PART 1 – STATEMENT OF FACTS
History of the litigation
 While this is an appeal stemming from convictions given to David Arthur Johnston and David Michael Shebib on February 12, 2009 in the Provincial Court of British Columbia the litigation originally arose in response to a campaign to determine the ‘right to sleep’ initiated by Appellant Johnston on January 16, 2004 which, in turn, was a response to his conscientious sleeping in the park being deterred by City policy.
 Through determined activism the campaign led to an
establishment of an illegal tent-city at
 On October 5, 2005 an injunction is served on the
 On October 19, 2005 with help from UVIC law
students a number of affidavits are collected from tent-city residents to help
defend against an injunction application by the City of
 On October 26, 2005 City applies for, and is
granted, an interim interlocutory order against the illegal tent-city in
 The City did not set the matter for trial. After consulting with the City’s lawyers, the Defendants set it to be heard on September 4, 2007.
 Through much positioning by both parties the
Charter Challenge to determine the right of homeless people to erect temporary
abodes happens June 16 to June 20, 2008. Supreme Court Justice Ross gives her
Reasons on October 14, 2008 declaring Bylaws to be (para. 239(b),
“of no force and effect insofar and only insofar as they apply to prevent homeless people from erecting temporary shelter.”
 City first introduces the notion of limiting the use of tents to night time only as a Bylaw policy on October 17, 2008.
 Technically invalid Bylaw policy is made into a Bylaw by Victoria City Council on February 5, 2009.
 On February 9, 2009 Johnston and Shebib are compelled to get arrested for collecting multiple ‘no tents during the day’ Bylaw tickets as a response to the Bylaw’s inception.
 On February 12, 2009 Johnston and Shebib are convicted of the offence.
 On March 24, 2009 Johnston and Shebib file Notice to Appeal.
 On December 9, 2009 the Appeal's Court of BC
rules on the City's appeal of the Adams ruling, finding (in the first half of para
“no legal basis to interfere with the trial judge’s conclusion, on the uncontradicted evidence before her, that the prohibition in the bylaws on the erection of temporary shelter violates the rights of homeless people to life, liberty and security of the person under s. 7, and the violation is not justified under s. 1 of the Charter. “,
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 shelters during daytime to be determined separately.
 The appeal of Provincial Court Judge Blake’s conviction of Johnston and Shebib was put before Supreme Court Justice Braken on September 10, 2010.
 Justice Braken releases his Reasons on November 30, 2010 siding with the City’s section 1 argument that the deprivation of life was a ‘reasonable limitation’.
PART 2 – ERROR IN JUDGMENT
 Justice Braken failed to see the necessary ‘reasonableness’ of first considering non-Charter violating alternatives before awarding the City section 1 allowance.
 Justice Braken’s decision fails to give adequate effect to the fact that the City conceded the section 7 violation, and thus the burden was entirely on the City to demonstrate, on the basis of proof, that the interference with life, liberty and security of the person was justified. The trial judge did not apply the test for assessing a section 1 justification under Oakes, which would have required the City to lead clear and convincing evidence to demonstrate that every step of that test was met - including that the bylaw was rationally connected to the objective, minimally impairing and proportional. This constitutes a fundamental error of law.
 There is total omission of mention of the non-Charter violating alternative of public tent zones in his Reasons, even though verbally and in writing he was presented with the consideration.
 To establish that an infringement of a Right or Freedom is justified under a piece of legislation, two main criteria must be met.
 Firstly, the objective of the limiting measure(s) must be “sufficiently important” and must relate to concerns that are “pressing and substantial”.
 This criteria was met, understanding the consequence of the phenomenon of a population of people sleeping in public within the municipality.
 The second criteria though, the ‘minimal impairment’ aspect, is not met by the City as it fails to demonstrate a reasonable attempt to deal with the matter without resorting to Charter infringement.
 The City’s sentiment towards public tenting zones, as a frivolous impossibility, is without merit as it has never seen a sanctioned public tenting zone at work.
PART 3 – ARGUMENT
 The City of
 It is easy to empathize with the issues of this case. For longer than anyone has been alive today there has always been a monopoly on sleep. As a society we’ve developed a twisted acceptance of this deprivation that, effectively, forces everyone to, eventually, have to pay to dream lawfully.
 To this day, even. The total restriction of people’s right to, conscientiously, provide for themselves shelter enough to sleep without concern for undue obstruction, during the day, speaks of a grand and unlawful fear that is not worthy of an enlightened nation; speaks of the fear carried by those who’ve grown dependent on ignorance.
 Justice Braken over-stepped his bounds in ruling the City’s section 1 argument as valid. Reasoning why leads to much conjecture. ‘Why?’ might be a question for a later court as it speaks of a dire lack of mindfulness that is unworthy of those who’d worship justice so much that they would take the word as a title.
 In this case, the Appeals Court is being asked to rule on whether or not Justice Braken erred, not why.
 Simply put, the City is not worthy of being granted section 1 allowance as it has not attempted public tenting zones, which is a reasonable consideration given every citizen’s right to be presumed innocent of.
PART 4 – NATURE OF ORDER SOUGHT
 Justice dictates accountability. Not only must
the City’s Bylaw be instantly made of no force or effect, the
 If the Court is not satisfied with the City’s understanding of what a Constitutionally compliant Bylaw looks like, in the matter of policy regarding sleeping in public, then the Court would be required to order the City to submit any new Bylaw or Bylaw amendment, dealing with this matter, first, to a Supreme Court Master to scrutinize before it is officiated into legislation.
 There is no positive obligation on the City to provide land for a public tent zone, just as there is no positive obligation to conceive public tent zones at all. The only reasoning to do so being to alleviate the number of people tenting in the parks. Effectively allowing for the restriction of tents, wholly, from some parks because there is reasonable land enough that allows for the right to be asserted elsewhere within the municipality. ‘Reasonable’ in this case including the conditions of the area being within walking distance to the downtown core and not breaching capacity at any given site.
 As per the effort to attain this Appeal’s Court affirmation, and as per my Charter protected right to not use money, reciprocity would have it that the City provide me with non-refundable Gift Cards, Gift Certificates, or if possible otherwise, non- refundable lines of credit (with offers of up to 25% extra to secure the ability, which, if its not secured, then to pass the equivalent worth to the next item in line) in the form of:
The equivalent of one hundred thousand dollars from each of these establishments:
Save on Foods
Real Canadian Superstore
The equivalent of fifty thousand dollars from each of these establishments:
Red Barn Market
The Office Depot
Shoppers Drug Mart
Market on Yates
Mountain Equipment Co-op
The equivalent of twenty thousand dollars from each of these establishments:
Jeune Bros Tent and Awning
The equivalent of fifteen thousand dollars from each of these establishments:
Robinson’s Outdoor Store
The equivalent of ten thousand dollars from each of these establishments:
Mark’s Work warehouse
Firestone Tire & Automotive Services
The equivalent of seventy five hundred dollars from each of these establishments:
The equivalent of five thousand dollars from each of these establishments:
the Beehive Wool Shop
Reckless Bike Stores
KATA Martial Arts Supplies
Seed of Life
Old Morris Tobacconists
The equivalent of twenty five hundred dollars from each of these establishments:
Hemp & Co
QV’s cafe bakery
OPUS Framing & Art Supplies
Earth & Fire Pottery Studio
The Mac Pros
Paul’s Motor Inn
Ocean Island Inn
The Original Christmas Store
Bean Around the World
BC Ferries Experience Cards
The equivalent of fifteen hundred dollars from each of these establishments:
Lotus Pond (on Johnson)
Games Workshop (on Johnson)
Curious Comics (Johnson)
E & N Rail
Pacific Coach Lines
The Running Room
Seven Valley Fine Food & Deli
Self- Heal Herbal Centre
The equivalent of one thousand dollars from each of these establishments:
Rocky Mountain Chocolate Factory
Dutch Bakery and Coffee Shop
Sookjai Thai Restaurant
Best Buy Convenience
Ocean Garden Restaurant
Don Mee Restaurant
Seventeen Mile Pub
As well as 2000 Transit Bus tickets, adding the sum to just over one million five hundred thousand dollars equivalent of non-refundable credit, and,
 as per the grand exasperation of having the Charter violating policy for so long and so as to make an example for every other municipality in Canada where there exists the phenomenon of public sleeping, the City be made to acquire the property on Hillside, between Blanchard and Quadra, known as ‘the field at CanWest University’ (or its equivalent) and give it to me while zoning it as a tax exempted residential property. After seven years the land will be returned to the City as a park with a succinct covenant ensuring its sanctity.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
DAVID ARTHUR JOHNSTON
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