to homeless persons during daytime hours.

4. On appeal to the Supreme Court, Mr. Justice Braken found that there was 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 (at section 47 of SC decision). Mr. Justice Braken stated the following at paragraph 34 of his reasons:

"... 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."

Appeal Record, page 43

5. Furthermore, the Appellant was not prosecuted for sleeping under shelter during the daytime. The Appellant erected a cardboard shelter in Centennial Park, next to the Victoria City Hall, for the purpose of willfully challenging the Bylaw. The Appellant sought to test the daytime restrictions which the City had imposed under the Bylaw.

6. Mr. Justice Braken found that the Bylaw, insofar as it restricted daytime erection of temporary shelters in parks and public places, was a reasonable limitation of the Appellant's rights.

PART II

ISSUES ON APPEAL

7. Following the decision of this Court in Adams, the City concedes that an absolute prohibition on right of homeless people to erect temporary overnight shelters in parks and public places cannot be maintained under section 7 of the Canadian Charter of Rights and Freedoms, Constitution Act, 1982, (the "Charter"). Section 7 of the Charter states that everyone has the right to life, liberty and security of the person and the right to not be deprived thereof except in accordance with the principles of fundamental justice. The Appellants argue that this right cannot be abridged or limited by restricting the right to overnight hours. That is the thrust of this appeal. The City submits that its amended Parks Regulation Bylaw (the "Parks Regulation Bylaw"), prohibiting the erection of temporary shelters in public places between 7:00 a.m. and 7:00 p.m., is a reasonable restriction of the section 7 right, justified in a free and democratic society, under section 1 of the Charter.

PART III

ARGUMENT

8. The City says that in any community there must be accommodation and compromise.

9. The City accepts that homelessness is a serious issue and has taken steps to help address the problem.

10. The City says that the purpose of its parks and public spaces is to provide public space for all persons to reasonably use and enjoy.

11. It is in the spirit of accommodation and compromise that the City amended the Bylaw to enable homeless persons to erect overnight shelter in parks and public places in the City in order to protect themselves from the elements. This compromise simultaneously permits the enjoyment of the City's parks and public places by ordinary users during daytime.

12. The City says that the section 7 Charter right, recognized by this Court in the Adams decision, extends only to permit homeless persons to erect "temporary overnight shelters". [Emphasis added]. Furthermore, the Adams decision turned on the evidence and finding of fact that there was a lack of availability night-time beds homeless persons in the City. This Court accordingly declared the offending portion of the Bylaw to be of no force and effect so long as the fact was that no alternative night-time beds are unavailable to homeless persons.

13. However, in this appeal there is no 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. During daytime hours, the City says that more services are available and the evidence in this proceeding established that there are drop-in centres and shelters in the geographical limits of the City where homeless people can go. furthermore, during periods of time when the region enjoys a normal temporate climate, daytime shelter may not be required.

Braken, J., Reasons for Judgment at para 62

Appeal Record, page 48

14. In agreement with the City, Mr. Justice Braken reasonably found that there was no evidence before him that there is unavailability of indoor locations for homeless persons in the City to sleep during the daytime.

Braken, J., Reasons for Judgment at para 33

Appeal Record, page 43

15. A critical distinguishing fact between the former version of the Bylaw, as it was considered in Adams, and the Bylaw in its current form is the degree of impairment or infringement of the Appellant's rights. The impairment or infringement of the Appellant's rights on the facts of the instant case is minimal, because it permits erecting temporary overnight shelter, there is no evidence of lack of daytime beds for homeless persons, and the Bylaw does not prohibit homeless people from sleeping in parks and public places at any time, including daytime hours.

16. In fact, the City says that the very purpose of the amendment of the Parks Regulation Bylaw was to temporarily address the current need of homeless persons to protect themselves overnight from the elements, until alternative housing for homeless persons becomes available, in a manner that would minimally impair the rights of homeless persons.

17. In that regard, the City says submits that Charter rights are not absolute and can be limited if the limit is proportionate. The City pleads and relies upon the Supreme Court of Canada's decision in J.T.I. MacDonald Corp. c. Canada (Procureure generale), 2007 SCC 30, wherein McLachlin C.J. said that rights are not absolute and can be limited if the limit is proportionate according to the test in R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.):

"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'."

18. In Adams, this Court found 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. ..."

Victoria (City) v. Adams

2009 BCCA 563 at para 127

19. Firstly, the City submits that this Court fully analyzed the issue that forms the basis of this appeal in Adams and drew the conclusion that the section 7 right only extends to the erection of "temporary overnight shelters". The City says that absent further relevant facts this appeal ought to be dismissed based on the analysis set forth in Adams.

20. In that regard Adams, the City says that the prohibition in the Bylaw only goes as far as necessary to protect urban parks and the rights of ordinary users. In this regard, the City says that there are fair and rational objective reasons to place reasonable limits on the erection of temporary shelters in parks and public places, including that such shelters and their use will:

(a) tend to become a permanent shelters;

(b) damage the park and public places and their amenities;

(d) cause public health and sanitation concerns.

21. These same legitimate concerns gave rise to the facts, namely a congregation of a large number of homeless people who had created a tent city in one small park in the City, which brought the Adams case before this Court.

22. The City says that it has an obligation to reasonably maintain its parks and public spaces and ensure their fitness for use by ordinary users, and this is particularly so during daytime hours. The restrictions imposed by the Bylaw allow those who wish to use parks and public places the freedom to do so without the presence of temporary shelters during daytime hours. 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.

Braken, J., Reasons for Judgment at para 63

Appeal Record, page 48

23. In summary, the City says that by limiting erection of temporary shelter to overnight hours, the City achieves the objective of balancing the rights of ordinary users who use and enjoy parks and public places principally during daytime hours. The City says this is a sufficiently important legislative objective.

24. For the foregoing reasons, the Bylaw is rationally connected to those objectives and purposes.

25. Given that there is no evidence of lack of available daytime shelter in this appeal in support of extension of the right that the appellant seeks, the Bylaw minimally impairs the rights of homeless persons.

26. The Bylaw's benefit of preserving parks and other public places for their intended uses far outweigh any deleterious effects of prohibiting the erection of temporary daytime shelters. In fact, the Appellant has not proven any such deleterious effects.

27. The City says that the Appellant failed to acknowledge the necessity for accommodation and compromise in addressing the issue on appeal. There is a need to balance the rights of the individual against the public interest: Cunningham v. Canada, [1993] 2 S.C.R. 143 (S.C.C.); Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 (S.C.C.). The Appellant fails to address the issue of balance.

28. Therefore, the City says that the Trial Judge did not err in finding that the City says that has brought itself within the requirements for constitutionality by means of the Bylaw.

PART IV

NATURE OF ORDER SOUGHT

29. The Respondent respectfully submits that this appeal ought to be dismissed with costs payable to the Respondent.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Robert Peterson,

Counsel for the Respondent