IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Shortly after midnight on November 13, 2013, Christopher Lewis went for a walk in Bakerview Park.  A police officer was dispatched to the park after someone phoned reporting a suspicious person there.  Mr. Lewis expected the police to come, because he knew that he was violating a City of Surrey bylaw which prohibited persons from being in any park between dusk and dawn the next day.  He told the officer that he would not leave until he was given a violation ticket.  Mr. Lewis now asks the court to dismiss the charge against him because, he says, it violates his rights under section 7 of the Canadian Charter of Rights and Freedoms.

[2]           Section 9 of the Surrey Parks and Recreation Bylaw reads:

[3]           A person who is convicted of violating the bylaw is subject to a fine of between $50 and $2000 or imprisonment for up to three months.

[4]           Section 7 of the Canadian Charter of Rights and Freedoms states:

[5]           If a court finds that a particular law violates section 7, then the burden shifts to the state or government body enforcing the law to prove that the law is saved by section 1 of the Charter, which states that:

[6]           Mr. Lewis focuses his argument on his liberty rights in the sense that he believes that he should be free to walk peacefully in any public park at any time of the day or night.  He does not suggest that the bylaw adversely affects the security of his person or his life.

[7]           In considering cases under section 7 of the Charter, the courts have, interpreted the concept of “liberty” to mean something more than any minor interference with a citizen’s freedom to choose to do what he or she wants.  For example, the Supreme Court of Canada has stated:

[8]           Although Mr. Lewis believes passionately that walking peacefully in a park at night involves a very significant exercise of his right to liberty, it is not obvious to me that this activity involves a fundamental notion of human dignity or a decision of fundamental personal importance.

[9]           It is not unusual in urban society to have laws which restrict a citizen’s ability to choose various activities.  For example, it is lawful for a person over the age of 19 to consume alcohol in his or her residence, on his or her property, in a bar or at a sporting event.  However, a person walking down the street sipping from an open beer bottle will be in violation of the Liquor Control and Licensing Act.  Many cities require that a person walking his or her dog must keep the dog on a leash but there are often enclosed areas in parks which permit dogs to run free without a leash.  Some people might take issue with the restriction on one’s personal choice to allow a dog to run free at all times.  All roads are controlled by speed limit laws and signs.  Yet, when there is no traffic such as late at night or holidays, a person who decides to drive over the speed limit because no one’s in any danger, is likely subject to being given a speeding ticket anyway.

[10]        Like the above examples, whether someone should be prohibited from choosing to walk in the park at night is just not an issue of fundamental personal importance.

[11]        I would tentatively agree with the Crown’s position that the liberty interest asserted by Mr. Lewis is not the type of liberty interest that section 7 covers.  However, I cannot say I am certain of this conclusion.  That is because there is at least one case decided by the Supreme Court of Canada which holds that a law which prohibits a person from going to a park violates that person’s liberty right under section 7 of the Charter.

[12]        That case, R. v. Haywood, 1994 CanLII 34 dealt with former section 179 of the Criminal Code.  Haywood had been convicted of committing sexual offences against children.  The Criminal Code provided that persons convicted of such offences were prohibited for life from loitering in public parks, playgrounds, school grounds or bathing areas.  Haywood was subsequently convicted under section 179 of going to a public park while carrying a camera, apparently trying to take pictures of children who were playing in the park.

[13]        The Supreme Court of Canada accepted Haywood’s argument that the law violated his right to liberty as guaranteed under section 7 of the Charter.  Writing for the majority, Cory J stated:

[14]        Mr. Lewis’ situation is quite different from Haywood because the Criminal Code section was aimed only at convicted sex offenders.  The Surrey bylaw on the other hand, prohibits everyone from being in a park after dusk.  Thus, Mr. Lewis is not prohibited from going to a public place to which other persons are entitled to go. 

[15]        Nonetheless, it is arguable that merely prohibiting everyone from being in a park after dusk, with no differentiation between peaceful walkers and wrongdoers is a restriction on a liberty interest covered by section 7 of the Charter.

[16]        Mr. Lewis was not represented by counsel and his argument in this case is somewhat unfocused.  He concentrated more on criticizing Surrey’s justification for enacting the bylaw rather than on the legal basis upon which he believes that his liberty rights were infringed. 

[17]        My point here is that Mr. Lewis has not raised an issue which falls within the meaning that the courts have given to “liberty” in the context of section 7 of the Charter of Rights. 

[18]        My view is that his best legal argument is as follows.  “The bylaw infringes a vital liberty interest protected by section 7 of the Charter.  This is the right of any citizen to choose where and when he goes to public spaces in the city.  It is unlikely, for example, that a city would enact a bylaw prohibiting persons from walking on the sidewalks at night.  A person can choose to walk on a sidewalk whenever he or she wants and is not required to explain or justify his conduct to anyone.  A park is really just another public space open to anyone in the public to enjoy.  It is quite different from other public facilities such as community centres, swimming pools, skating rinks or even City Hall.  A park is a truly open public space, just like a highway or sidewalk.  As it is presently worded, the bylaw treats peaceful law-abiding citizens as if they were persons committing unlawful acts.  This law then is both arbitrary and overbroad.  That is, there is no rational justification for deciding that everyone in a park after dusk should be subject to prosecution under the bylaw.  That is, the bylaw is so broad that it captures people who have really done nothing wrong.  Thus, the interference with Mr. Lewis’ (and the rest of the public) liberty interest has not been done in accordance with the principles of fundamental justice.”  (These are my words not Mr. Lewis’.)

[19]        There are two cases from British Columbia in which courts have determined that bylaws which prohibit homeless people from erecting shelters in parks, in some circumstances violate their right to liberty and security of the person under section 7 of the Charter of Rights.  These are: Victoria (City) v. Adams 2009 BCCA 563 and Abbotsford (City) v. Shantz 2015 BCSC 1909.  The facts of these cases are entirely different from the case at bar.

[20]        The cases did not address the issue of prohibiting persons from being in a park.  Rather, the cases dealt with a specific prohibition against anyone erecting temporary shelters in parks in circumstances where there were not sufficient existing shelters for homeless people in the city.  Both courts heard extensive evidence which established that the impact of these bylaws on homeless persons was quite serious.  The courts found that their lives, personal security and safety and liberty to choose to shelter oneself from the elements, were all seriously compromised.

[21]        Therefore, the decisions in these two cases have no direct application to Mr. Lewis’ situation.  However, these cases, in particular Shantz, supra, provide a thorough and succinct analysis of all the relevant legal principles applicable to applications to have bylaws declared unconstitutional because of violations of section 7 of the Charter.

[22]        I will assume that the Surrey bylaw interferes with Mr. Lewis’ liberty interest under section 7 of the Charter to make a fundamental human decision of when and where to walk in an open public space.  The prejudice caused to Mr. Lewis by this bylaw was to prevent him from exercising the right to make this fundamental decision.  Mr. Lewis did not introduce evidence to show that there was any other significant impact on him.

[23]        Thus, the essential question in this case is whether this deprivation of Mr. Lewis’ liberty interest is contrary to the principles of fundamental justice.  To answer that question I must determine:

[24]        The evidence of both the police officer and a witness from the Parks and Recreation Department of the City of Surrey confirmed that the city experiences many unlawful activities carried out at night in parks.  People dump trash illegally; there are often loud parties, with people unlawfully consuming alcohol in public; people deface park property by writing graffiti on it; people traffic in and use drugs; some people even set bonfires.  

[25]        A bylaw prohibiting everyone from being in a park after dusk gives the police and other persons enforcing bylaws the ability to prevent potential illegal activity before it occurs or to remove potential troublemakers from a park without having to engage in extensive investigation.  It may be that the police will encounter people at parks at night committing unlawful acts, but in many circumstances it may not be practicable to pursue a more extensive investigation.

[26]        While the obvious purpose of the bylaw is to, theoretically, eliminate such troublesome conduct at night, the City concedes that it is inevitable that unlawful activity will still occur at night in parks.  (After all, parks in urban areas have been notorious for the clandestine activity that occurs in such places – both legal and illegal.)  The bylaw merely gives the City a chance to minimize the harm caused by such activity.  It is unrealistic to expect the City of Surrey or the police to assign relatively large numbers of employees to monitor activity in parks at night.

[27]        There was no evidence about the numbers of people in Surrey who use the parks in a peaceful and legal way at night.  It seems unlikely that there are very many people who do.  After all, most parks are intended to be enjoyed during the day, where visitors to the park may stroll; may hang around just looking at others; may sit in the shade of a tree and read a book; may sit on benches and talk to their friends, and so on.

[28]        Mr. Lewis challenged the City’s witnesses on their contention that it would be dangerous to allow persons to use a park at night.  He suggested that they could put up warning signs.  That I think is a naïve suggestion.  As the City witness said, the City is required to provide some protection to people using a park by, for example, keeping trails clear and ensuring that there are no obvious dangers to people using it.  Without setting up artificial lighting and making sure that there are no obvious hazards to users who might not see such hazards at night, the City would be a “sitting duck” in lawsuits for any injuries which resulted to persons using the park at night.

[29]        Mr. Lewis also suggested that a person who walks in a park at night is not going to be involved in any accidents with motor vehicles.  A person walking at night on a sidewalk, he suggested, is in some danger of being hit by a car.  However, he presented no reliable evidence which would suggest that walking on sidewalks at night is particularly dangerous to pedestrians.  

[30]        It is important to emphasize that a court is not permitted to “second-guess” a legislative body in its choice of remedies to address a particular problem.  Cities have the power to regulate the lands under their control.  In Shantz, supra, at paragraph 197, Chief Justice Hinkson stated:

[31]        Mr. Lewis’ main objection to this law is that it turns law-abiding citizens who are peacefully using a public space into law breakers.  He believes that those who enforce the law should concentrate on people who are actually committing illegal acts.  Does that make the bylaw “overbroad?”

[32]        In Shantz, supra, Chief Justice Hinkson described the concept of overbreadth as follows:

[33]        The Surrey bylaw’s object is to allow those enforcing the law to deal effectively and efficiently with a pressing problem of illegal activities within parks at night.  It also aims at trying to prevent everyone from going to a park at night so that the parks will remain in a peaceful state.  It does not differentiate between those who are committing unlawful acts and those who are not.

[34]        The bylaw is concerned with what happens in parks during a time when most people do not expect to use them because the uses for which parks are designed are mostly best done during the day.  It is not unreasonable for the City to assume that most people will use parks during the day and there is not a large demand for use during the night.  It is unrealistic to expect the City of Surrey to spend relatively large sums of money to provide resources to monitor in detail what goes on at parks at night.

[35]        In addition, the City of Surrey has merely passed a bylaw to regulate property that it holds in trust for the citizens of Surrey.  The bylaw has no effect at all on persons who use the park during the day, as most people do.  Thus, I conclude that the bylaw is not overbroad.  It is a reasonable law enacted in accordance with the City of Surrey’s jurisdiction and with its power to regulate lands under its control.

[36]        There is no viable argument that the bylaw is vague or arbitrary.

[37]        I find therefore that if the prohibition against persons going to parks after dusk is an interference with Mr. Lewis’ liberty interest under section 7 of the Charter, that prohibition occurs in accordance with the principles of fundamental justice.  It is not necessary therefore, to me to consider what is often called the “Oakes test” to determine whether the City has justified its bylaw under section 1 of the Charter.

[38]        Mr. Lewis’ application to dismiss the charge on the basis of the unconstitutionality of section 9 of the Surrey Parks and Recreation bylaw is dismissed.