Victoria (City) v. Adams et al.,

JurisdictionBritish Columbia
JudgeLevine, Neilson and Groberman, JJ.A.
Neutral Citation2009 BCCA 563
Date09 December 2009
CourtCourt of Appeal (British Columbia)

Victoria v. Adams (2009), 280 B.C.A.C. 237 (CA);

    474 W.A.C. 237

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. DE.045

The Corporation of the City of Victoria (appellant/plaintiff) v. Natalie Adams, Yann Chartier, Amber Overall, Alymanda Wawai, Conrad Fletcher, Sebastien Matte, Simon Ralph, Heather Turnquist and David Arthur Johnston (respondents/defendants) and the Attorney General of British Columbia (intervenor) and British Columbia Civil Liberties Association (intervenor) and the Poverty and Human Rights Centre (intervenor) and Pivot Legal Society (intervenor) and the Union of British Columbia Municipalities (intervenor)

(CA036551; 2009 BCCA 563)

Indexed As: Victoria (City) v. Adams et al.

British Columbia Court of Appeal

Levine, Neilson and Groberman, JJ.A.

December 9, 2009.

Summary:

Litigation commenced by the City of Victoria raised an issue concerning the prohibition against erecting temporary shelter on public property that was contained in the City's Parks Regulation Bylaw and Streets and Traffic Bylaw (the Bylaws). By way of a counterclaim, the defendants (homeless persons living in Victoria) sought a declaration that the Bylaws were contrary to the Charter and of no force and effect pursuant to s. 52 of the Constitution Act, 1982, to the extent that they prohibited homeless people from engaging in life sustaining activities, including the ability to provide themselves with shelter, in public.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. 976, declared that (a) certain sections of the Bylaws violated s. 7 of the Charter in that they deprived homeless people of the rights to life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice and were not saved by s. 1 of the Charter; and (b) the sections of the Bylaws were of no force and effect insofar as they applied to prevent homeless people from erecting temporary shelter. The trial judge awarded the defendants special costs of the trial on the basis of the principles applicable to public interest litigation. The City appealed, arguing that the trial judge erred in her conclusions that the Bylaw provisions violated s. 7 and were not saved by s. 1 of the Charter. The City also argued that by declaring the Bylaw provisions of no force or effect, the trial judge improperly intruded into the City's legislative jurisdiction to make complex policy decisions concerning the allocation of scarce parkland and other public resources. The intervenors, Attorney General of British Columbia and the Union of British Columbia Municipalities, supported the City. The intervenors, the British Columbia Civil Liberties Association, Pivot Legal Society and the Poverty and Human Rights Centre, supported the defendants in the appeal.

The British Columbia Court of Appeal found no basis to interfere with the trial judge's conclusion that the prohibition in the Bylaws on the erection of temporary shelter violated the rights of homeless people to life, liberty and security of the person under s. 7, and the violation was not justified under s. 1 of the Charter. Nor did the trial judge improperly intrude into the policy decisions of elected officials in finding the Bylaw provisions to be of no force or effect insofar as they prohibited homeless persons from erecting temporary shelter. On all but one of the substantive legal issues, the court did not accede to the City's arguments, including the appeal from the award of special costs to the defendants. While the court disagreed with the trial judge's finding that the prohibition in the Bylaws was arbitrary, that did not affect the outcome of the appeal. The court allowed the appeal only to the extent of varying the wording of the order to more accurately reflect the issue considered at trial and the trial judge's reasons for judgment. The court ordered that the defendants were entitled to special costs of the appeal.

Civil Rights - Topic 209

Life - Rights of homeless persons (incl. temporary overnight shelter) - [See first and second Civil Rights - Topic 788 and Civil Rights 3107.2 ].

Civil Rights - Topic 725

Liberty - Charter of Rights and Freedoms - Liberty defined - [See third Civil Rights - Topic 788 ].

Civil Rights - Topic 726

Liberty - Charter of Rights and Freedoms - Denial of liberty - What constitutes - [See first and second Civil Rights - Topic 788 and Civil Rights 3107.2 ].

Civil Rights - Topic 783

Liberty - Particular rights - Economic or property rights (incl. choice of work) - The trial judge declared that (a) sections of the City of Victoria's Parks Regulation Bylaw and Streets and Traffic Bylaw that prohibited homeless people who were legally sleeping in parks from erecting temporary shelter violated s. 7 of the Charter in that they deprived homeless people of the rights to life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice, and were not saved by s. 1 of the Charter; and (b) the sections of the Bylaws were of no force and effect insofar as they applied to prevent homeless people from erecting temporary shelter - The City appealed - The City argued that the trial judge's order gave the respondents (homeless people living in Victoria) a "right to camp on public property", and this made their claim one about property rights - The British Columbia Court of Appeal rejected the argument - The court stated that "The right asserted by the respondents and recognized by the trial judge is the right to provide oneself with rudimentary shelter on a temporary basis in areas where the City acknowledges that people can, and must, sleep. This is not a property right, but a right to be free of a state-imposed prohibition on the activity of creating or utilizing shelter, a prohibition which was found to impose significant and potentially severe health risks on one of the City's most vulnerable and marginalized populations" - See paragraphs 98 to 101.

Civil Rights - Topic 788

Liberty - Particular rights - Rights of homeless persons (incl. temporary overnight shelter) - The trial judge declared that sections of the City of Victoria's Parks Regulation Bylaw and Streets and Traffic Bylaw that prohibited homeless people who were legally sleeping in parks from erecting temporary shelter violated s. 7 of the Charter in that they deprived homeless people of the rights to life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice, and were not saved by s. 1 of the Charter - The trial judge concluded that the prohibition was both arbitrary and overbroad and hence not consistent with the principles of fundamental justice - The City appealed - The British Columbia Court of Appeal held that the trial judge erred in the application of the test for arbitrariness - The City described the objective of the Bylaws as "maintaining the environmental, recreational and social benefits of urban parks" - It could not be said that the prohibition on the erection of shelter bore no relation to the legislative goal - Although the City overshot that goal by enacting an absolute ban on the erection of temporary overhead shelter, and that overbreadth resulted in the Bylaws being arbitrary in some applications, the Bylaws were not arbitrary in the sense described in Chaoulli (S.C.C.) - The court concluded that while the trial judge erred in finding that the Bylaws were arbitrary, she did not err in finding that the deprivation of the rights of homeless persons to life, liberty and security of the person was not in accordance with the principles of fundamental justice, as the Bylaws were overbroad - See paragraphs 117 to 124.

Civil Rights - Topic 788

Liberty - Particular rights - Rights of homeless persons (incl. temporary overnight shelter) - The trial judge declared that sections of the City of Victoria's Parks Regulation Bylaw and Streets and Traffic Bylaw that prohibited homeless people who were legally sleeping in parks from erecting temporary shelter violated s. 7 of the Charter in that they deprived homeless people of the rights to life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice, and were not saved by s. 1 of the Charter - The City appealed - The trial judge had found that compliance with the Bylaws exposed homeless people to a risk of serious harm, including death from hypothermia, a finding not challenged on appeal - However, it was argued that the trial judge erred in finding that this risk of harm constituted an interference with the rights to life, liberty and security of the person of the respondents (homeless people living in Victoria) - The City argued that the Bylaws did not deprive the respondents of life, liberty or security of the person because the City permitted homeless people to sleep in parks and to adequately protect themselves from the elements short of erecting shelter - The British Columbia Court of Appeal stated that "this argument simply amounts to a collateral attack on the findings of fact of the trial judge. The trial judge found that the City prohibits the homeless from erecting any form of overhead protection, and that some form of overhead protection is part of what is necessary for adequate protection from the elements ... The City does not argue that these findings constitute overriding and palpable error. The City's argument on this ground of appeal appears to be an attempt to re-argue the case at trial, which is not the purpose of an appeal" - See paragraphs 102 to 103.

Civil Rights - Topic 788

Liberty - Particular rights - Rights of homeless persons (incl. temporary overnight shelter) - The trial judge declared that sections of the City of Victoria's Parks Regulation Bylaw and Streets and Traffic Bylaw that prohibited homeless people who were legally sleeping in parks from erecting temporary shelter violated s. 7 of the Charter in that they deprived homeless people of the rights to life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice, and were not saved by s. 1 of the Charter - The City appealed - The intervenor, Attorney General of British Columbia, argued that the trial judge misinterpreted the nature of the liberty interest protected by s. 7 of the Charter - The Attorney General argued that the trial judge's analysis was internally inconsistent because she found that the respondents (homeless people living in Victoria) had "no choice" but to sleep outside and that the erection of shelter was a necessary response to that situation, but then characterized the creation of shelter as a fundamental personal "choice" - Alternatively, the Attorney General said that the choice to erect shelter was not a fundamental personal decision falling within the narrow sphere of protection afforded by s. 7 - The British Columbia Court of Appeal held that the Attorney General's first argument was not supported in law - The fact that a claimant had not chosen their underlying situation did not mean that a decision taken in response to it was not protected by the s. 7 liberty interest - The court also rejected the argument that the choice to erect shelter to protect oneself from the elements was not a decision of "fundamental personal importance" - Prohibiting the homeless from taking simple measures to protect themselves through the creation or utilization of rudimentary forms of overhead protection, in circumstances where there was no practicable shelter alternative, was a significant interference with their dignity and independence - The choice to shelter oneself in this context was properly included in the right to liberty under s. 7 - See paragraphs 104 to 110.

Civil Rights - Topic 788

Liberty - Particular rights - Rights of homeless persons (incl. temporary overnight shelter) - The trial judge declared that (a) sections of the City of Victoria's Parks Regulation Bylaw and Streets and Traffic Bylaw that prohibited homeless people who were legally sleeping in parks from erecting temporary shelter violated s. 7 of the Charter in that they deprived homeless people of the rights to life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice, and were not saved by s. 1 of the Charter; and (b) the sections of the Bylaws were of no force and effect insofar as they applied to prevent homeless people from erecting temporary shelter - The City appealed, raising the issue of whether the trial judge's order granted a positive benefit to the respondents (homeless people living in Victoria) - The City claimed that because the trial judge's decision was founded on the failure of the government to provide sufficient shelter beds, the order effectively granted a right to adequate alternatives to sleeping in public spaces and imposed a positive obligation on the City to either provide shelter spaces or to make available parkland and other public spaces for camping - The British Columbia Court of Appeal rejected the argument - The trial judge's decision did not impose positive obligations on the City to provide adequate alternative shelter, or to take any positive steps to address the issue of homelessness - The decision only required the City to refrain from legislating in a manner that interfered with the s. 7 rights of the homeless - While the factual finding of insufficient shelter alternatives formed an important part of the trial judge's analysis, that did not transform either the respondents' claim or the trial judge's order into a claim or right to shelter - See paragraphs 90 to 97.

Civil Rights - Topic 1203

Security of the person - General - Rights of homeless persons (incl. temporary overnight shelter) - [See first and second Civil Rights - Topic 788 and Civil Rights 3107.2 ].

Civil Rights - Topic 1210

Security of the person - General - Denial of security - What constitutes - [See first and second Civil Rights - Topic 788 and Civil Rights 3107.2 ].

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle - The trial judge declared that sections of the City of Victoria's Parks Regulation Bylaw and Streets and Traffic Bylaw that prohibited homeless people who were legally sleeping in parks from erecting temporary shelter violated s. 7 of the Charter in that they deprived homeless people of the rights to life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice, and were not saved by s. 1 of the Charter - In determining whether the deprivation was in accordance with the principles of fundamental justice the trial judge applied the test for overbreadth from R. v. Heywood (S.C.C. 1994) - The City appealed, arguing that this was the wrong test as the Supreme Court of Canada narrowed the test for overbreadth in R. v. Clay (2003) to one of "gross disproportionality" - The respondents argued that although the Supreme Court referred to a grossly disproportionate test for overbreadth in Clay, the court returned to the principles enunciated in Heywood in R. v. Demers (2004), making no mention of Clay - The British Columbia Court of Appeal agreed with the respondents' submissions and found no error in the trial judge's interpretation or application of the overbreadth principle - The prohibition on shelter contained in the Bylaws was overbroad because it was in effect at all times, in all public places in the City - There were a number of less restrictive alternatives that would further the City's concerns regarding the preservation of urban parks - See paragraphs 112 to 116.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - General - Application of - General - The trial judge declared that sections of the City of Victoria's Parks Regulation Bylaw and Streets and Traffic Bylaw that prohibited homeless people who were legally sleeping in parks from erecting temporary shelter violated s. 7 of the Charter and were not saved by s. 1 of the Charter - The City appealed - The City and the intervenor, Attorney General of British Columbia, argued that there was insufficient state action to engage s. 7 of the Charter - The British Columbia Court of Appeal rejected the argument - The trial judge concluded that "The Bylaws at issue prohibit certain conduct. Section 18 of the Parks Regulation Bylaw provides that a person who contravenes the provisions commits an offence and is liable to penalties imposed by the Bylaw and the Offence Act ... the Bylaws at issue in this proceeding constitute state action that directly engages the justice system and is sufficient in order to fall within the scope of s. 7" - No error had been shown on the part of the trial judge in reaching that conclusion - See paragraphs 82 to 85.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - General - Application of - General - The trial judge declared that sections of the City of Victoria's Parks Regulation Bylaw and Streets and Traffic Bylaw that prohibited homeless people who were legally sleeping in parks from erecting temporary shelter violated s. 7 of the Charter in that they deprived homeless people of the rights to life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice, and were not saved by s. 1 of the Charter - The City appealed - The City and the intervenor, Attorney General of British Columbia, argued that the requirement that the state action cause the deprivation of life, liberty or security of the person was not met in this case because the prohibition on the erection of shelter was not the cause of the state of homelessness or insecurity of the respondents (homeless people living in Victoria) - In claiming that the state action had to be the sole cause of the deprivation, they relied on the comment of Justice Bastarache in his dissenting reasons in Gosselin (S.C.C.) that "state action ... in and of itself" must deprive the claimant of her life, liberty or security of the person - The British Columbia Court of Appeal rejected the argument - The passage relied on from Gosselin did not form part of the analysis of the majority - Further, Bastarache, J.'s, comments were more an expression of his concern about the absence of state action in that case, rather than an attempt to formulate a general test for causation - Moreover, an "in and of itself" causation requirement was incompatible with other Supreme Court of Canada jurisprudence - The trial judge found the Bylaws were the direct cause of the deprivations of life, liberty and security of the person that flowed from the prohibition on shelter - The deprivations of life, liberty or security of the person which might arise as a result of being homeless, without any interaction with the state, were not at issue - See paragraphs 86 to 89.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The trial judge declared that sections of the City of Victoria's Parks Regulation Bylaw and Streets and Traffic Bylaw that prohibited homeless people who were legally sleeping in parks from erecting temporary shelter violated s. 7 of the Charter in that they deprived homeless people of the rights to life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice, and were not saved by s. 1 of the Charter - The City appealed - The British Columbia Court of Appeal held that the trial judge made no error in concluding that the violation of s. 7 rights was not justified as a reasonable limit pursuant to s. 1 of the Charter - The trial judge accepted that the absolute prohibition on the erection of temporary shelter was rationally connected to the objective of protecting urban parks - However, she concluded, and the court agreed, that the prohibition went further than was necessary in pursuit of that legislative goal, and was therefore not minimally impairing, and the benefits of the prohibition did not outweigh the deleterious effects - The court stated that "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" - See paragraphs 125 to 131.

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - The trial judge declared that (a) sections of the City of Victoria's Parks Regulation Bylaw and Streets and Traffic Bylaw that prohibited homeless people who were legally sleeping in parks from erecting temporary shelter violated s. 7 of the Charter in that they deprived homeless people of the rights to life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice, and were not saved by s. 1 of the Charter; and (b) the sections of the Bylaws were of no force and effect insofar as they applied to prevent homeless people from erecting temporary shelter - The City appealed - The intervenor, Attorney General of British Columbia, argued that the appropriate remedy was an individual remedy under s. 24 of the Charter, rather than a finding that the Bylaws were of no force and effect under s. 52 of the Constitution Act, 1982 - The Attorney General said that what was really at issue in this case was not the validity of the Bylaws themselves, but rather the application of them to the individual respondents (homeless persons living in Victoria) - As such, the Attorney General said that it was not appropriate for the court to grant a remedy in the form of a declaration, but instead the court should assess the respondents' positions on a case-by-case basis, if and when they were prosecuted, and should grant constitutional exemptions in appropriate cases - The British Columbia Court of Appeal rejected the argument - A remedy under s. 24, in the form of constitutional exemptions or otherwise, was not appropriate to protect the respondents' Charter rights in this case - The court also held that the combination of the Bylaws and the City's operational policy, as they applied where there was insufficient shelter in the City for homeless people, was properly characterized as "law" for the purpose of s. 52 - See paragraphs 132 to 152.

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - The trial judge granted a declaration that: "(a) Sections 13(1) and (2), 14(1) and (2), and 16(1) of the Parks Regulation Bylaw No. 07-059 and ss. 73(1) and 74(1) of the Streets and Traffic Bylaw No. 92-84 violate s. 7 of the Canadian Charter of Rights and Freedoms 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 are not saved by s. 1 of the Charter. (b) Sections 13(1) and (2), 14(1) and (2), and 16(1) of the Parks Regulation Bylaw No. 07-59 and ss. 73(1) and 74(1) of the Streets and Traffic Bylaw No. 92-84 are of no force and effect insofar and only insofar as they apply to prevent homeless people from erecting temporary shelter" - On appeal, the British Columbia Court of Appeal was not satisfied that the declarations granted accurately reflected the law, or the trial judge's findings and reasons for judgment - In fashioning a remedy under s. 52(1) of the Constitution Act, 1982, care had to be taken to ensure that laws were declared of no force or effect only to the extent of the inconsistency with the Constitution of Canada - The only provisions of the Bylaws that were shown to be unconstitutional in the circumstances were ss. 14(1)(d) and 16(1) of the Parks Regulation Bylaw - The declarations therefore ought to have been limited to ss. 14(1)(d) and 16(1) of the Parks Regulation Bylaw - The court also considered that 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" - See paragraphs 155 to 160.

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - The trial judge declared that (a) sections of the City of Victoria's Parks Regulation Bylaw and Streets and Traffic Bylaw that prohibited homeless people who were legally sleeping in parks from erecting temporary shelter violated s. 7 of the Charter in that they deprived homeless people of the rights to life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice, and were not saved by s. 1 of the Charter; and (b) the sections of the Bylaws were of no force and effect insofar as they applied to prevent homeless people from erecting temporary shelter - On appeal, the British Columbia Court of Appeal stated that one issue with respect to the declaration arose out of the fact that the impugned Bylaw provisions were only unconstitutional because there were insufficient resources in the City of Victoria to shelter the homeless - If there were adequate shelter beds or appropriate designated areas outside of parks to accommodate the homeless, the Bylaw provisions might well be valid - The court held that the appropriate manner of dealing with this problem was to allow the City to apply for a termination of the declaration if it could demonstrate that the conditions that made the impugned provisions unconstitutional had ceased to exist - The court therefore varied the declaration to read that the Supreme Court could terminate the declaration on the application of the City upon being satisfied that the impugned sections no longer violated s. 7 of the Charter - See paragraphs 162 to 166.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Life, liberty and security of the person - [See second and third Civil Rights - Topic 788 ].

Constitutional Law - Topic 2507.2

Determination of validity of statutes or acts - Declaration of invalidity - [See all Civil Rights - Topic 8380.2 ].

Courts - Topic 2006

Jurisdiction - General principles - Issues not suitable for judicial determination - General - [See Courts - Topic 2022 ].

Courts - Topic 2022

Jurisdiction - Conditions precedent - Requirement of justiciable issue - The trial judge declared that sections of the City of Victoria's Parks Regulation Bylaw and Streets and Traffic Bylaw that prohibited homeless people who were legally sleeping in parks from erecting temporary shelter violated s. 7 of the Charter and were not saved by s. 1 of the Charter and were of no force and effect insofar as they applied to prevent homeless people from erecting temporary shelter - The City appealed - The City and the intervenor, the Attorney General of British Columbia, argued that the issue was political, and the trial judge's decision was an improper intrusion into the policy decisions of elected officials - The British Columbia Court of Appeal rejected the argument - The fact that a legal issue raised political concerns did not render it non-justiciable - The court was not asked to adjudicate on the wisdom of policy decisions of elected officials on how to best allocate public resources to address the problem of homelessness - The question before the court was whether the provisions of the Bylaws that prohibited the erection of temporary overhead shelter violated the rights of homeless persons living in Victoria under s. 7 of the Charter, in circumstances in which there were insufficient alternative shelter opportunities for the City's homeless - This was a proper question for a court to address - See paragraphs 63 to 69.

Municipal Law - Topic 1427

Powers of municipalities - Respecting land - Dedicated for park purposes - [See Civil Rights - Topic 3107.2 ].

Municipal Law - Topic 1429

Powers of municipalities - Respecting land - Private use of public land - [See Civil Rights - Topic 3107.2 ].

Practice - Topic 7470.5

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Public interest or test cases - The trial judge declared that sections of the City of Victoria's Parks Regulation Bylaw and Streets and Traffic Bylaw that prohibited homeless people who were legally sleeping in parks from erecting temporary shelter violated s. 7 of the Charter and were not saved by s. 1 of the Charter and were of no force and effect insofar as they applied to prevent homeless people from erecting temporary shelter - The trial judge awarded the defendants (homeless people who lived in Victoria) special costs of the trial on the basis of the principles applicable to "public interest litigation" - On appeal, the City argued that it was an error of law to award public interest litigation special costs against the City, because it was not a Crown entity - The British Columbia Court of Appeal rejected the argument - The power to award special costs was exercised under the court's inherent jurisdiction with respect to costs and rule 57(1) of the Rules of Court - The Rules referred to "parties", and there was nothing in them that distinguished between Crown and non-Crown entities - There was no good reason to distinguish municipalities from other government entities governed by the Charter in considering whether, in a particular case, public interest litigation special costs were appropriate - See paragraphs 170 to 174.

Practice - Topic 7470.5

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Public interest or test cases - The trial judge declared that sections of the City of Victoria's Parks Regulation Bylaw and Streets and Traffic Bylaw that prohibited homeless people who were legally sleeping in parks from erecting temporary shelter violated s. 7 of the Charter and were not saved by s. 1 of the Charter and were of no force and effect insofar as they applied to prevent homeless people from erecting temporary shelter - The trial judge awarded the defendants (homeless people who lived in Victoria) special costs of the trial on the basis of the principles applicable to "public interest litigation" - The City appealed, arguing that it was an error of law to award public interest litigation special costs against the City - The City argued that the trial judge improperly considered economic issues by looking to the City's "deep pockets" and the economics and profitability of the law firm which represented the defendants on a pro bono basis - The British Columbia Court of Appeal rejected the argument - The capacity of a party to bear the costs of the proceedings was a relevant factor for the court to consider - There was no evidence before the trial judge concerning the economics and profitability of the law firm that represented the defendants, and she made no reference to any such considerations - The point made by the trial judge was that if the law firm had not represented the defendants on a pro bono basis, it was unlikely that they would have been able to prosecute their claim - There was a public interest in encouraging experienced counsel to undertake Charter litigation of broad concern on a pro bono basis - See paragraphs 175 to 177.

Practice - Topic 7470.5

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Public interest or test cases - The British Columbia Court of Appeal stated that "the following may be identified as the most relevant factors to determining whether special costs should be awarded to a successful public interest litigant: (a) The case involves matters of public importance that transcend the immediate interests of the named parties, and which have not been previously resolved; (b) The successful party has no personal, proprietary or pecuniary interest in the outcome of the litigation that would justify the proceeding economically; (c) As between the parties, the unsuccessful party has a superior capacity to bear the costs of the proceeding; and (d) The successful party has not conducted the litigation in an abusive, vexatious or frivolous manner. The basic question underlying these factors is whether the public interest in resolving a legal issue of broad importance, which would otherwise not be resolved, justifies the exceptional measure of awarding special costs to a successful litigant" - See paragraphs 188 to 189.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - The trial judge declared that sections of the City of Victoria's Parks Regulation Bylaw and Streets and Traffic Bylaw that prohibited homeless people who were legally sleeping in parks from erecting temporary shelter violated s. 7 of the Charter and were not saved by s. 1 of the Charter and were of no force and effect insofar as they applied to prevent homeless people from erecting temporary shelter - The City appealed - The City applied to adduce further evidence on appeal regarding the City's efforts to address homelessness in Victoria - The British Columbia Court of Appeal refused to admit the fresh evidence - Some of the evidence was available before trial and did not meet the due diligence requirement - To the extent that the evidence related to the City's efforts after the time of trial, it was not relevant to the issue before the trial judge, namely the constitutionality of the Bylaws - Further, the evidence would not change one of the principal findings of fact on which the trial judge's decision was based: that the number of homeless people in the City exceeded the number of available shelter beds - See paragraphs 59 to 61.

Cases Noticed:

Pottinger v. City of Miami (1992), 810 F. Supp. 1551 (S.D. Fla.), refd to. [para. 3].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 35].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, refd to. [para. 35].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 35].

Health Services and Support - Facilities Subsector Bargaining Association et al. v. British Columbia, [2007] 2 S.C.R. 391; 363 N.R. 226; 242 B.C.A.C. 1; 400 W.A.C. 1; 2007 SCC 27, refd to. [para. 35].

Gosselin v. Québec (Procureur général) (2002), 298 N.R. 1; 2002 SCC 84, refd to. [para. 44].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 106 D.L.R.(3d) 212, refd to. [para. 60].

Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, refd to. [para. 64].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 65].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 65].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 65].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 66].

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305; 2005 SCC 62, refd to. [para. 78].

Canadian Federation of Students (B.C.) et al. v. Greater Vancouver Transportation Authority et al. (2009), 389 N.R. 98; 272 B.C.A.C. 29; 459 W.A.C. 29; 2009 SCC 31, refd to. [para. 78].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 83].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 83].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 87].

R. v. Parker (T.) (2000), 135 O.A.C. 1; 49 O.R.(3d) 481 (C.A.), refd to. [para. 106].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 112].

R. v. Clay (C.J.), [2003] 3 S.C.R. 735; 313 N.R. 252; 181 O.A.C. 350; 2003 SCC 75, refd to. [para. 113].

R. v. Demers (R.), [2004] 2 S.C.R. 489; 323 N.R. 201; 2004 SCC 46, refd to. [para. 114].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 127].

R. v. Ferguson (M.E.), [2008] 1 S.C.R. 96; 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 SCC 6, consd. [para. 139].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 144].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 158].

McCullock-Finney v. Barreau du Québec, [2004] 2 S.C.R. 17; 321 N.R. 361; 2004 SCC 36, refd to. [para. 172].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [para. 174].

British Columbia (Minister of Water, Land and Air Protection) et al. v. Information and Privacy Commissioner (B.C.) et al. (2005), 214 B.C.A.C. 158; 353 W.A.C. 158; 50 B.C.L.R.(4th) 19; 2005 BCCA 368, refd to. [para. 176].

Guide Outfitters Association v. British Columbia (Information and Privacy Commissioner) - see British Columbia (Minister of Water, Land and Air Protection) et al. v. Information and Privacy Commissioner (B.C.) et al.

Broomer et al. v. Ontario (Attorney General) et al. (2004), 187 O.A.C. 192; 121 C.R.R.(2d) 163 (Div. Ct.), refd to. [para. 177].

MacDonald v. University of British Columbia, [2004] B.C.T.C. 412; 26 B.C.L.R.(4th) 190; 2004 BCSC 412, refd to. [para. 179].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 180].

Agar v. Morgan et al. (2005), 218 B.C.A.C. 312; 359 W.A.C. 312; 2005 BCCA 579, refd to. [para. 180].

Barclay v. British Columbia et al. (2006), 231 B.C.A.C. 98; 381 W.A.C. 98; 2006 BCCA 434, refd to. [para. 181].

Little Sisters Book and Art Emporium v. Minister of National Revenue, [2007] 1 S.C.R. 38; 356 N.R. 83; 253 B.C.A.C. 1; 388 W.A.C. 1; 2007 SCC 2, refd to. [para. 191].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 126]; sect. 7 [para. 70]; sect. 24(1) [para. 134].

Constitution Act, 1982, sect. 52(1) [para. 135].

Victoria (City) Bylaws, Parks Regulation Bylaw, Bylaw No. 07-059, sect. 13, sect. 14, sect. 16(1), sect. 18 [para. 22].

Victoria (City) Bylaws, Streets and Traffic Bylaw, Bylaw No. 92-84, sect. 73(1), sect. 74(1) [para. 23].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.), vol. 1, p. 16-9, ྷ 16.6 [para. 164].

Irvine, Frederick M., McLachlin, Beverley M., and Taylor, James P., British Columbia Practice (3rd Ed.) (Looseleaf), vol. 3, p. 57-4 [para. 171].

Jackman, Martha, The Protection of Welfare Rights Under the Charter (1988), 20 Ott. L. Rev. 257, p. 326 [para. 75].

Ontario Law Reform Commission, Report on the Law of Standing (1989), generally [para. 179].

Counsel:

G. McDannold, for the appellant;

C.J. Boise Parker and I. Faulkner, for the respondents;

J. Penner and V.L. Jackson, for the intervenor, Attorney General of British Columbia;

R.A. Skolrood and M.S. Jones, for the intervenor, British Columbia Civil Liberties Association;

G. Brodsky, M. Buckley and K. Brooks, for the intervenor, Poverty and Human Rights Centre;

B. Elwood, for the intervenor, Pivot Legal Society;

R.E. Young, for the intervenor, Union of British Columbia Municipalities.

This appeal was heard on June 10 to 11, 2009, at Victoria, B.C., before Levine, Neilson and Groberman, JJ.A., of the British Columbia Court of Appeal. The Court of Appeal delivered the following judgment on December 9, 2009.

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