Form 10 (Rules 22(1) (a) and 36 (4) )

 

Court of Appeal File No. CA38760

 

COURT OF APPEAL

 

ON APPEAL FROM BC SUPREME COURT JUSTICE BRAKEN’S REASONS FOR JUDGEMENT GIVEN NOVEMBER 30TH, 2010

 

 

BETWEEN: DAVID ARTHUR JOHNSTON

 

Appellant

 

 

 

AND: THE CITY OF VICTORIA

Respondent

 

 

 

APPELLANT’S FACTUM

 

DAVID ARTHUR JOHNSTON

 

THE CITY OF VICTORIA

 

 

Robert Peterson

 

Of no fixed address

c/o 5090 West Saanich Rd. Victoria, BC V9E2E7

Email Hatrackman@Gmail.com

 

STAPLES MCDONNOLD STEWART

2ND Floor, 837 Burdett Avenue, Victoria, BC

V8W1B3

Ph# 250-380-7744                          Email ksukstorf@sms.ba.ca

 

 


INDEX

 

Page#

 

CHRONOLOGY OF THE RELEVANT DATES IN THE LITIGATION

 

OPENING STATEMENT

 

PART 1          STATEMENT OF FACTS…………………………………………….1

 

History of the Litigation…………………………………....………….1

 

PART 2          ERRORS IN JUDGMENT ……………………………………..…….3

 

                        Oakes Test………………………………….………………………….3

 

PART 3          ARGUMENT…………………………………………………….……..4

 

PART 4          NATURE OF ORDER SOUGHT……………………………………..5

 

                        Remedy……………………………………………………….…..……5

 

                        Cost……………………………………………………………………..5

 

LIST OF AUTHORITIES………………………………………………………………9
CHRONOLOGY OF THE RELEVANT DATES IN THE LITIGATION

 

February 5, 2009      Appellant Johnston and David Michael Shebib began a campaign to have the Corporation of the City of Victoria corrected in its interpretation and application of the recently found Adams ruling. The City, that day, officiated a Bylaw restricting the, newly Constitutionally-held, right for homeless people to erect temporary abodes, to only serve nighttime hours.

 

February 9, 2009      Johnston and Shebib are arrested for collecting multiple ‘no tents during the day’ Bylaw tickets. 1 per day for the previous 4 days.

 

February 12, 2009   Johnston and Shebib are convicted of the offence by Provincial Court Judge Blake.

 

March 5, 2009           Johnston and Shebib are sentenced.

 

March 24, 2009        Johnston and Shebib both apply to appeal. Shebib, by trial de novo and Appellant Johnston, conventionally.

 

May 27, 2009            A trial de novo is granted with assurance from the judge that Appellant Johnston’s ‘Contempt’ argument can still be presented.

 

October 14, 2009      At an adjournment hearing, the City’s lawyer admits the City does not contest the absence of emergency shelter beds during the day. Subsequently, on,

 

November 25, 2009   the appeal was re-designated as a conventional appeal with the added allowance of submitting any new evidence regarding daytime shelter. The City, again changing its position, brings affidavits suggesting the existence of emergency shelter beds during the day.

 

December 9, 2009   Appeal's Court of BC rules on the City's appeal of the Adams ruling, finding “no legal basis to overturn the original conclusion”, excepting the inclusion, at the City's and its interveners behest, that the ruling was only determined for nighttime erection of temporary abodes. Leaving the right to erect temporary abodes during daytime to be determined separately.

 

September 10, 2010  Appeal for ‘daytime anti-tent’ convictions in front of Supreme Court Justice Braken. He reserved his ruling.

 

November 30, 2010 Justice Braken releases his Reasons, finding the City’s section 1 argument reasonable.

 

January 19, 2011     Appellant Johnston submits Notice Of Application For Extension Of Time To Appeal and a hearing is set for February 14, 2011.

 

January 31, 2011     David Shebib submits Application To Extend The Time To Appeal being given Appeal’s Court File No. CA38771.

 

February 14, 2011   Appellant Johnston granted leave to file a Notice of Appeal by February 18, 2011.

 

February 17, 2011   Notice of Appeal filed and served on the Respondent. Respondent fails to respond within the 10 day limit given in the Appeals Rules making it so the Appellant has no obligation to serve any further documents related to the appeal on the Respondent until an Appeal’s Court Justice deems it otherwise.

 

March 22, 2011        Appellant Johnston submits Appeal Record to the Court without concern of service on the City as it did not respond within the 10 day limit given in the Appeals Rules.

 


OPENING STATEMENT

 

The rare and distressing circumstances of this case are inextricably linked to the issues of the Fundamental Justice of Canadian Law and of the fundamental of justice that dictates the sanity of all life. This Court is called upon to make Rule of highest importance, proving to the public whether or not confidence in the administration of justice and in the integrity of the Court is justified.

 

BC Supreme Court Justice Braken erred in ruling the City’s section 1 argument valid, as there was no demonstration that the City considered any non-Charter Right-depriving alternatives to deal with the phenomenon of sleeping in public during the day. 

 

The only objective in Oakes that the City passed was the simple recognizing of homelessness as a ‘pressing concern’. They did not meet the ‘Proportionality’ condition, as they had not considered the reasonable equity of providing space for public tenting elsewhere within a Municipality’s public access spaces during the day.

 

Err needs only Justice Braken’s Reasons for Judgment to be made evident, as it would not be what is in the transcripts that will further this case, but what is not in the transcripts. In that they prove only that the suggestion of public tenting zones was put forth in verbal argument as well as written. A suggestion which was ignored without mention at all in his Reasons. A suggestion that is reasonable given every person’s right to be ‘presumed innocent of’.

 

In the least, the onus is on the City to demonstrate Constitutionally compliant public tenting zones as an unreasonable consideration before being granted the section 1 allowance to suspend section 7 rights. An onus which is made impossible to provide until genuine attempt is made to determine if the public could be trusted to lawfully tent in public without the imposition of being arbitrarily required to expect obstruction from sleeping between the hours of 6:30 in the morning and 8 or 10 o’clock at night.

 

Appellant success, in this case, has grand consequence. The City of Victoria, seemingly overnight, becoming the most progressive city in the world. This issue, having intense public interest, will be gifted with a wide range of external Constitutional scrutiny which, subsequently, will make any further naïve indiscretions in the depriving of fundamental rights by the City, more difficult. Invariably, Victoria will become a ‘hotbed’ of political contention, gaining a place of nobility with the ‘green’ movement and a place of contemptuousness with those who’ve accepted a compromised ‘order’ as being more important than justice.