Judge must decide if constitutional challenge to city bylaw will proceed
Jeff Bell, Times Colonist
Published: Tuesday, March 04, 2008
Can a group of homeless activists argue they have a constitutional right to sleep on the streets? That was the question facing a B.C. Supreme Court judge as a legal challenge to the City of Victoria’s anti-camping bylaw finally made it to court yesterday.
It’s been more than two years since the challenge was launched after a number of people were arrested in October 2005 for erecting tents in Cridge Park, at the corner of Blanshard and Belleville streets.
Last September, the case briefly made it to court when the city lost its bid to dismiss the challenge, but it won an adjournment to allow the Ministry of Attorney General to join the case.
Yesterday, Justice Victoria Gray heard arguments from the city, the province and the homeless as part of a two-day hearing on the ministry’s application to deny the constitutional challenge.
Ministry lawyer Veronica Jackson argued that the case doesn’t have a reasonable chance of success on constitutional grounds, pointing out that the bylaw is meant to ensure that parks and other areas “are available for all members of the public to enjoy.”
“The bylaw has general applications that apply to everybody,” she said.
She added that the case would ultimately focus on what society should do in terms of funding and programs for the homeless, instead of just the content of the bylaw.
Lawyer Guy McDannold, acting for the city, also argued that people aren’t banned from sleeping outdoors.
He said an amendment to the bylaw in August — to omit the word “loitering” — effectively removes the provision against sleeping in public places.
But there are rules against “temporary abodes” such as tents, large tarpaulins, boxes and other items, as well as the blocking of sidewalks or streets, McDannold said.
Catherine Boies Parker, one of two lawyers representing the homeless in the case, countered that the bylaw “has a disproportionate impact on the homeless and demeans their dignity.”
Her case claims that the bylaw — even with the amendment from August — interferes with homeless people’s security of person, a right guaranteed under the Charter of Rights and Freedoms.
“Our argument is that if you have no place to go, you have a right to sleep in a public space … with some shelter from the elements.”
She said constitutional arguments are key to the case she is putting together with colleague Irene Faulkner.
Arguments in the case continue today in court. At issue for the judge is whether the homeless activists’ case has merit as a constitutional challenge — she will not cast judgment on the bylaw, only on whether the challenge can proceed.
Yesterday’s proceedings attracted a handful of homeless people, including David Johnston.
A baker by trade but homeless by conviction, Johnston has been arrested repeatedly, and even jailed, for his refusal to stop camping on public parkland, particularly the grounds of St. Ann’s Academy.
His actions were the impetus for the group that camped at Cridge Park.
Filed under: Anti-poverty, tent city
