Kitsilano Coalition for Children & Family Safety Society v. BC: The Basic Facts

The Kitsilano Coalition for Children & Family Safety Society challenged the validity of a provincial statute (MEVA 5) that retroactively approved a City of Vancouver rezoning decision. In particular, the Kitsilano Coalition is concerned with the safety of their children and families that B.C. Housing would be providing “supervised injection services” to tenants at the new development.

The Kitsilano Coalition argues that the provincial legislature is interfering with the court’s jurisdiction to hear a case regarding the rezoning.  The core of the Kitsilano Coalition’s argument is that the provincial legislature is trying to indirectly dismiss an action before the courts by retroactively changing the law upon which the action is based.

In the recent decision released on December 23, 2024, in Kitsilano Coalition for Children & Family Safety Society v. British Columbia (Attorney General), the Court of Appeal for British Columbia addressed this critical issue concerning the government’s authority in rezoning decisions and its implications on local community members’ rights.

This case highlights the delicate balance between the government’s power to enact legislation and the judiciary’s role in upholding the rule of law.

The Division of Powers and Legislative Supremacy in Canada

Canada’s constitution is built upon the principle of the division of powers, where legislative authority is distributed between the federal and provincial governments. This division ensures that neither level of government can overstep its bounds, safeguarding the autonomy of each region. The federal government holds jurisdiction over matters of national importance, while the provinces retain control over local concerns such as property and civil rights within their boundaries.

An unwritten principle is that a third level of government, at the municipal level, is best suited to address even more localized concerns of residents, such as zoning and re-zoning, that relates closely to the local communities and to municipal services.

Legislative supremacy, or parliamentary sovereignty, is another cornerstone of the Canadian democratic system. This principle grants the legislature the power to enact laws as it deems fit, within the limits and subject only to those limits as set by the Constitution.

This power, however, is not absolute. The judiciary, as the branch interpreting and enforcing the law, plays a crucial role in ensuring that any legislation passed does not violate the Constitution, including the principle of the division of powers.

Constitutional Constraints on the Legislative and Judicial Branches

The Constitution Act, 1867, and The Canadian Charter of Rights and Freedoms serve as the primary safeguards against any abuse of legislative power. The Constitution enshrines the fundamental rights and freedoms of Canadians, placing clear limitations on the government’s ability to infringe upon these rights.

Section 96 of The Constitution Act, 1867 is particularly relevant in this context. While it outlines the process for appointing judges to superior courts (thus safeguarding judicial independence and the rule of law), it has also been interpreted as protecting the core jurisdiction of these courts. This includes the power to review the legality of administrative decisions, ensuring that they do not exceed the bounds of their delegated authority.

In the British parliamentary system of government in Canada, the legislative and executive branches can and are often controlled by the same political party, as in the case in BC. This is manifest in the Coalition’s case. The key question is, when there a law is passed to ensure rezoning is done so that the housing development can proceed, as in this case, whether the courts have the powers to review that law.

The Rezoning Case: A Clash of Powers

The rezoning case brought to light the tension between the government’s desire to address pressing social issues, such as the housing crisis, and the need to respect the rights of individual members of the communities, such as the Kitsilano Coalition. The Province, in an attempt to expedite the development of affordable housing, passed legislation that effectively overruled the City of Vancouver’s zoning bylaw and any potential court decisions against it.

This action was challenged by the Kitsilano Coalition, which argued that the province had overstepped its authority by dictating the outcome of a specific court proceeding. They contended that this interference with the judiciary’s role violated the principle of judicial independence and the division of powers.

The Court’s Decision and Its Implications

The Court of Appeal for British Columbia declared the provincial legislation unconstitutional and thus invalid. The Court emphasized that while the legislature has the power to enact laws, it cannot interfere with the judiciary’s role in interpreting and applying those laws; in particular, the two other branches cannot retroactively dictate the outcome of a court proceeding because doing so would render the division of powers a fiction.

This decision has significant implications for the Vancouver communities, and in BC and developers alike. It underscores the importance of respecting the rule of law and the rights of individuals in any development projects.

It also serves as a reminder that the government’s authority is not absolute and that the courts play a vital role in ensuring that any exercise of power remains within constitutional bounds.

Social Policies & the Rule of Law

The rezoning case is an example of the complexities involved in balancing the government’s mandate, from the electorate, to address social issues with the need to protect individual rights. It highlights the importance of transparency and adherence to due process in any government action that may affect the rights of citizens.

This case also serves as a powerful reminder of the crucial role played by the judiciary in upholding the rule of law and ensuring that the government remains accountable under the Constitution. In an era where government overreach is a growing concern, the judiciary’s vigilance in safeguarding individual rights and the division of powers is more critical than ever.

The motto engraved onto the buildings of the New York State Court of Appeals and the Supreme Court of the State of New York that “the true administration of justice is the firmest pillar of good government” held true in this BC Court of Appeal decision.

Roland Luo: Providing Exceptional Commercial Litigation Services in Vancouver

For the past two decades, we dealt with land disputes including rezoning issues using injunctions and constitutional challenges against administrative actions. Should you encounter such a dispute, contact Roland Luo.

Located in downtown Vancouver, Roland Luo proudly represents clients throughout British Columbia, as well as clients across Canada and the United States. To schedule a confidential discussion, contact us online or by phone at 604-800-4628.