B.C.’s Human Rights Commissioner said she was disappointed with the Supreme Court’s decision, upholding the City of Victoria’s authority to make bylaws that that restrict people from sheltering in city parks.
In October 2024, Krystle Fox, Kimberly Scheu and Shea Smith filed a petition to the Supreme Court of B.C., saying the City of Victoria’s decision to ban overnight sheltering at Victoria West Park and Irving Park was “unreasonable” and failed to proportionally balance the petitioners’ rights under the Charter of Rights and Freedoms.
The case was delayed in April 2025 when the city put forward changes to the Parks Regulation Bylaw that replaced a list of 24 parks where sheltering was prohibited with a list of 34 parks where sheltering was allowed – excluding Vic West and Irving. The bylaw change was later added as part of the petition for judicial review.
In 2008, the courts struck down a ban on outdoor sheltering outdoors in the city, saying when there are inadequate accessible indoor shelter spaces to accommodate those experiencing homelessness, those people are allowed to erect temporary overnight shelters in public parks in exercise of the right not to be deprived of life, liberty and security under the charter.
“The difficult circumstances faced by the petitioners and other unhoused persons in finding and maintaining adequate shelter are not disputed. Nor is the fact that there are insufficient indoor shelter spaces available for unhoused persons in the city. The city thus accepts that it cannot enact a complete prohibition on temporary overnight sheltering in its parks,” noted the June 11 decision from Justice Jacqueline Hughes.
In their affidavits, dated from September 2024, the petitioners told stories of spending years in and out of shelters, sleeping on streets and in city parks and having their belongings taken by bylaw and police officers. All three eventually ended up living at Irving or Victoria West parks before the sheltering ban. Smith died not long after the petition was put forward while sheltering alone.
They made a case that sleeping in the parks can be safer than on the streets as there is typically a group of regulars at the parks, and an established community. Vic West and Irving are also close to needed amenities like bathrooms, showers, lockers, food and outreach organizations.
“The closure of those two parks, however, is only the tip of the iceberg. Decisions like this are emblematic of a wider policy of attempting to tackle homelessness by punishing its victims. Trying to fix the homelessness crisis through prohibitions and police does not make homelessness go away. But it does make being homeless much more dangerous – with often tragic results,” said Alexander Kirby, the lawyer for the petitioners, in a 2024 interview.
Hughes had to determine whether the bylaws were legislative, which would allow the court to explore if the bylaws are legal and fair in relation to the charter, or administrative, where the courts would only have to determine whether if the city had the legal power to make those bylaws. The petitioners argued the former, while the city argued the latter.
She ruled that the 2025 bylaw “demonstrates all the hallmarks of a legislative decision,” as a result of former case law, finding the petitioners were unable to persuade her to think the bylaw was an administrative decision.
“When passing bylaws, the elected officials are not applying a statutory power of decision; they are creating laws through an exercise of the delegated legislative power. The bylaw enacted by the municipality in turn becomes the statutory power pursuant to which discretionary decisions are made, i.e. bylaw enforcement actions, certain zoning decisions, or applications for land use permits,” noted Hughes, speaking on a submission from the Attorney General. “When the statutory powers conferred in a bylaw are subsequently exercised by an official empowered to do so under the bylaw, it constitutes an administrative decision.”
Because the justice declined to quash the 2025 bylaw, by consequence the challenge against the 2024 bylaw was dismissed as well. Although the court dismissed the case, the petitioners can still bring the case back as a constitutional challenge to the bylaws.
Human Rights Commissioner Kasari Govender’s office was an intervenor in the case – meaning they were an independent third party that could make submissions to the judge. She noted the decision presents another obstacle to unhoused people seeking to challenge municipal bylaws that “undermine their rights and dignity.”
“The requirement to protect the human rights of those who are some of the most vulnerable in society cannot be overridden by a government’s interest in maintaining aesthetically pleasing public parks and streets,” noted Human Rights Commissioner Kasari Govender in a news release. “The right to adequate housing and non-discrimination are human rights protected under the International Covenant on Economic, Social, and Cultural Rights, which was ratified across Canada 50 years ago and applies to all levels of government.”
The commissioner intervened primarily to make submissions about the legal obligations of local governments to respect constitutional values of non-discrimination when making decisions that affect unhoused people, they noted.
“People with disabilities and Indigenous peoples are significantly more likely to be unhoused. Failures to account for the disproportionate impact of street-based homelessness—and the policies that restrict the ability of people to find adequate shelter—can violate constitutional and international legal protections for substantive equality,” noted Govender in the release.