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Tent Camping Homeless to Politicians: 'Face Facts!'

Court allowed temporary shelters in Victoria parks, but officials still fighting it.

By Andrew MacLeod 16 Jun 2009 | TheTyee.ca

Andrew MacLeod is The Tyee's Legislative Bureau Chief in Victoria. Reach him here.

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Shelters were full, the park wasn't.

That the city of Victoria and the British Columbia government are so determined to keep fighting to prevent homeless people from sheltering themselves speaks volumes, said Simon Ralph, who knows the pressure first hand.

"I think the city just doesn't want to face the facts. The city doesn't want to honour the law," said Ralph, one of a dozen or so people named as defendants in the landmark case that last year overturned Victoria's anti-camping bylaws.

The case stems from an October 2005 City of Victoria injunction against people who were camping in Cridge Park, a city-owned property a block away from the provincial legislature. Lawyers for the campers challenged the injunction, arguing people had no choice but to camp when there were only 170 shelter beds for a homeless population of 1,200 or more.

The city's appeal of that ruling was presented to three court of appeal justices in two days of hearings June 10 and 11. Since the ruling, erecting shelter in Victoria parks has been legal, though the city has moved to limit the hours and has arrested people for leaving their tents up during the day. The ruling was widely seen as setting a precedent for other cities in B.C. and Canada.

"I think they're saying business and property owners have more rights than people with no property," said Ralph. "It seems to me we should all have equal rights."

'We say that that is anarchy'

Ralph is now housed, but said being able to tent with others made a huge difference in his life. "It's a transition from being completely hopeless to having a place to live," he said.

Within a few months in 2005 he went from being around homeless shelters rife with drugs and alcohol, to living with others in a tent city, to kicking his addictions. He refound his spirituality, he said, got a job and found a place to live.

Through the short-lived tent city, he said, he returned to "being a productive member of society again."

That kind of transition will be less possible if the city wins its appeal. The provincial government and the Union of B.C. Municipalities both intervened in the appeal to support Victoria's position.

In his closing remarks, the lawyer for the city, Guy McDannold, said the court striking down the city's camping bylaws took away Victoria's ability to manage public property.

"The order amounts to an allocation, an opening up of land, park land and public land," he said. People would be able to stake a claim to whatever spot they wanted, he said. "We say that that is anarchy."

No definition of 'homeless'

Representing the province, lawyer Veronica Jackson said the ruling put the city in a strange place because it was asked to regulate an activity that had previously been prohibited. You can't regulate something unless you first allow it, she said.

There were also questions about whom Madam Justice Carol Ross' ruling affects, she said, as it is unclear who is counted as 'homeless'. "The error was in not having it defined before she incorporated it into an order," Jackson said.

The ruling referred to the fact that there are many more people homeless in Victoria than there are available shelter beds. It was unconstitutional, Ross found, to prevent people from erecting shelter when there was nowhere else for them to go.

Jackson questioned what happens on nights when there are available beds. She asked, would it be practical to have city workers check whether there's space in shelters before allowing a tent to stand? And what about people who shun shelters and choose to sleep outside?

'Certain amount of hysteria'

"We're not asking you to tell the city what to do," said Catherine Boies Parker, acting for the campers. The ruling requires nothing from the city other than that its workers allow homeless campers to shelter themselves, she said. "She's left them a very large range of discretion on what to do."

Concerns were raised about 'scary people' taking over the park and making the public feel unwelcome, she said. "Many people would find it less distrubing if someone's sleeping in a park to know they were properly sheltered."

Boies Parker went through the same arguments she made to win the original case last year.

Ron Skolrood intervened on behalf of the B.C. Civil Liberties Association, reiterating arguments he made in the original case as well. "At any given time in Victoria there are more homeless people than there are shelter beds," he said. "On any given night there are a significant number of people who have no option."

He noted that the city's response to the ruling appears more rooted in fear than any belief that Madam Justice Ross misinterpreted the law. "When this decision was released, there was a certain amount of hysteria from the politicians and the media," he said. "Some of this hysteria has crept into the submissions of the city."

The decision was fair and was rooted in the evidence, he said. "There's no need for this court to interfere with that."

Housing is a right: Brodsky

The Pivot Legal Society and the Poverty and Human Rights Centre also intervened in the appeal.

"The right to housing is such an important issue, a centrepiece to Canada's obligations under international human rights law," said Gwen Brodsky, one of the lawyers for the PHRC speaking outside the courthouse.

"Every resident of Canada has a right to adequate housing," she said. At the very least, government officials should not be preventing people from erecting shelter, she said. In the future, they may be forced to provide housing.

"We'd like governments to understand that their obligation should go much further," she said. "This case may not directly raise the question of the full extent of the government’s obligations, but they're there in the background."

Having heard the arguments, Madam Justice Risa Levine, Madam Justice Kathryn Neilson and Justice Harvey Groberman said they will release their decision at a later date.

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