Where the lie becomes the truth and then a lie again 

The BC Supreme Court of Appeal has upheld a ruling protecting the rights of homeless to sleep in parks.

Tavis Dodds arrested for erecting shelter

Charter Champion Irene Faulkner is quoted in the Vancouver Sun as saying that those who were arrested are happy with the ruling. I was arrested about a dozen times in connection with this, but I still have no convictions or record, and I am not happy with the ruling. The wording has been changed to read that we have only the right to “overnight” camping and only if the city has no shelter space to offer. At the same time that the ruling came down on December 9th, BC’s law enforcement began enforcing the Assistance to Shelter Act that allows police to force homeless into shelters, an act in total compliance with Faulkner’s case in Victoria vs Adams. David Johnston, one of the original applicants in this case, has been fasting in jail since Nov24th when he was sentenced to 45 days for continuing to put up tents. 

Sitting through a hearing in the case of the so-called “right to sleep” trial is not unlike having accidentally ingested a powerful hallucinogenic drug. There are strange things done in the BC Supreme Court, and the two day appeal hearing on Mme Justice Carol Ross’ decision to allow homeless people to camp is no exception.  Fourteen lawyers appeared before three judges.  Two for the City and two for the campers, two for the province intervening for the City who were joined by one from the Union of BC Municipalities, and then two from the BC Civil Liberties Association, who are joined by three from Pivot Legal and three from the Poverty and Human Rights Centre intervening on behalf of the campers. Those are the people that were there in black robes, that much is for sure, but from that point on down the rabbit hole there’s nothing much one can be sure of in this case.

To start with, the City didn’t really point to any specific error in Ross’ judgement, as is usually the case in an appeal, and the effect was that the original evidence from the five day trial was just presented again over two days with the hopes that the judges would see it from the City’s point of view this time. There was the same fear-mongering and needle scares, with the City interpreting the ruling to mean that people will be planting potatoes in Beacon Hill Park. (gasp!)  The old man from the Union of Municipalities made the case that homeless people can’t have rights like other groups because homeless are constantly changing and finding housing, unlike women or ethnic minorities that are permanent members of their group.  He claimed that several of the campers in question weren’t really homeless, to which Justice Kathryn Neilson asked if that mattered if, say, four of them were homeless, and Justice Katherine Neilson added “or even one.”

The next day was Catherine Boies-Parker’s turn to speak for Ross’ ruling.  To start the day the judge mentioned that she had been listening to the radio (Lisa Cardasco on CBC) and heard that the City had attempted a remedy and had arrested several people for camping since the ruling.  Neither side had mentioned this. The City’s first attempt at remedy had been to ignore the ruling and arrest campers and confiscate their belongings without providing any alternative locations for them to sleep. They arrested these campers under the bylaw that was struck down by Ross, later to be told by Justice Mackenzie that they had to make a new bylaw if they wanted to arrest people.  In the rare instances that this was mentioned in the media it was considered a loop hole, or as the Times Colonist’s Bill Cleverly called it, “a legal technicality.”  Lisa Cardasco was there in the court room and has been following the case since before the Charter Challenge had begun, at times being the only person there when campers were released from prison.  The Tyee’s Andrew MacLeod was there, having followed this story for Monday Magazine back when there was a media blackout over the whole issue.  The City handed up two copies of the Enforcement Policy that limited constitutional camping from between seven and seven and the judges didn’t press the matter.

Boies-Parker has long been trying to ease fears that this ruling means anarchy.  She argued that the city has the power to determine when and where shelters are set up, an argument that prompted a Times Colonist story under the headline “Fears about homeless people camping in parks are groundless.”  She told the court that she thinks the city’s policy of allowing camping only between seven and seven is fine, or, more accurately, that it is a matter for another court to decide. At one point one judge asked her if a person with a home in Newfoundland is homeless in Victoria and Boies-Parker said No, that person is not homeless. 

She read some affidavits from the original trial, including that of Natalie “Karma” Adams, for whom the case has been named.  Adams describes her life of jumping from living with one family member to another, receiving a brain injury, being raped in shelters or while she was sleeping alone outside.  She describes smoking meth-amphetamines to stay awake so as to protect her belongings and to keep from getting raped.  At least one of the members of the audience had to leave the court room in tears.  After it was done, the UBCM lawyer could be overheard saying that she (Boies-Parker) was trying to soften them up. Veronica Jackson, lawyer for the Attorney General, made the point that these affidavits were not saying that a tent protecting them from the elements was what protected their security of the person, it was the people and the community of the tent city that provided the security.  But this case has never spoken to that directly, only to the risk to the security of the person threatened by the elements or the weather. It might be noted that Adams has appeared at several of the hearings and that she is hardly recognizable as the woman in “Love and Fearlessness”, the documentary film on this case.  With the help of Boies-Parker and Faulkner she now has her son back, has a home, and is recovering from substance abuse.

One affidavit from Reverend Al, who runs the Our Place drop-in for poor and homeless people, was referred to again and again.  He states the obvious information about the disastrous consequences of a rising homeless population.  His statements are strange for a number of reasons.  For one thing, he didn’t attend the tent city in question, and for another, his testimony has been used against the homeless people in question by the Provincial Capital Commission and other organizations that have fought so hard to silence the movement that brought us this far.  A better priest to have spoken to may have been Father Antonio Osario.

Father Antonio did attend the tent city.  He became so outraged at the actions of the Crown that he actually took down a picture of the queen from his Anglican Church in Esquimalt.  Victoria police came in uniform to his door to ask him not to support the campers.  He lost members of his congregation.  He set up a shelter that utilized volunteers and operated at a fraction of the cost of the shelter at St John the Divine that had been set up in response to this court case, or, as Sgt Decker said at the time “They (Boies-Parker) say there is nowhere else for them to go.  Now there is a place for them to go.”

Reverend Al, and much of Victoria’s poverty industry, owes a lot to this case.  Much of the funding for the Our Place facility was freed up in response to this case.  Very little of it came from the city.  The Mayor's Task Force on Breaking the Cycle of Mental Illness, Addictions and Homelessness was created at the outset to report on the situation of the homeless, and the Task Force was renamed The Coalition to End Homelessness in 2008.  Many expensive studies and reports came from the Coalition, with lunches being served at countless meetings and symbolic positions created for poor people on the “Experiential Committee”.  Findings from the Task Force were used by Boies-Parker to show that there were far more homeless than shelter beds, and, she added, “Not all of the underestimates of homeless numbers were by accident.”  In a June article in the Times Colonist it was claimed that the accomplishments of the Committee were achieved since the name change.  Ted Hughes, a former judge that co-chaired the organization had resigned to be replaced by a member of the Real Estate Board that has fought against the initiative of the campers for years.  Hughes had been an outspoken critic of the organization he chaired and described leaving the organization as something like getting off a merry-go-round.  Other municipalities, such as Vancouver, have created their own task forces.

The city has tried no end of arguments, but none of them are realistic.  It has been claimed that campers threaten endangered species of plants.  $1.43 million dollars has been spent to combat beach fires, although one very expensive fire that was not associated to homeless people created the bulk of this cost.  The damage to turf is raised again and again.  The merits of parks themselves has been argued again and again, the reasoning being that if homeless people are in the parks then others are not able to access them. The city also claimed during the appeal hearing to be extremely progressive, being the only municipality that allows sleeping in parks so long as no shelter is put up, but this too is misleading. Prior to this case being raised homeless people were regularly displaced, harassed and even beaten for having slept in parks without sheltering themselves, but the stance of the city was softened when the case was raised.

The lawyer for the BC Civil Liberties Association claimed that the interpretations of what this ruling meant was “hysteria”, saying that claims that this would lead to campers on the legislature lawn was unfounded.  Justice Harvey Groverman mentioned that it seemed that he was making arguments for the other side.  Again and again it was mentioned by all sides that this is not a matter for the courts to determine, but was the responsibility of Mayor and Council.

The ruling came down three years to the day since the file was made, five years after the Cridge Park Tent City was torn down.  Weeks after the ruling, the city headed into an election.  All discussion on the ruling was done behind closed doors as the matter was before the courts because it was being appealed.  It was learned that council had voted unanimously to arrest campers under the bylaw that had been struck down with the help of the guise of an enforcement policy that was later found to be insufficient without the creation of a new bylaw.  Over a dozen people ran against the incumbents as a direct response to Council’s inaction.  One mayoral candidate, Kristen Woodruff, was photographed doing handstands while police arrested campers.  Two of the first orders of business of the new administration had been to create a rushed new bylaw and to make it harder for people to run for council.  Incumbent Sonya Chandler had second thoughts about her stance against the campers and made it known during a brief out-of-camera discussion that the city was not telling her about the enforcement actions that had been carried out.  Councillor Charlayne Thorton-Joe dramatically left an all-candidates forum on poverty in tears. Lynn Hunter, a former MP running for council, wrote a letter to Ottawa chastising them for not intervening in the case.  Steve Filipovic finished third in the mayoral race after the first two came out against the campers.  Filipovic was present in the courtroom for the duration of the appeal hearing.  Dean Fortin, who became mayor, is on record as saying that if a tent city was set up on the legislature lawn he would buy them a porta-pottie.  It could certainly be argued that Ross’ ruling became the most important issue of the election.

The appeal case dove into a tangle of precedents.  The case of Morgenthaller was brought up repeatedly, where section seven was used to protect the security of the person of people refused abortions.  Rodrigues was brought up in its case of section seven rights not being violated in the case of refusing an assisted suicide because the results would be the same whether or not the state intervened.  Even the MaloLevine case of a section seven violation of a glaucoma patient refused marijuana was raised repeatedly.  But there is a case that was not brought up that does help understand these bizarre entanglements; another ruling of Carol Ross.

In June 2007 Ross ruled in favour of Sharon McIvor, striking down sections of the Indian Act as sexually discriminating when status as a first nations person could be passed on to grandchildren from a grandfather but not a grandmother.  It took twenty one years for the case to reach a ruling, and the province is appealing the decision.  It is expected to be resolved at the supreme court of Canada at a minimum cost of $250 000.  Harper’s federal government has cut funding to the Court Challenges Program saying his government does “not intend to pay Liberal lawyers to challenge unconstitutional laws.”  Days after the ruling in the McIvor case came down, a letter was unearthed by the NDP which showed that the province had never had any intention of winning the case, but had pursued it because it would create chaos, and nobody would know who was or wasn’t a status first nations.

Here we finally get a little closer to the truth.  Nobody knows what this ruling on homeless rights really means.  Who is homeless, exactly?  If this protects the rights of homeless in Victoria, what about the rest of the homeless in this country?  If the city provides shelter beds of an insufficient quality, does that mean homeless have no rights to camp? It was suggested during the appeal that a homeless person might have to make individual applications to the city before exercising their rights to camp.  At the very least, so long as this matter is before the courts the Mayor and council, is effectively bound and gagged not to discuss the issue while it is before the courts.  It is expected that when the ruling of the appeal is brought down (it is presently reserved) the matter will be appealed to the Supreme Court of Canada.  Lawyers for the Attorney General hinted at this inevitability when she said that the Supreme Court likes these things to proceed incrementally. 

Although there is some jubilation from some at the thought of the homeless marching on Ottawa, there is the question of how Boies-Parker and Faulkner will pay for such an appeal.  The court has ruled that they can seek costs from the state, but they have so far paid for their expenses from their own pockets.  The City has sat on the order for many months and recently released it, allowing the charter champions to speak to costs.  At a hearing to that effect they cited the cost of the city’s case already passing $250,000, to which they were told that a more reasonable price would be $40,000.  Faulkner took out her calculator in court and determined that sum would amount to $19/hr before expenses, and what kind of a lawyer is going to pursue these sorts of cases for that sort of arrangement?  To date, Boies-Parker and Faulkner have yet to receive any money, which might explain their insistence that the ruling does not lead to tent cities.

Whatever happens, everything in this case is as confused as a mad hatter’s tea party.  These three judges have the ability to decide whether or not we should continue executing countless numbers of Canadians for being found guilty of the crime of no fixed address, and all responsibility is placed on elected officials that have only faded connections to reality at best.  At points in this trial the homeless, as a group we all might find ourselves in, became so big it couldn’t be contained by the housing industry crashing all around us.  Water pours down on the homeless of the Pacific Northwest homeless, and the police and state would prefer threats to the lives of the citizens before they would accept a threat to their conception of order.  It’s like waking up to find that the Charter of Rights was a fairy tale, democracy was only a dream, and justice for all has always been make believe.