2008 BCSC 1209 Victoria (City) v. Adams

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*Victoria (City) v. Adams,*
	2008 BCSC 1209

Date: 20080908

Docket: 05 4999

Registry: Victoria

Between:

The Corporation of the City of Victoria

Plaintiff

And

Natalie Adams, Yann Chartier, Amber Overall,

Alymanda Wawai, Conrad Fletcher, Sebastien Matte,

Simon Ralph, Heather Turnquist and David Arthur Johnston

Defendants

And

The Attorney General of British Columbia

Intervener

And

British Columbia Civil Liberties Association

Intervener

Before: The Honourable Madam Justice Ross

Ruling

Counsel for the Plaintiff	Guy McDannold Bruce Jordan
Counsel for the Defendants	Irene C. Faulkner Catherine J. Boies Parker
Counsel for the Intervener The Attorney General of British Columbia	Jonathan Penner Veronica Jackson
Counsel for the Intervener British Columbia Civil Liberties Association	R.A. Skolrood E.L. Clark (A/S)
Date and Place of Trial/Hearing:	June 16-19, 2008
	Victoria, B.C.

[1] This is a ruling with respect to the admissibility of exhibits attached to the affidavit of Lyle Rumpel. The plaintiff, the City of Victoria (the “City”), seeks to tender those exhibits as legislative facts for the purpose of explaining the socio-economic context of the Parks Regulation Bylaw and the Streets and Traffic Bylaw (the “Bylaws”) at issue in this litigation. It is the City’s contention that the evidence forms part of the rationale of the City in enacting the Bylaws.

[2] Mr. Rumpel is a legal researcher who is employed by counsel for the City. He deposed in the body of his affidavit:

I have researched the issue of the benefits and purposes of public urban parks and green spaces. Attached as Exhibit “A” is my summary of the articles attached as Exhibits “B” to “FF”.

The main benefit of urban parks and green spaces as set out in the articles include:

· Environmental (e.g. cooling; reduce use of energy for cooling or heating purposes; reduce soil erosion; reduce air pollutants; protects wildlife; protects ecosystems and variety of)

· Recreational (support physical health and fitness)

· Social (e.g. support community socialization and stability; reduce demand for health care; decrease mental fatigue; reduce children’s attention deficit disorder; reduce noise; positive effect on well-being even though passive enjoyment of view of green space from distance)

· Economic (e.g. residential and commercial property values rise near parks, including low income areas; revitalizes area by attracting businesses and residents; increased tourism and job creation)

[3] At the outset of the hearing the City sought admission of all of the exhibits to the affidavit. At the close of submissions, counsel advised that the City only sought to rely upon Exhibit F:

Tüzin Bayean Levent & Peter Nijkamp, “Urban Green Space Policies: A Comparative Study on Performance and Success Conditions in European Cities” (44th European Congress of the European Regional Science Association: Regions and Fiscal Federalism, 25-29 August 2004, Porto, Portugal

And Exhibit T:

Paul M. Sherer, The Benefits of Parks: Why America Needs More City Parks and Open Space. San Francisco: Trust for Public Land, 2006) reprint of “Parks for People” white paper, published in 2003.

[4] The issue in the hearing is whether the Bylaws that prohibit homeless people from erecting temporary shelter on public property in the City violate their rights under s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, (U.K.), 1982, c. 11. The City submits that evidence concerning legislative facts is subject to less stringent admissibility requirements. The defendants take the position that the exhibits do not conform with even the less stringent requirements for evidence of legislative facts and submit that the evidence is not admissible.

[5] The term “legislative facts” was defined by Justice Sopinka in Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086 as follows at p. 1099:

Legislative facts are those that establish the purpose and background of legislation, including its social, economic and cultural context. Such facts are of a more general nature, and are subject to less stringent admissibility requirements: see e.g., Re Anti-Inflation Act, [1976] 2 S.C.R. 373, per Laskin C.J., at p. 391; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, per Dickson J. (as he then was), at p. 723; and Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297, per McIntyre J., at p. 318.

[6] The courts have considered a variety of extrinsic evidence in constitutional cases with respect to legislative facts. Such material has been received through an expanded form of judicial notice, through testimony or affidavit and finally by way of “Brandeis Brief”; see Canada Post Corp v. Smith (1994), 20 O.R. (3d) 173 at pp. 183-85, 118 D.L.R. (4th) 454 (Div. Ct.) [Smith cited to O.R.].

[7] The nature of this evidence poses certain challenges for the court. It is important that the court not make decisions about these important issues in a factual vacuum; see MacKay v. Manitoba, [1989] 2 S.C.R. 357. However, such evidence is not necessarily a good fit with the traditional process of fact finding in a trial. As noted in Smith at p. 186:

Trial-type procedures are best employed to resolve controversies involving disputes over adjudicative facts, facts pertaining to the parties. In contrast, such truth-seeking procedures are not usually required for the ascertainment of legislative facts. The exception is where specific or concrete legislative facts are critical to a judicial determination. Legislative facts relating more to policy than concrete fact are often not amenable to ascertainment by trial procedures. Cross-examining a social scientist on a particular theory is unlikely to produce a "truth" as understood in the context of adjudicative facts.

[8] It is important that control be exercised. As Justice Binnie noted in Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2, [2000] 1 S.C.R. 44 at para. 5:

The usual vehicle for reception of legislative fact is judicial notice, which requires that the "facts" be so notorious or uncontroversial that evidence of their existence is unnecessary. Legislative fact may also be adduced through witnesses. The concept of "legislative fact" does not, however, provide an excuse to put before the court controversial evidence to the prejudice of the opposing party without providing a proper opportunity for its truth to be tested.

[9] In Lax Kw’alaams Indian Band v. Canada (Attorney General), 2007 BCSC 858, Madam Justice Satanove summarized the principles to be applied by the court in the consideration of the admissibility of evidence with respect to legislative facts as follows at para. 2:

1. Legislative facts relate to the constitutionality of legislation or policy. They should not relate to the adjudication of the matters in issue ("adjudicative facts") but rather to the socio/economic framework within which that adjudication takes place.

2. Legislative facts establish the purpose and background of legislation, the social and economic conditions under which it is enacted, the mischief at which it is directed and the institutional framework in which it is to operate.

3. Examples of materials admitted under the legislative facts rule include reports of parliamentary committees, Law Reform Commission reports, white papers, green papers, Royal Commission reports, government reports and independently commissioned studies relied upon by government.

4. Legislative facts are an expanded form of judicial notice but they may not have the indisputable character traditionally required for judicial notice.

5. The permissible scope of judicial notice should vary according to the nature of the issue under consideration. The closer the legislative fact is to the subject of dispute, the more it should be notorious and accurate because it can become determinative. If the legislative fact simply forms part of the context in which the dispute is to be resolved, then its reliability, accuracy and notoriety is of less concern.

6. Where the legislative facts may be disputed, they should be proved by the opinion of expert witnesses in the relevant field of knowledge. The expert can be cross-examined or contradicted by another expert witness as to the value and weight to be given to certain reports. The result is some assurance of reliability for factual findings of controverted legislative facts.

7. Studies done after enactment of legislation can be legislative fact used to analyze the legislation.

[10] The materials tendered in Mr. Rumpel’s affidavit are not from local or even Canadian sources. There is nothing in the evidence that suggests that the City was aware of or relied upon any of these articles when enacting the Bylaws at issue. The Trust for Public Land appears to be an advocacy group. The articles do not appear to be reports of commissions, or studies by relatively independent, impartial bodies. On the other hand, the articles are submitted for a limited purpose; namely, to establish the importance of parks. That is not a matter of contention in these proceedings. The documents supplement a matter which it is conceded is an appropriate subject of judicial notice.

[11] Accordingly, because the material relates to a legislative fact that is not in dispute, I have concluded that the material is admissible for the limited purpose identified by the City.

“Ross J.”