What Counts As A Right When There’s Nowhere To Sleep

So this is a petition brought challenging some changes made to the City of Victoria bylaw that deals with camping and parks and when that is and isn't permitted.

And all of this, as listeners will recall, in terms of the legal challenges, comes out of a case from back and eventually decided by the Court of Appeal in 2009.

And that was a case that was a chartered challenger.

And the charter challenge in that case was to challenge then a prohibition on setting up tents and camping in parks.

And ultimately, the Court of Appeal concluded in that case from back in 2009 that a blanket prohibition on putting up a tent in any park was in violation of Section 7 of the charter, which is the section dealing with right not to be deprived of life, liberty, or the security of the person.

And the theory of the decision was that if you had not an adequate number of shelter spaces, that's an important caveat, and so people were forced to be sleeping outside the end of a house, then you could not have a constitutionally valid absolute prohibition on putting up a tent.

And so that was the start of it, but since then, There have been of course tent cities, there have been issues in particular tents and camping in particular parks around the city of Victoria and elsewhere.

And so municipalities including Victoria have restricted where that activity can take place.

And this particular decision, which just came out, was a petition by way of a judicial review challenging some additions made to the City of Victoria bylaw that would prohibit camping in particular parks.

And the parks in issue here were Irving Park and VicWest Park.

And those were, I think, the reasons for an issue, apparently a popular place for people to be camping.

um is that uh they are two of five parts apparently at least at the time 2025 uh which had 24-hour washrooms available uh and it was common uh they were in agreement that the reason there was an issue there is that those were the two parts which had 24-hour washrooms available, which were closest to the intersection of Quadra and Pandora, which the party, the city, and the petitioners agreed was represented sort of downtown Victoria.

And so the city of Victoria added those two parks to a list of parks where camping was prohibited.

And the petitioners in this case were challenging whether that was permissible.

Now, there were a few things about it that are interesting in the decision.

First of all, the petition was brought on behalf of three different people, sort of an interested person who wasn't homeless and two other people that were homeless and, I guess, camping.

One of the challenges is that since that started, sadly, one of those two people died and the other person who was homeless happily now has a home, leaving only the person who was just sort of public interest, generally interested in the issue.

But nonetheless, the case proceeded.

It was an agreement that it could proceed at least to the extent of making this decision.

And the claims being brought by the petitioners, eventually petitioner, included a claim that there was no authority for the city to eliminate these parks.

And they were arguing that The that section seven argument would prevent the city from saying, well, you can't use these two parts because they're, you know, from the perspective of people in the camp in them convenient because they are near downtown that intersection downtown and they have bathrooms available all night now.

The first point the court made is that when you're deciding whether there's authority to make that kind of a decision, the first thing that has to be decided is, is this a legislative decision, like a law, or is it a policy change? And the reason that matters is that if you have a policy change, that could be judicially reviewed on a standard of reasonableness.

Whereas if you have a legislative change, you change a law, Then really the only question to be asked in terms of authority to do it would be whether there is that authority to do it.

So you would look at, in the case of a bylaw, you would look at a community charter which delegates authority from the province to the municipality and you would say, do the provisions of this allow the municipality to do that? And the court pointed out that when you're making that decision with respect to a law, and they found this indeed was a piece of legislation, not just a policy change.

um then you don't blend together sort of general charter values like the life liberty and security of the person with that issue of whether something varies or ultra varies allowed to do it or not allowed to do it and so because the court started with the conclusion that look this isn't a policy change it's a bylaw that's treated like a piece of legislation you then move on to are you allowed to do it not whether this is a good idea or not and it's not a blended inquiry about values or eternal values is do you have the legal authority to do it like the same thing would occur if you were determining whether the province or federal government had constitutional authority to pass a law right you start with do you have authority to do it and so the court in this case found that this is legislation not a policy so it's not assessed on the basis of reasonableness the inquiry is are you allowed to do it does the authority exist to pass this law and the conclusion on that basis was yes it does so you look at the community charter you look at the language there this is permitted now the second argument or one of the other arguments made by the petitioners was to allege that These restrictions on camping in those two parts violated a treaty, an international treaty.